Legitimacy of the basic structure (The Hindu)

Mains Paper 2: Polity
Prelims level: 103rd Amendment
Mains level: Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure

Context

• It has now been more than 45 years since the Supreme Court ruled in Kesavananda Bharati v. State of Kerala that Parliament’s power to amend the Constitution was not unlimited, that the Constitution’s basic structure was infrangible.
• There have already been grumblings over the rule’s legitimacy in certain quarters in response to challenges made to the recently introduced 103rd Constitutional Amendment, which provides for reservations based on economic criteria in government jobs and education.

Unwarranted censure

• The common criticism is that the doctrine has no basis in the Constitution’s language.
• The phrase “basic structure”, it’s argued, finds no mention anywhere in the Constitution.
• What’s more, beyond its textual illegitimacy, its detractors also believe the doctrine accords the judiciary a power to impose its philosophy over a democratically formed government, resulting in something akin to what Union Minister Arun Jaitley once termed as a “tyranny of the unelected”.
• Ever since the Constitution was first amended in 1951, the true extent of Parliament’s power to amend the document has been acutely contested.
• Only months earlier Parliament had introduced the contentious 17th Constitutional Amendment.
• Through this, among other things, a number of land reform legislations had been placed into the Constitution’s Ninth Schedule.
• This meant that those laws, even when discriminatory, were immunised from challenge.

Interpreting ‘amendment’

• The court, in Golaknath, didn’t’ quite feel the need to go this far. But, ultimately, just four years later, in Kesavananda Bharati, it was this formulation that shaped Justice H.R. Khanna’s legendary, controlling opinion.
• While the judge conceded that it wasn’t possible to subscribe to everything in Conrad’s arguments, this much, he said, was true: “Any amending body organized within the statutory scheme, howsoever verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its Constitutional authority.”
• Yet, the limitation, wrote Justice Khanna, wasn’t as much implicit from a reading of the Constitution as a whole as it was evident from the very meaning of the word “amendment”.
• According to him, what could emerge out of an amendment was only an altered form of the existing Constitution and not an altogether new and radical Constitution.

Questioning over amendment

• This interpretation, as Sudhir Krishnaswamy has shown, in some depth, in his book, Democracy and Constitutionalism in India, is compelling for at least two reasons.
• First, it represents a careful reading of the text of Article 368, and, second, it delivers an attractive understanding of the moral principles that anchor the Constitution.
• Article 368 grants Parliament the power to amend the Constitution, making it clear that on the exercise of that power “the Constitution shall stand amended”.
• Therefore, if what has to remain after an amendment is “the Constitution”, naturally a change made under Article 368 cannot create a new constitution.
• Such a construal is also supported by the literal meaning of the word “amendment”, which is defined as “a minor change or addition designed to improve a text”.
• Hence, for an amendment to be valid, the constitution that remains standing after such a change must be the Constitution of India.
• It must continue to possess, in its essence, those features that were foundational to it even at its conception.

Conclusion

• We must remember that constitutions are not like ordinary laws. Interpreting one is always likely to be an exercise fraught with controversy.
• But such is the nature of our political design that the court, as an independent body, is tasked with the role of acting as the Constitution’s final interpreter, with a view to translating, as Justice Robert H. Jackson of the U.S. Supreme Court once wrote, abstract principles into “concrete constitutional commands”.
• It may well be the case that the basic structure doctrine is derived from the abstract.
• But that scarcely means it doesn’t exist within the Constitution.

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Prelims Questions:

Q1. Which among the following is not true in regard to First Past the Post (FPTP) system and Proportional Representation (PR) system?

a) In India all key representatives, except President and Vice President are elected via FPTP system.
b) FPTP allows voters to choose between people rather than between parties.
c) PR ensures that smaller parties get representation in the legislature
d) PR encourages new parties to emerge and more women and minorities to contest for political power.

Answer: A

Mains Questions:
Q1. Would not such an amendment strike at the root of the Constitution’s Preamble, which, in its original form, established India as a sovereign democratic republic?