In this episode, assistant editor Rohit Sarma discusses the “basic structure” doctrine of the Indian Constitution on the occasion of its 50th anniversary with Moiz Tundawala and Anuj Bhuwania, Professors of Constitutional Law at the Jindal Global Law School in India.
Rohit Sarma: 24 April 2023 marked the 50th anniversary of the landmark Kesavananda Bharati judgment of the Indian Supreme Court. This judgment introduced what is known as the “basic structure” doctrine, which is also often referred to as the doctrine of “unconstitutional constitutional amendments”. Since then, the doctrine has travelled to many other jurisdictions and is seen by numerous defenders of liberal constitutionalism as a possible bulwark against rule of law or democratic backsliding. Today, we will try to better understand the basic structure doctrine and assess whether it can in fact save us from authoritarian or illiberal rule. What is the Kesavananda Bharati judgment, and what is the “basic structure” doctrine?
Moiz Tundawala: The Kesavananda Bharati judgement is one of the most important judgements in the history of Indian and even global constitutionalism. It was unprecedented: it was decided by a 13-judge constitutional bench of the Supreme Court – never again has such a bench been constituted. Perhaps India has the longest Constitution in the world, and this is one of the longest judgments in the history of Indian constitutionalism, thereby making it one of the longest in global constitutionalism as well.
At its most elementary level, the “basic structure” doctrine would suggest that there are certain essential features of the Constitution – its basic structure – which cannot be abrogated, even in the exercise of the Parliament’s constituent power that is used to amend the Constitution.
The judgment was decided by a majority of 7 to 6, it has travelled far and wide, and it is now regarded as a basic postulate in global constitutionalism.
Anuj Bhuwania: Beyond the constitutional context, it is worth looking also at the political context. The former is quite straightforward: the process of amending the Indian Constitution was a rather simple one, whereby for most of the text a 2/3 majority of both Houses of Parliament would be adequate to amend the Constitution, while for certain other provisions half of the state assemblies were additionally required for the amendment to be ratified.
Since the Constitution of India came into force in 1950, there had been a plethora of amendments – there were already 23 by 1971. Most of these amendments were passed between 1959 and 1967, a period in which there was not only one-party rule – with the dominance of the Congress Party – but also more than a 2/3 majority for the Party which lasted from 1952 to 1967. In the ensuing years, up until 1971, the loss of that majority made the process of amending the Constitution more difficult.
This was the era of Indira Gandhi’s self-allowed socialistic program. Because of the high number of amendments passed in this period, there was the question of whether these were themselves constitutional. Before the Kesavananda Bharati judgement, three other very important judgments were given: Sankari Prasad, Sajjan Singh, and Golakh Nath. Golakh Nath was an important signpost. The judgment was delivered in 1967, which was also the year in which the Congress Party scraped through elections with a simple majority and so lost its 2/3 majority.
Afterwards, the process of amending the Constitution became much more difficult and the Court even argued that fundamental rights were unamendable. This is important because fundamental rights, in the period between 1950 and 1973, were essentially traced back to one specific right, that is the right to property in Article 31 of the Constitution. This was seen as a sort of bulwark against the Indian government’s policy to carry out radical reforms to redistribute land. Thus, the argument of the Court that fundamental rights were unamendable was seen as an attack on the attempt to carry out these reforms.
Mrs Gandhi was then able to argue that the Court was standing in the way of the mandate of the Constitution to achieve what is still called the Social Revolution. Essentially, from 1967, the argument leading up to the 1971 elections was that the constitutional text, in a sense, was standing against the constitutional mandate.
Indeed, the trigger for the 1971 elections – the first mid-term elections in history – was a series of judgments the Supreme Court gave which stopped government policy, for example, on bank nationalization.
This election, in a sense, was fought against the Court. Mrs Gandhi was arguing that she needed a mandate from the people to make sure the Constitution was less of an obstacle on the path towards radical socio-economic reforms. Arguably, she got that mandate, in that she obtained the biggest majority that had ever been achieved and immediately thereafter her party brought about three very radical constitutional amendments – 24, 25, and 26. In fact, in the years from 1971 to 1977, which was the given term of the Lok Sabha (the lower house of the Indian Parliament), as many as 19 constitutional amendments were approved. All this was a real threat to the sanctity of the constitutional text. These were not just routine amendments, nor amendments regarding specific issues of implementation. This was a radical overhaul of the Constitution’s promise. Therefore, Kesavananda Bharati became very important.
The story that Anuj has just provided is an Indian one. But is the “basic structure” doctrine a purely Indian innovation, or were the judges looking elsewhere for inspiration?
Moiz Tundawala: Let me start by talking about the American constitutional project. As you know, Article 5 sets very difficult requirements to amend the Constitution, and that is essentially because of the American constitutional ideology. This is premised on a deep investment in the wisdom and authority of the founding fathers, in spite of the problems of slavery. Indeed, Americans believe the Constitution enjoys some degree of sanctity, whereby the text is almost sacred and amendments, accordingly, are very difficult.
When we look at the Indian constitutional model, instead, it appears futuristic.
The Indian political project was the inauguration of the decolonizing movement, it was a break from the past in the attempt to unlock the country from the waiting room of colonial historicism. The constitutional text was believed to be a means to achieve a social revolution.
Therefore, the process of amending the Constitution had to be a very flexible one. Whereas the American debate was between Madison’s reverence for the past and Jefferson’s point that wisdom is not the monopoly of a single generation, B. R. Ambedkar – who was the chief draftsperson in the Indian Constituent Assembly – was very clearly citing Jefferson in favour of a flexible amendment process.
With that given, the other country with which India shares the break away from the past is Germany. Connections could be drawn with most 20th century post-war Constitutions, but most significantly with the German basic law of 1949. However, India makes a very crucial departure even from the German enterprise. I would say that the German model is a very strongly constitutionalist model investing in the value of constitutional patriotism. It is deeply suspicious of sovereignty because it is frightened from the Nazi takeover of the state. On the contrary, sovereignty is absolutely front and centre in the Indian constitutional imagination. More than a constitution of legality, or a constitutionalist Constitution, India’s text is primarily a constitution of sovereignty that inaugurated the decolonizing movement.
In India, the constitutional project was an exercise of constituent power through which the will of the people was to be expressed and articulated. Importantly, however, this will of the people did not merely rest with the interpretation of the Indian Constitutional Assembly, because the Indian Constitution is a very futuristic document. In this sense, the text is a means to an ends of a social revolution. However powerful the state can be, India was working with a dynamic concept, a dynamic understanding of constituent power. Conventionally it is said that India picked up the “basic structure” doctrine through a lecture given in Banaras Hindu University by Dieter Conrad, who was a German academic working both in Heidelberg and South Asia. As already mentioned, the German constitutional model reflects an anxiety with sovereignty: among other things, the text includes the so-called “eternity clause”, whereby certain articles, such as on the principle of dignity and the federal arrangements, are unamendable. In this regard, Conrad, borrowing from Carl Schmitt and the French thinker Maurice Hauriou, was even arguing that there are certain implicit limits to the amending power.
All this certainly came to India from the German model, but the two Constitutions are set apart from each other because of the Indian political culture in favour of a dynamic constituent power. By looking at Kesavananda Bharati, and considering the “basic structure” as a stand-alone doctrine, one notices that the Court is merely inserting itself as another player along with other constitutional actors in the political field. However, there is a problem here: the Court fashions itself as a constitutional guardian, but it also becomes the very master of the Constitution. All over the world, after the first decapitation of a king and the consequential opening of an empty space for power by democratic means, we have seen such a space filled differently across countries. In India, it was the Supreme Court which acts in the name of democracy – not in the name of fundamental rights.
My argument would be that the Court generates political power in the language of democracy. Then, by fashioning itself as the guardian of the Constitution, the Court starts speaking in the name of the people themselves.
It is worth looking at what has happened with the doctrine since it was first introduced. Anuj, recently I heard you speaking of the doctrine and arguing that it has evolved to a large extent over the years. Can you tell us more?
Anuj Bhuwania: After 50 years of this doctrine, I would argue that it was remarkably successful in what it was trying to do. There are two possible views of this doctrine, either modest or grandiose. According to the former, there was simply a problem with the provision regulating the amending process – Article 368 – because the process was particularly easy and there was inadequate entrenchment of the Constitution. To quote Dieter Conrad, and what he called the “argument of fear” and the extreme view of the Constitution, there are hypothetical instances where radical changes could be made to the Constitution and which would be allowed by Article 368 itself. Also it is important to note that in this period between 1967 and 1973 there are many other parts of the Constitution which are amended with an authoritarian mindset. All kinds of provisions could have been changed which could undo the constitutional design, such as making somebody President for life.
This is a problem that stems from the Indian constitutional design itself. The idea of distrust of the democratic majority is not adequately entrenched in the constitutional design. Indeed, in the first 23 years of the history of the Constitution, the idea that Article 368 had been misused was very much present in the constitutional debate. To be clear, the concept of “misuse” was recurring frequently yet not exclusively in relation to the amendment process, as there were other provisions that were allegedly misused such as examples of dissolutions of state assemblies. By and large, the argument is that the Constitution itself makes the process of “misuse and abuse” remarkably easy. This is a contradiction of the constitutional text that Mrs Gandhi weaponised effectively in 1971 when she pushed through radical amendments soon after her landmark victory: the constitutional text is seen as an obstacle to the constitutional project.
In my view, therefore, Kesavananda Bharati left a successful legacy, especially if one looks at it modestly. Indeed, the “basic structure” doctrine has addressed the ease of amendments and made it less likely that certain types of amendments – such as those passed in Mrs Gandhi’s time – would be resorted to. So the misuse of the amendment powers has been adequately dealt with. In my view, I cannot think of a single constitutional amendment passed after Kesavananda Bharati which would seem perverse. Of course, there were attempts in this sense. Perhaps the most relevant case refers to the 42nd amendment in 1976, which tried to expressly address and then undo the “basic structure” doctrine: it tried to change 59 provisions – including Article 368 – but the case was struck down, as with many other attempts. Although scholars and commentators have criticized the impact that such cases have had on judicial review, I would not agree with this criticism. This would be valid if amendments could be cited where the “basic structure” doctrine should have been deployed but was not. I cannot recall any such cases.
Moreover, the doctrine is an extreme solution to an extreme problem. Therefore, it should be deployed very carefully – as if it were a nuclear weapon.
Unfortunately, the Court has been very inconsistent in its use of the doctrine: initially, it should have been used only for constitutional amendments but, over the years, it has been deployed also for questioning the constitutionality of statutes. In my view, this is both unnecessary and dangerous. It is unnecessary because I can hardly think of any instances where a provision would be constitutional with regard to the text of the Constitution but would require the “basic structure” doctrine to strike it down. Also, the basic doctrine structure is needed when there is no other basis to strike down amendments whereas there are other grounds available for statutes. It is dangerous because of the judicial indiscipline present in India, whereby the judiciary is not sticking to basic norms of functioning by relying upon judicial minimalism. This is partly a result of the Indian judicial culture itself.
In relation to the Supreme Court’s nuclear option, can we trust the Supreme Court in deploying it? Because, of course, it is not a good idea to leave nuclear weapons in the hands of institutions or people that you cannot trust.
Moiz Tundawala: In Calcutta, where I grew up, there is a culture of sport quizzing – from football to cricket. It used to be said in school that whenever you are asked a football question and you don’t know the answer, just say Pelé. I feel that something similar is happening with the “basic structure” doctrine: it becomes a very convenient alibi for a rigorous constitutional argument grounded in law and precedents.
As far as the trust in courts is concerned, as Anuj said, the “basic structure” doctrine has done its job – namely to solve a specific problem in the age of the total state of using political means to solve social issues.
Whereas the American political culture, contrary to the ideology of its own Constitution, has been at its best when the base ideology was departed from, Indian constitutional ideology is that the text is only a means to attain a social revolution, therefore it is logical and common-sense to try to apply some breaks.
This happened against Indira Gandhi’s attempt at radical reforms, which would have instrumentalized the Constitution to serve her own political purposes. In this sense, the “basic structure” doctrine supplemented the constitutional project in the age of the total state with the language of law and constitutionalism.
However, today we have moved, globally, from the age of the total state to what Mattias Kumm would call the age of the “total constitution”. While some scholars celebrate this historical turn as the equivalent of the “end of history” in constitutionalism, I believe there is a problem to be reckoned in. As Carl Schmitt already clarified, and scholars such as Ran Hirschl and Martin Loughlin have written extensively about, the more you try to legalize politics the more you end up politicizing the law. To use the German constitutional metaphor, the “basic structure” doctrine now seems to have a sort of radiating effect: it has to percolate into every nook and cranny of the constitutional and political field.
I know there are people who argue that we need a new theory of judicial review, but the “basic structure” doctrine already gives us all the power we need to address whatever political question emerges out there. The bigger problem, instead, is whether there is the judicial will to use the doctrine, as the low number of amendments that have been struck down could show. In addition, the specific Indian context was characterized by a clash between conservative and liberal courts, as well as between conservative courts and progressive and emancipatory legislative and executive powers, but this ideological battle no longer exists. To be fair, there still is a sense of interinstitutional conflict, but the language used by all these institutions is sounding the same.
In a sense, therefore, the “basic structure” doctrine cannot act as a bulwark any longer, because it was not designed for this age of authoritarianism. Unlike the times of Indira Gandhi and her anti-constitutional politics, today’s politics of populism and authoritarianism in India are, to some extent, the consequence of an excess of law.
Hindutva, which is the Hindu supremacist national ideology of our time, is translating itself into the language of constitutionalism. I do not think that legal measures alone – in the form of the “basic structure” doctrine – can be a sufficient response to the problem. As long as we remain a democratic state, we need to find a political, democratic solution.
I’m hearing echoes of what you said right now with an article that you wrote recently with The Wire. You wrote: “Hindu Rashtra [the Hindu nation] is not waiting to be realized in a distant future through a constitutional amendment. It is very much present in the here and the now, with a will to become the sole proprietor of our constitutional field. And Kesavananda Bharati v State of Kerala has not been able to save us from it”. Anuj, do you think the basic structure doctrine can save us from authoritarianism?
Anuj Bhuwania: This is the age of what Kim Scheppele has called “autocratic legalism”, with the best examples being Hungary and Turkey and the sort of big-bang constitutional changes implemented there. India, on the contrary, has not seen that: it is instead described as an electoral autocracy. All the changes brought about in the last 9 years have not changed the Constitution. One way to look at it is to argue that the “basic structure” doctrine has been working as no changes have been made, while another option is to say that those changes are not required because the Constitution is already compatible with a certain political project. It has been claimed that India already is a Hindu state because the electoral route was available for this. How would it be possible for the “basic structure” doctrine to be a bulwark if the Constitution itself is compatible with the project?
We have to reflect on how the Indian Constitution allows for a certain kind of majoritarian rule. The text was enacted by an Assembly that was almost entirely dominated by one party, and the idea of distrust of that elective majority was not taken as seriously as it should have been. This issue has also haunted areas other than the amending process, such as Articles 3 and 4 that enable the legislature to change the status of a federal unit to make it administered directly by the central government. This provision, which has been always there, was instrumentalized in 2019 to change the status of Jammu and Kashmir into union territory. Recently, I have heard demands that Kerala should also become a union territory. They are arguing essentially any region where the ruling party does not have electoral appeal – or it is not likely to have it in the possible future – should no longer be a federal unit.
In principle, this position is explicitly allowed by the Constitution and, once it happened in Kerala, arguably it can happen in another state – such as Punjab or Tamil Nadu. Therefore, we have to ask uncomfortable questions about the constitutional design that allows for this outcome.
Although India does not represent the kind of “autocratic legalism” that characterizes Hungary and Turkey, we may have a 2.0 version whereby the constitutional architecture offers conditions for an illiberal democracy to be sustained quite sufficiently.
Moiz Tundawala: When the Constituent Assembly was framing the constitutional text, a famous communist leader, Somnath Lahiri, criticized the “rights” Chapter for imposing too many restrictions on fundamental rights – as if it were written by a police constable, in his own words. When Indira Gandhi imposed her emergency, the liberal commentators read it as the exception to a usually democratic order, but the critical thinker and founding father of the subaltern perspective, Ranajit Guha, wrote a piece titled “Indian Democracy: Long Dead Now Buried” about the authoritarian streak in the Indian Constitution.
In a way, this threat has always been there.
However, for all the hypocrisy of the constitutional text, it was designed to serve a social revolution, which was progressive and emancipatory. Conversely, the present regime represents an additional issue: a sort of Hindu supremacist nation-state model that goes beyond the authoritarianism fostered by the constitutional text.
By focusing only on the constitutional context, it seems that Jawaharlal Nehru almost anticipated Modi. But we have to supplement the legal and constitutional context with the proper reckoning of political ideas and ideology. In this sense, there has been a fundamental change at the ideational level.
I am expected to conclude with a value judgement, but I would rather quote Ambedkar: however good the Constitution is, it might turn out not to be good if the people were administering it bad; however bad the Constitution is, it might do its job well if people administering it happen to be good. I believe that there has been a fundamental change at that level, and there must be a more serious legal, political, and constitutional reckoning. During the 50th Anniversary of Kesavananda Bharati, celebratory pieces were published which praised the capacity of the “basic structure” doctrine to protect the liberal democracy from turning into a Hindu Rashtra. It is undeniably true that the doctrine has done its job, but we need to look beyond it for political responses to the problems that we are facing now.
Anuj:
There is a fundamental element in the way that the Indian constitutional design was thought of which does not sufficiently entrench constitutionalism itself. The idea of distrust of a democratically elected government undermines, to some extent, the essence of constitutionalism.
If one compares the quote from Ambedkar with Madison’s famous quotes “enlightened statesmen will not always be at the helm” and “if men were angels, no government would be necessary”, we get to an axiomatic idea of checks and balances. This was not taken as seriously as it should have in the Indian constitutional design. There was a certain faith in the elected government being able to carry out policies in a sort of bona fide manner with good faith. This is perhaps an instance of what the historian Francis G. Hutchins called the “illusion of permanence” referring to the late 19th century when the British thought that their empire would never end. Similarly perhaps there was a period when the Congress Party thought it might have power forever or for the foreseeable future. So that idea of enacting a constitution that institutionalizes the mistrust is just not there. It is remarkable, and almost ironic, that some of the people who articulated this point in the Constitutional Assembly included Shyama Prasad Mukherjee, one of the ideological forefathers of the party who are currently in power. During a famous exchange over the first amendment, Mukherjee actually said to the Congress that they would not be in power forever and you will see what happens then with regard to the provisions you are enacting. Precisely that kind of way of thinking about the Constitution was unfortunately lacking and therefore we can see that the Indian Constitution is quite compatible with the Hindu nationalist project and therefore this is quite compatible even with the “basic doctrine” structure.
In collaboration with Giancarlo Grignaschi and Lucie Hunter
This transcript has been edited for length and clarity.
