50 years of basic structure doctrine | Only safeguard against majoritarian govt: Sr Advocate Ramachandran

Why have your views changed?

You can call me a qualified chastened critic of the doctrine now. Let me explain that. In 2000, the era of strong majorities seemed to have decisively ended. So in that context, I felt that the days of brute majoritarianism were over. Major constitutional decisions and major constitutional questions would henceforth be settled only through consensus and so, 50 years after the Constitution, the country should be given an opportunity to put the lessons of economics and politics into practice by amending the Constitution in whatever way the political class thought of it.

But even then I had argued that the basic structure doctrine, in spite of its conceptual inelegance, had served a purpose in the context of the Emergency, Mrs [Indira] Gandhi’s election case. It reminded a still-fledgling democracy of the perils of brute majoritarianism and those days were over. But 23 years after that critique of mine, we seem to be back to the era of overwhelming majorities. And so it seems that that doctrine acts as a protection. And I’m sure you will agree with me that 23 years is a long enough period in a person’s life for him to say that he’s lived a bit, he’s learnt a bit.

Why do you say it is conceptually inelegant?

It is counter-majoritarian in nature and that power is exercised, after all, by unelected judges. That is something which the judges also need to caution themselves about and I must say, to their credit, considering the few instances where they have interfered, that this is at the back of their minds when they apply the doctrine. I use the word “majoritarian” in a different sense from how you would normally understand majoritarian. I mean the will of the people as broadly expressed through the people whom they vote into power. So considering that, the court has been very restrained and if the court takes the view that the independence of the judiciary and its powers of judicial review are non-negotiable, no one can seriously have a problem with it.

Even the government’s criticism is that unelected judges exercise this power…

There’s no doubt that it’s a judicial invention. And it does depend on the subjective perception by judges of what the basic structure could be. Even in the Kesavananda Bharati case, you notice that different judges, in their enumeration of basic features, had differences. But I must say 50 years down the line, the imperfections of the doctrine have not led to judges running amok.

After all, ultimately, the number of cases after Kesavananda Bharati where constitutional amendments have been struck down is only six. While in those 50 years, there have been about 76 amendments to the Constitution.

So it is not, firstly, that every amendment gets challenged. And even if it is challenged, it is not that the court freely applies this doctrine. And therefore, the apprehension that the political class is prevented from carrying out important changes which they think may have a popular backing, those apprehensions are not justified. Even those few instances where the court has intervened, let’s remember, have been in the context of judicial review and independence of judiciary.

What according to you are the basic features of the Constitution?

The basic of basics would be sovereignty, which would also then mean for instance, if there’s an organisation like the European Union…if India were to be part of a regional economic union of that level, then there could be a challenge on the ground of sovereignty. Then, a republican form of government, as against a monarchy, would be basic. Secularism would be basic. Democracy would be basic.

But then a moot question would be, between a presidential form of government and a Westminster system, is there a major difference? I think there is, because our Constituent Assembly made a conscious choice in the context of the accountability of the executive. The parliamentary form afforded a greater degree of accountability on a day-to-day basis. So within the democratic system itself, parliamentary vs presidential can pose a problem and even, within the parliamentary system, suppose we move from the first-past-the-post system to a system of proportional representation, would that fail the basic structure test? That’s a moot question but I would think that these are some of the very broad basics.

What facets of the Constitution do you see being tested against the doctrine?

Now if you look at the challenge to the Citizenship Amendment Act, that would involve issues of equality and of secularism. If you look at the challenge to the watering down of Article 370, it would raise issues of federalism.