‘A good legal doctrine is non-partisan, doesn’t depend on party in power… Basic structure guards against authoritarianism on all sides’

Why is it important to acknowledge that the basic structure doctrine has survived five decades?

I don’t think in 1973, many public commentators or counsels would have given the doctrine a 50-year shelf life. In fact most of the initial academic and lawyerly criticism, H M Seervai for example, was negative. Many people, including the political class of the day, thought it should be overruled. So I think 50 years on, it is remarkable that the doctrine exists. That has been fleshed out and is now generally seen as acceptable by all. There is no legal counsel who would argue that somehow the doctrine was misplaced. There are not too many judges in the country who think that a misdirected court announced the basic structure doctrine.

You say that there is an acceptance of the doctrine..but there are questions raised on the legitimacy of judicial review applying the basic structure doctrine…

In a noisy democracy that we are, it is reasonable and good that people raise serious questions about all of our governing laws, our Constitution, our statutes. We must have robust debates about court decisions. The idea, however, that there’s something particularly wrong or particularly suspect about the basic structure doctrine is odd because as a common law doctrine, it shares as much as 60-70% with the law of this country, which is stated by judges which we nevertheless follow. Is there something particularly amorphous or indistinct about the doctrine? No. Doctrines evolve by a court announcing a doctrine and then continuously refining it over a period of time. This has happened with the basic structure doctrine.

What can the court do better?

Academics like me who spend a lot of time reading and writing about it always say yes, we can do better. We can be clearer. We can have a more distinct method of application, but real life… there is nothing so remarkable about the basic structure doctrine that makes it not decipherable or not intelligible. So in conclusion, I just say that like many other common law doctrines, it’s reasonably clear and has been applied over 50 years. So we have a record. We don’t have to speculate about it being too ambiguous.

How do you see the criticism that the doctrine steps on parliamentary powers?

The doctrine of parliamentary supremacy is an English constitutional law doctrine. It has no place in Indian constitutional law. Our Constitution puts in place limited government and limited government means that no institution, not the courts, not parliament, no institution can claim supremacy over all others in all matters. So this language of supremacy is entirely misplaced in a democratic constitution and to the extent that someone invokes it in 2023, it is horribly mistaken and horribly out of date.

How do you see the court’s record on use of the doctrine?

Anybody who has looked at the record can easily verify that in less than 20 cases, the SC has used the basic structure doctrine to shape an outcome that limits either executive or legislative power. Twenty cases in 50 years, by any measure of counting, is a very sparing use and so the idea that we have a doctrine here that is egregiously used, curbs all other institutions, is a mistake. We might have a discussion about the proper boundaries of judicial review in other cases, but the basic structure doctrine cannot carry that blame. We might have…we might want to curtail some other practices in courts and there might be a reasonable argument to be made there, the argument cannot be made against the basic structure review.

A good legal doctrine is one that is non-partisan in its impact. It doesn’t depend on the political party in power and by that token, if one looks at something like Article 356…state emergencies… President’s rule in the states doctrine. We can see that by and large, the court has managed to apply those rules in a way that it doesn’t matter who is in the Union government or who is in the state government. It applies in this non-partisan framework. Basic structure review has had the same effect. It guards against authoritarianism on all sides.

The political context of 1973 and the anxiety of the court at that time…does it still apply today?

The Kesavananda Bharati decision today is being discussed in current political commentary, without an adequate understanding of political history. Context is very important. In 1973, if one reads the voluminous judgment, the underlying current is to put in place a doctrinal framework that would prevent authoritarianism. At that point in time, the concern was with the authoritarianism of a dominant Congress party and Prime Minister Indira Gandhi, and the view was that while some changes on the property rights, which is the subject matter of the case, were alright, we must guard against future authoritarianism. Most of the references in the case are to Weimar Germany and the 1930s in Germany and hence, what was in the mind of judges was to create something that protected against authoritarianism. By that token, the doctrine is successful, because India, unlike most of our South Asian neighbours and many developing countries, in the post-colonial period, we have not gone through a constitutional breakdown and crisis. We just need to look at Sri Lanka and look at Pakistan or Bangladesh or Nepal to know what the costs of the constitutional crisis are. So to that extent, the doctrine has worked. It guards against an authoritarian surge. It guards against constitutional breakdowns. But the most remarkable thing about doctrines and how doctrines can be successful is when they guard against excesses on all sides.

So what was striking about the rise of the Third Reich in Germany was that the Third Reich used constitutional means. They stood for elections. They didn’t win an overwhelming majority — something like 30% of the popular vote — but took power and then used the emergency provisions of the constitution to override the constitution and put in place an authoritarian dictatorship. The question that German legal scholars ask is could there be anything that the courts could have done or that the constitution could have done to prevent that from happening. And that idea is the originating idea for the basic structure doctrine. If you ask and answer the question, what can courts do..they can come up with something like the basic structure which is what the Indian courts did in 1973 and is seen as a direct response to how a liberal, constitutional democracy can maintain a constitutional democracy.