If indeed debates still have the possibility of bringing out wisdom and can lead to democratic well-being, a debate on the Basic Structure Doctrine will certainly serve some purpose. Subrata Mitra (‘Let’s debate Basic Structure’, IE, August 28, 2023) seeks to achieve what the ex-CJI’s maiden speech in the Rajya Sabha could not: To bring to the table the issue of the Basic Structure Doctrine. (Disclosure: This writer has more than an acquaintance with Mitra and has been a beneficiary of Subratada’s personal warmth.) Therefore, leaving aside his chivalrous defence of Ranjan Gogoi’s RS speech, it would be useful to enter into an argument with Subrata Mitra.
First, Mitra seems to endorse the view that Basic Structure has a “debatable jurisprudential basis”. One wonders how then it can be a “pole star” of Indian politics. But this inconsistency apart, it is necessary to separate the murky history of Kesavananda from the doctrinal outcome and its subsequent application by the judiciary. It is also worthwhile to remember that the judiciary, while reiterating the Basic Structure Doctrine, has only sparingly used it in the case of amendments.
Two, it is not clear what Mitra says when he bats for debating the Basic Structure. This could either be to challenge the doctrine outright or to complain that there is no clarity about what constitutes the Basic Structure. If it is the latter, there is much scope for agreement and a meaningful discussion. If it is the former, the debate is bound to be more complicated. In the first two decades since the Constitution came into being, a fierce debate did take place on the question of parliamentary sovereignty. Despite persuasive arguments in its favour, a written constitution does make it tough to adopt the idea of parliamentary sovereignty of the British variety. This produced a complicated battle between the judiciary and the executive (claiming the turf of the legislature). Therefore, it is possible to argue that the seeds of Basic Structure were already there in the arrangement that India adopted.
As for the debate about what constitutes the Basic Structure — while the point is well taken — would we have endorsed the judiciary foreclosing its meaning in the Kesavananda ruling itself? In a sense, there was bound to be ambiguity. At the same time, a continuous debate over what constitutes the Basic Structure is indeed good for the polity. In the past half-century of jurisprudence over the Basic Structure, have we had any superfluous elements being imposed upon as basic features? If not, then the doctrine has served us well and the judiciary has not exceeded its remit. As for the Delhi-related legislation, which has rattled both Gogoi and Mitra, the issue is less about overturning the judicial decision and more about weakening federalism — which surely should be a matter of concern.
Three, Mitra’s complaint that the uncertainty about basic features leaves the “executive hamstrung” is an interesting and unexpected defence of the ever-growing powers of the executive from someone who has studied the Indian state. It is more a part of the checks and balances game of see-saw among the major players which ensures that no one will emerge supreme. In times, when executive arbitrariness in governance is only increasing globally, this is something that a democracy should cherish.
Four, the rosy picture of executive accountability that Mitra’s piece paints is merely a fantasy. Modern democracies need more mechanisms to curtail the powers of all power holders. More specifically, in the Indian context, the “countervailing forces” such as an “empowered legislature…with committee system” are only fictional and the experience of the past 75 years has underscored the need to have some basic thresholds to restrict the exercise of power.
Five, the explicit and implicit theme in Mitra’s argument, the innate ability of the electorate to effect accountability, is an attractive and popular, but narrowly constructed idea of democratic accountability. Electoral majorities are always known to have fickle loyalties to democratic processes and democratic theory has often struggled to grapple with this dilemma of electoral validation and electoral appropriation. Doctrines like the Basic Structure Doctrine seek to address this dilemma.
Six, Mitra approvingly cites the First Amendment and the wisdom of Jawaharlal Nehru. He would surely be aware of the politics around the First Amendment. He lauds the amendment for protecting anti-zamindari legislation. However, he glosses over the fact that the First Amendment — in a problematic manner — combined a socially-progressive remedy (zamindari abolition) with a politically-regressive weapon of the state (curtailment of freedom of speech). Since then, the Indian state has consistently been suspicious of individual liberties, particularly of freedom of expression and organisation. In arrogating to itself the wisdom to define the bounds of these freedoms, the Indian state permanently restricted them. Subsequent governments have deployed this principle for anti-rights governance.
In such a dreary context, the Basic Structure Doctrine can salvage some of the vestiges of individual liberties.
Therefore, if the plea of Mitra’s piece is to discuss what all is — and should be — included in Basic Structure, he is indeed making a valid point: We need to keep debating what is the scope of rights to life and liberty, what is the relationship between rights and state powers, what exactly federalism means, and yes, in what ways the judiciary needs to be made accountable. But the tone and tenor of his argument seem more in tune with the intellectuals of the regime. By using the argument about the “procedure established by law”, Mitra is proffering a justification to “revisit” the Basic Structure Doctrine. As it happens, this doctrine has come to be identified with the idea of protecting the Constitution itself. Therefore, Mitra cannot be so naïve as not to realise that revisiting the Basic Structure Doctrine or the Kesavananda ruling is just another way of making a plea for rewriting the Constitution.
To be fair to him, he does not hide this. His piece opens with the provocative but transparent point: Can a free nation shape its present and future “unhindered by some ‘universal’ values of external provenance”? It is not very difficult to imagine what kind of Pandora’s box he is opening in referring to universal values of external provenance. This brave question will resonate much beyond his plea to debate the Basic Structure. Since both the opening and the concluding statements by Subratada are deeply political and expressly polemical, I am sure he will not mind an equally deeply political and polemical short response to his piece: Can a democracy be free to whip up hate, suspicion, chauvinism, usher in authoritarian governance and narrow the democratic space in a “democratic manner”?
By taking on the judiciary, Israel is trying this experiment. “Lunatics” there are pushing back. Does Mitra want us to be Bibi or the lunatics?
The writer, based in Pune, taught political science
