Does a free nation have the right to shape its present and determine its future, unhindered by some “universal” values of external provenance, and unshackle itself from the “mind-forged manacles” of received ideas? The debate, which had raised great passions in 1951 during the discussion on the First Amendment of the Constitution has now been resuscitated by the assertion of Ranjan Gogoi that the “Basic Structure Doctrine” has “a very debatable jurisprudential basis”. The depiction of his maiden speech in the Rajya Sabha by this newspaper (‘MP Gogoi v Justice Gogoi’ IE, August 9) as merely “partisan” (Gogoi, a former Chief Justice of the Indian Supreme Court was nominated to the Rajya Sabha by the NDA government) needs careful questioning. It is this form of censorship that stymies debate on the proper functioning of the Constitution.
The issue that led to the debate in the Rajya Sabha concerns the competence of the Union executive, acting through Parliament, to curtail the power of the Delhi Government over services. With its adverse effect on the federal balance — a key component of the Basic Structure Doctrine — the Bill appeared to contravene current judicial practice. As such, though it was ultimately passed — the Union government had the numbers — its legitimacy remains compromised by a soupcon of constitutional impropriety.
The significance of the larger issue can hardly be overstated, particularly at the current conjuncture in Indian politics. Those who underestimate the significance of the issue would do well to remember that the Supreme Court will revisit this spot once the hearings on the abrogation of Article 370 and the Jammu and Kashmir Reorganisation Act 2019 gather steam. At issue today are three essential questions: How fundamental are specific fundamental rights in practice? Can such rights be amended? And, who would have the last word on their application?
This brings us back to 1951, when Parliament debated the First Amendment, seeking curtailment of the fundamental right to freedom of expression. It is not a moot question. As one can gather from the Constituent Assembly Debates, Article 21 of the Constitution privileges “procedure established by law” over American-style “due process”, policed by the Supreme Court which has the last word. This, and Article 368, were designed as a joint mechanism to keep the state and society in sync through suitable and incremental amendments to the Constitution. Both articles are comprehensive, with no “no-go” area excluded from their purview. A critical dissection of the discourse around the political usage of the Basic Structure Doctrine shows how putting it above politics helps those opposed to specific legislative measures, who instrumentalise it in order to bolster their interests. That calls for an urgent review of the whole doctrine and to bring it back in again to the public sphere for dispassionate dissection.
The Basic Structure Doctrine emerged from the Kesavananda Bharati judgment of the Supreme Court, delivered by a majority of 7:6 on April 24, 1973. It held that Parliament could not alter the basic structure of the Constitution by an amendment. There is no exclusive and definitive list of what the basic features are, for the judiciary decides this on a case-by-case basis. In consequence, as cases accumulate, the list of areas off-limits to the executive gets longer. This creates a peculiar political environment where frenzied elections generate tall mandates that are undeliverable. The executive remains hamstrung, constrained not just by limited material resources but bound by limited and uncertain legal room to manoeuvre. The consequence of this gap between parliamentary competence and executive impotence knocks the wind out of the power and capacity of electoral democracy. The political culture it breeds is known as “cheap talk” in game theory, seen in such emphatic gestures as grandstanding and heady rhetoric followed by inaction, empty rhetoric and costless, non-binding, unverifiable communication between politicians and the electorate.
The Basic Structure Doctrine puts “procedure established by law” below “due process” in the functioning of the legislative process. Its political profiling as “sacrosanct” puts it beyond the ken of politics. In 1951, right at the outset of post-colonial India’s journey into uncharted territory, no less a democrat than Prime Minister Jawaharlal Nehru had taken the bold step to initiate the process to restrict the freedom of speech and expression and got Parliament to pass the First Amendment. In retrospect, one is grateful for his boldness and sagacity in undertaking the necessary changes in the core principles of the Constitution for the validation of zamindari abolition laws and provisions that stipulated that the right to equality does not bar the enactment of laws that provide special considerations for underprivileged sections of society. Article 368 of the Constitution clearly stipulates that “Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.” (Emphasis added).
The countervailing forces of Indian politics — a watchful judiciary and an empowered legislature, itself replete with control mechanisms such as the committee system, accountability to two different electorates, following different electoral cycles — are built into the political system through the intricate scheme of the separation of powers. At its best, the political system operates on the principle of the joint family — no one hand holds all the cards. This is the bulwark that buttresses the deepening and resilience of Indian democracy. If the political system freezes its capacity to adapt the Constitution to challenging times, the state would not be able to withstand the pressures emanating from the deeper layers of society and history. What one needs in India today is more debate, not less, and political discourse focused on facts and logic, and not on diffuse, emotive categories of love and hate.
The “cancel culture” of foreclosing debate serves neither the cause of justice nor of democratic deepening and consolidation. In the acrimonious political atmosphere in which the country finds itself today, it is important to remember the words of that visionary — Pandit Jawaharlal Nehru and his ‘Freedom at Midnight’ speech — “when the soul of a nation, long suppressed, finds utterance”. Parliament is the instrument of that collective voice. Its autonomous and unhindered functioning are essential for Indian democracy.
Seen in this light, the Basic Structure Doctrine, in the apt metaphor of Chief Justice D Y Chandrachud, is the “Pole Star” of Indian politics. A competent navigator in a stormy night would be well-advised to use it to fix his own location and steer his ship as well as he can. Those who do nothing except keep gazing at the Pole Star are likely to go down with the gathering storm, of which one can already hear the distant rumbling.
The writer is an Emeritus Professor of Political Science, Heidelberg University, Germany. He is the author of Governance by Stealth: The Ministry of Home Affairs and making of the Indian state
