Defending the basics of the Constitution
ARVIND SIVARAMAKRISHNAN
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Basic structure review involves the judiciary in very difficult and varied issues
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DEMOCRACY AND CONSTITUTIONALISM IN INDIA — A Study of the Basic Structure Doctrine:
Sudhir Krishnaswamy; Oxford University Press, YMCA Library Building,
Jai Singh Road, New Delhi-110001. Rs. 625.
Many arguments around judicial review and judicial activism seem to be motivated mainly by whether or not the protagonists like any given ruling, but they rather ignore the central issue of the basic structure doctrine and the large body of constitutional literature on it. Sudhir Krishnaswamy, with meticulous analysis and argument, makes a notable attempt to fill this significant void in Indian political discourse.
Distinct form
The basic structure doctrine, first enunciated in Kesavananda in 1973, is an implied rather than an express power under Article 368 of the Constitution. Initially, it enabled judicial review of constitutional amendments which would damage the basic structure, or significantly alter the identity, of the Constitution. It is now a distinctive and far-reaching form of constitutional case law which can include remedies, and has been extended to cases on fundamental rights, executive action including proclamations of emergency, ordinary legislation, and administrative law. Krishnaswamy argues that basic structure review is applicable only when significant constitutional injury is likely, that the basic features can be identified only if the Constitution is considered as a whole, and that such features are neither identical to specified constitutional provisions nor textually tied to the phrasing of any particular Article.
As to proclamations of emergency, the situation remains unclear. The present position seems to be that basic structure review is applicable to actions by higher constitutional authorities, but only as a modified version of administrative law review. This leaves unaddressed a problem noted in Bommai: provisions like Article 356 can potentially ‘unsettle and subvert the entire constitutional scheme.’ The difference between the review of higher constitutional authorities’ actions and those taken at lower executive levels mirrors, as Krishnaswamy says, the English distinction between statutory executive power and prerogative powers; the latter are held by the monarch and, in practice, mostly vested in the prime minister. Although under the Indian Constitution the distinction is untenable and was effectively abandoned in Kapur, the judiciary is yet to strike down executive action on basic structure grounds.
Basic features
Given the nature of basic structure review, only a few cases have arisen, but it is now clear that Supreme Court rulings have established democracy, secularism, the rule of law, the separation of powers, and judicial review itself, as basic features of the Constitution. Nevertheless the rulings have their weaknesses. Krishnaswamy shows that even the creation of the principle in Kesavananda was achieved via arguments that were not as strong as they should have been, particularly in relation to the grounds for basic structure review. In Bhim Singhji, a single opinion has it that ordinary legislation is not accessible to judicial review and that if legislation contravenes the Constitution it must be struck down. In Indira Sawhney II, the phrase ‘roots of the Constitution’ conflates basic features and specific constitutional provisions. In Indira Gandhi and Minerva Mills, rulings seem to have confused ‘basic structure review’ and ‘rights compliance review.’ In Kapur, an opportunity to specify the relevant basic features was missed; in Bhargava, the decision relied upon a vast and unsubstantiated assertion about Indian society, and the court failed to specify what secularism would require in relation to state-funded educational institutions.
Extrinsic aids
Basic structure review, furthermore, involves the judiciary in very difficult and varied issues, such as the use of historical materials as extrinsic aids, and decisions on deferring to legislatures as embodying the will of the people. Krishnaswamy also points out that the judicial use of history has been positivistic, with little cognisance of historiographic questions. As to the status of legislatures, questions of their representative quality under, for example, the simple majority system and de facto executive dominance appear not to figure in the judicial deliberations.
That need not surprise, but it does show what basic structure review can involve, quite apart from the problems of devising a consistent method for the identification of basic features and of creating mediating rules to translate general requirements into specific ones in any given case. Krishnaswamy shows how the courts have made progress on both the tasks, and deals capably with objections to basic structure review, particularly those which regard it as amounting to excessive judicial creativity. His main argument here is that, despite the wide constitutional jurisdiction of the Supreme Court, it can only rule on matters brought before it.
Krishnaswamy’s overall defence of basic structure review is highly significant, and his intensive analysis is fortunately not harmed by poor proofreading and copy-editing. One key point emerging from the book is — as Albie Sachs says elsewhere — that constitutional courts often face serious philosophic issues arising from the urgent and pressing contexts of ordinary people’s lives. A second is that the Indian executive has repeatedly tried to legislate itself beyond constitutional judicial reach. What they would do without the constraint of basic structure review hardly bears thinking about.
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