The Issue of Democratic subversion and role of Basic Structure Doctrine

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i. Scope of Democratic Subversion

Constitutional amendment is a pivotal instrument utilized to subvert democratic systems. In the aftermath of World War II, European nations that had undergone internal democratic turmoils endeavored to protect their newly created constitutional systems against potential disruptions. The newly formulated constitutions included portions that were designated as “unamendable.”[1] These sections were labeled as such because they set forth normative principles for democracy, human rights, and the rule of law, which were deemed inviolable even by legislative supermajorities. Substantive limitations on the amending authority are increasingly prevalent in the constitutions of transitional democracies, serving as a safeguard against the unpredictable adherence of the general population to the principles of legal governance.[2]

The Indian Constitution does not include any provision for such an insurance policy. The democratic transition of the nation can be attributed to its reaction to the prevailing British colonial dominance, rather than being only motivated by internal corruption. Furthermore, the architects of India recognized that an unduly rigid constitution could impede the forthcoming social upheaval in the country. Throughout the period of that revolution, India’s initial political leaders introduced amendments that were deemed anti-democratic.[3] However, the Supreme Court subsequently invalidated these amendments, citing the existence of an immutable “basic structure” inside the Constitution.[4] It is worth noting that this assertion was subject to considerable debate throughout that era.

These pathologies encompass executive overreach, which is often observed in democracies that are still in their initial period, inadequate checks and balances, and limited political competitiveness. Several scholars in the field of comparative politics have already considered the potential utility of employing basic structure-style adjudication in the context of nascent democracies. However, it is common for comparativists to primarily focus on the concept as a means to resist controversial constitutional modifications.

The reasons for the significant attention garnered by “unconstitutional constitutional amendments” are readily apparent.[5] The strategic utilization of modifying power is evident in nearly all endeavors aimed at subverting democracy from internal sources. d, the act of modifying the constitution is not the exclusive means, nor is it the prevailing approach, to undermine democratic principles. Frequently, the veiled internal threat to democracy is manifested through the use of executive orders or laws that adhere to constitutional provisions.[6]

The prevailing notion in contemporary India is undergoing a transformation, shifting from a narrow limitation on the power to amend to a more encompassing prohibition on actions that undermine democratic principles. Courts have invoked the idea of challenging the legitimacy of ordinary legislation and executive action. As a result, the subject matter now possesses normative significance that extends well beyond the particular issue of constitutional amendment that precipitated its emergence.[7]

The dissemination of the fundamental concept has become widespread in India, driven by the conviction that many antidemocratic practices do not require constitutional amendments. Indeed, the phenomenon of backsliding often arises because of a strategic endeavor to establish authoritarianism inside the confines of a formal legal structure, commonly referred to as “rule by law,” rather than through drastic alterations to the democratic system, such as those that may be achieved via a constitutional amendment.

This section enumerates certain political breaches that pose significant challenges, if not insurmountable obstacles when attempting to assess them within the framework of established constitutional principles in the respective countries. The presented evidence indicates that the process of authoritarian consolidation can take place through mechanisms that do not include constitutional modification.[8] This understanding is crucial as it sheds light on the reasons behind the continued utilization of the Indian basic structure concept, even in the absence of constitutional amendment.

ii. Kinds of Democratic Subversion

Capture of Independent Institutions

The entities responsible for supervising the executive and legislative branches are commonly established by legislative enactments. Therefore, the continuous existence and efficiency of these entities are contingent upon the discretion of the prevailing party. The recent occurrences in South Africa serve to highlight the significant scale of the issue. In the year 2011, entrepreneur Hugh Glenister lodged a legal challenge questioning the legitimacy of the legislation that resulted in the dissolution of South Africa’s Directorate of Special Operations (DSO).

The DSO, commonly referred to as the Scorpions, was established as a specialised law enforcement division in 2001 through legislative enactment. It operates under the jurisdiction of the National Prosecuting Authority (NPA), an institution endowed with constitutional recognition.[9] The Scorpions, as a component of the NPA, exercised the legally mandated autonomy that was afforded to the agency. The independence of the DSO played a crucial role in its achievements, although it also ultimately led to its downfall.

The Scorpions swiftly garnered a reputation as a proficient anti-corruption entity. The initiation of corruption investigations against prominent members of the African National Congress (ANC), including Jacob Zuma who would later become the President of the ANC, elicited strong reactions from ANC lawmakers, leading to heightened tensions. After assuming the presidency of the African National Congress (ANC) in 2007, Zuma took the lead in advocating for a party resolution that called for the dismantling of the Directorate of Special Operations (DSO).

The African National Congress (ANC) justified their decision by referring to the alleged biased application of the law by the Scorpions and their politically driven hostility towards Zuma. However, the motives of the ANC were perceived as dubious by numerous individuals. Zuma was not only subject to scrutiny by the DSO during that period, but an inquiry commissioned by the government had also earlier recommended that the agency remains inside the NPA.

In January 2009, the interim President, Kgalema Motlanthe, enacted two amendments that effectively eliminated the DSO (Scorpions) and established the Directorate for Priority Crime Investigation (DPCI), commonly referred to as the Hawks.[10] The Hawks proved to be an inadequate replacement for the Scorpions due to their incorporation into the police force, which resulted in a hierarchical structure that held them accountable to the Cabinet. Moreover, their operations were subject to direct oversight by the Commissioner of Police, who held a political appointment.

During the proceedings held before the Constitutional Court, Glenister encountered difficulties in presenting the disbandment of the DSO (Directorate of Special Operations) as a matter of constitutional significance. The assertion that the decision “undermines the structural independence of the NPA” was inherently flawed as the NPA does not fall within the category of independent institutions that are granted enhanced protection from political interference as stipulated in Chapter 9 of the Constitution.[11] Put otherwise, it appears that the legislation was impervious to constitutional challenges.

The Court expressed evident concern regarding the closure of a regulatory institution driven by political motivations in a nation that is already lacking in democratic safeguards. Simultaneously, the Court acknowledged that Glenister’s challenges to the statute were devoid of legal validity. In the seeming absence of constitutional means to counteract the situation, the Court elected to embrace a novel position put forth by an amicus, contending that a combination of constitutional provisions imposed a collective duty upon the state to form an autonomous anti-corruption body.

The majority opinion highlighted two key points. Firstly, it emphasized that according to section 7(2) of the Constitution, the state has a duty to uphold and advance the rights outlined in the Bill of Rights.[12] Secondly, it pointed out that section 39(1)(b) instructs courts to take into account international law when interpreting the provisions of the Bill of Rights.[13] The Court made an observation that corruption is a significant factor leading to abuses of rights, hence necessitating the fulfilment of the obligations imposed on the state by section 7(2).

Subsequently, the prevailing viewpoint posited that section 7(2) of the legislation “implicitly necessitates” that measures undertaken to execute the provisions of the Bill of Rights adhere to the principle of reasonableness. The implementation of an anticorruption programme would be deemed a justifiable course of action solely if it adhered to South Africa’s international legal commitments, which notably encompass the establishment of an autonomous anticorruption agency as mandated by anticorruption treaties.

In general, the DPCI failed to adequately fulfil its “domesticated” legal mandate due to a lack of sufficient insulation from political intervention. During the subsequent proceedings in November 2014, the Court invalidated specific modifications made to the enabling legislation of the DPCI, which had the effect of compromising its autonomy and rendering it susceptible to political influence exerted by the ANC.[14]

Manipulation of Legislative Procedure

The strength of political competition is typically diminished when opposition parties face constraints in presenting their arguments and pursuing their agenda within the legislative body. Frequently, ruling parties employ their legislative majority to curtail deliberation on bills and resolutions put forth by the opposing factions. Opposition parties may encounter prolonged periods of political marginalization in the absence of substantial avenues to enhance their visibility, uncover instances of mismanagement, and advocate for alternative policy measures. Two recent instances from South Africa serve as valuable illustrations.

In 2011, the National Assembly, which was predominantly controlled by the African National Congress (ANC), implemented a regulation that prohibited Members of Parliament (MPs) from proposing bills without obtaining prior authorization from the Assembly. In practice, members of the opposing party were required to seek approval from their political opponents before to presenting their legislative initiatives. The rule granted the African National Congress (ANC) full authority over the proceedings of the House, so enabling the party to exert significant influence over the national political agenda.

The legitimacy of the rule was challenged by Mario Oriani-Ambrosini, a Member of Parliament representing the opposition. Ambrosini argues that the violation pertains to two constitutional provisions.[15] Firstly, section 55(1) grants the Assembly the authority to “initiate or prepare legislation” and to engage in activities such as “considering, passing, amending, or rejecting any legislation”.[16] Secondly, section 73(2) grants Cabinet members, Deputy Ministers, Assembly members, and committees the right to introduce Bills in the Assembly.[17]

Ambrosini experienced an unfavorable outcome in the High Court but achieved a favourable outcome in the Constitutional Court. The High Court determined that the rule served to implement the “majoritarian principle” inherent in South Africa’s democratic system. However, the Constitutional Court acknowledged that the concept of majoritarianism in South Africa differs from majoritarianism in nations that frequently experience transfers of power between political parties.

By employing a “purposive interpretation” of section 55, the Court determined that it is imperative to evaluate the section while keeping in mind the necessity of actualizing the constitutional objective. In this interpretation, the authority to propose legislation was not limited to “the collective membership of the Assembly,” but also encompassed individual Members of Parliament. According to the Court, the ability of each Member of Parliament (MP) to introduce new legislation enables substantial discussions regarding the importance and potential advantages of the proposed laws.

This practise also serves to implement constitutional principles such as multi-party democracy, responsiveness, accountability, and transparency. The interpretation of Section 55 necessitates an examination within the framework of the previous apartheid regime’s endeavors to stifle opposing perspectives and establish dominant authority over intellectual discourse and behavioral patterns.[18]

Erosion of Political Competition at the Subnational Level

In both federal and decentralized states, the subnational government serves as a strategic platform for opposition parties to establish themselves as viable alternatives, engage in more efficient national campaigning, and benefit from the reputation of the incumbent administration.[19] The regional government serves as a platform for opposition parties aiming to overthrow the current ruling party. In the case of India, for instance, the growing achievements of regional parties played a crucial role in ending the dominance of the Congress party in the national elections of 1977.[20]

Dominant political parties possess an inherent understanding that regional rivalry might have detrimental effects on their chances of success in national elections. Consequently, they take measures to mitigate the potential threat provided by regional parties.

Ruling parties can impede regional political competition through the implementation of two distinct strategies: the placement of loyalists in influential roles within regional governments, known as the “agent control” method, or the reduction of authority and influence of local political players, referred to as the “administrative centralization” strategy.[21] Additional tactics of control encompass imposing unattainable performance benchmarks upon regional political agents and fostering inter-jurisdictional competition among subnational governing bodies.

The dynamic between the centre and peripheral represents a distinct setting in which constitutions have the potential to enable partisan misuse, rather than serving as a constraint. The authority vested in the President by Article 356 of the Indian Constitution allows for the dissolution of state governments in cases of inadequate performance, instability, or misuse of power. The authority referred to as “President’s Rule” becomes operative when the President is notified by a state governor that the state’s “constitutional machinery” has experienced a breakdown.[22] The act of dismissal grants the central governing body significant power to enforce its decisions upon the sub-national government.

The appointment of state governors by the central government, along with the customary practise of the President relying solely on Cabinet advice, provided the government in New Delhi with a powerful tool to counteract the opposition’s growing influence in the states.[23] Since achieving independence, governments in India have utilised Article 356 on about 100 occasions, primarily with the intention of removing opposition coalitions from positions of power at the state level.

The significant rise in the use of President’s Rule by the central government following the 1967 elections, during which the Congress party experienced a loss of power in eight states, was not a mere happenstance. The impact on political rivalry was profound: in 75% of cases, the implementation of President’s Rule led to improved electoral results for the national party in future state elections.[24] The Supreme Court, in the case of S.R. Bommai v. Union of India, established stringent constraints on the authority of the President to issue proclamations under Article 356.[25]

Incumbency Advantages

The phenomenon of dominant-party dominance can be attributed to the inherent advantages that incumbency provides, hence sustaining the ruling party’s position of power. One of the primary advantages lies in the ruling party’s capacity to use public resources for partisan purposes. The misallocation of governmental resources in the form of obvious misappropriation is a rare occurrence. Similarly, in the case of Mexico under the Institutional Revolutionary Party, dominant political parties allocate funding to partisan endeavors by utilizing state-owned firms that are manned by party loyalists and function without external scrutiny.

In the context of Taiwan, the Kuomintang (KMT) effectively utilized its strong influence over the bureaucratic system to divert public funds into party resources. Additionally, the KMT extensively employed state-owned and party-owned capital for various purposes such as development initiatives, patronage activities, and supporting both the regime and electoral campaigns.[26]

Patronage serves as an additional technique for exerting political power. In exchange for political support, dominant parties allocate licenses, loans, contracts, public-sector positions, and other incentives to potential competitors. Incumbents possess the ability to attract candidates who are deemed the most electable, as these candidates recognize that aligning themselves with the political party offers the most reliable and frequently exclusive path to attaining political power. Consequently, opposition parties find themselves relegated to the outside of the political spectrum, impeding their ability to secure substantial electoral support.[27]

Alignment Between a Ruling Party’s Parliamentary and Organizational Wings

The interplay between a political party’s parliamentary and extra-parliamentary factions within parliamentary systems can often give rise to tensions and conflicts. The presence of “potentially conflicting obligations or requests that members of parliament encounter from their constituents and party organization” may lead to the delegation of public authority from democratically responsible legislators to unelected party officials.

Within the South African setting, the African National Congress (ANC) exercises control over its parliamentary wing by employing the strategy of potential expulsion from the party as a means to discipline and regulate the behavior of non-compliant Members of Parliament (MPs).[28] The aforementioned threat can exert a notably humbling influence due to the provision in the Constitution stipulating that legislators retain their positions solely as long as they maintain their affiliation with the nominating party. Consequently, lawmakers experience a sense of obligation to respond to the directives of their political party leadership, rather than prioritizing the interests and concerns of their voters.

Manipulation of Electoral Processes

According to research on electoral architecture, a nation’s electoral system has a big impact on how competitive its politics are. There are two main types of electoral systems.[29] Under constituency-based systems, there are several electoral districts around the nation, and each district sends one representative to the legislature. Constituency-based systems typically result in two powerful parties with sufficient support to unseat one another in regular elections.

Parties are allotted legislative seats in direct proportion to their total vote share under proportional representation (PR) systems. Thus, smaller parties can gain seats by adding up their votes across the country. However, competition is sacrificed for the sake of inclusivity. The more parties there are, the less likely it is for any one of them to create a majority, because the formation of durable coalitions is hampered by ideological differences. The popularity of PR systems has been observed in democracies in transition.

The conventional opinion holds that PR systems, by reducing entry hurdles for smaller parties and historically underrepresented groups, help to develop an atmosphere of political inclusivity that is much needed. However, because the ruling party can essentially eliminate political competition by increasing the number of votes required to win a legislative seat, these systems are susceptible to partisan misuse. Studies indicate a significant decline in competition when the threshold is surpassed by 5%. For example, in the Turkish election of 2002, 46% of all votes cast went to waste because so few parties were able to get over the absurdly high 10% threshold.[30]

Another school of thought thinks that low thresholds might hinder political competition by discouraging opposition groups from banding together to create a strong rivalry with the ruling party. Constituency-based systems provide room for partisan misuse notwithstanding all of PR’s drawbacks. Redrawing electoral borders and funding pork-barrel projects in marginal seats are two strategies that dominant parties may try to utilize to weaken the anti-government vote, given that the establishment of government necessitates a majority of votes in a majority of electoral districts. With only 61% of the national vote, the People’s Action Party won 95% of the seats in Singapore’s 1991 elections, a country that uses a constituency-based system of government.[31]

iii. Need for Basic Structure Doctrine for preventing Democratic Subversion

The basic structural theory is a contentious issue in India. Critics of the theory view it as an unprincipled delusion that allows courts to thwart democratic decisions that conflict with their own judicial policies. An additional angle of attack is that judges self-indulgently applied the doctrine, at least in the early going, to preserve private property rights at the expense of much-needed economic redistribution. More accepting observers argue that while the theory helped guide India through a difficult era of transition in the past, it is now out of date and unfit for a nation that has shown its democratic credentials after a few false starts.

The doctrine’s supporters primarily rely on its history of curbing excessive majoritarian behavior. Given the history of the theory, the main emphasis of this discussion is on how it limits the ability to modify the constitution. However, there is a subtle shift occurring in the way jurists and academics conceptualize the theory. One of the first studies to make the case that the basic structure theory is now a “full-fledged doctrine of constitutional judicial review” that can invalidate executive orders and regular legislation in addition to constitutional amendments was Sudhir Krishnaswamy’s 2009 book.[32]

Occasionally, other authors have noted—without necessarily agreeing—the peculiar inclination of Indian courts to cite the doctrine when it is not related to constitutional amendment. This section expands on those observations and takes a step further by examining how a basic-structure approach may be applied to various constitutional arrangements and can they even further extends to the ordinary legislations.

The emergence of doctrine of basic structure

The inception and formative years of self-rule are where the Indian basic structure philosophy originated. The Indian National Congress, as is now widely known, led the independence struggle that resulted in the 26 January 1950 ratification of the Constitution. In both the Constituent Assembly and the newly constituted Provisional Parliament, the Congress controlled 69% of the seats. Under the direction of first Prime Minister Jawaharlal Nehru, the Congress was able to maintain its legislative supermajority at the first general election by securing widespread support for its programmes of economic redistribution and social advancement. The party could easily secure the two-thirds majority in the Lok Sabha, the Lower House, needed to change the Constitution, right from the start. [33]

The elimination of the Zamindari system was at the top of Congress’s list of reforms. By giving zamindars, or pre-colonial feudal lords, huge areas of land and the authority to levy taxes on the peasants living on it, the British fostered their support during the colonial era. Article 31, which provides a limited guarantee of equitable compensation for seizure of private property, served as an early barrier to the transfer of zamindar land. Article 31, a clause included at the neoliberal periphery of the party’s insistence, had long been opposed by Congress.[34]

The Congress’s initial attempts to redistribute land with little or no compensation to the owners were thwarted by India’s high courts, revealing the actual extent of the party’s devotion to property rights. The party used its supermajority in parliament in 1951 to amend the Constitution by adding Articles 31A and 31B. Article 31A protected expropriation legislation from court scrutiny if they upheld certain “Fundamental Rights” enumerated in the Constitution, such as the freedom to practise one’s profession, the right to property, and equality before the law. The Constitution’s Ninth Schedule was added by Article 3IB, which also said that measures included in the schedule could not be deemed unconstitutional.[35]

The judiciary believed that the government had gone too far. Although the reforms’ stated goal was to do away with the zamindari system, any statute may theoretically be exempted from court review by using the Ninth Schedule. The “Directive Principles of State Policy” are a set of nonjusticiable socio-economic rights that represent India’s ongoing commitment to the social revolution. Congress defended the measures as an inevitable incident of its constitutional responsibility to govern in accordance with these principles. Congress, an openly socialist party, saw the Directive Principles as superior to the Fundamental Rights.[36]

The Justices’ early rejection of such normative hierarchy by the Supreme Court created the conditions for a clash between Congress and the branches of government. The landmark decision in I.C. Golak Nath v. State of Punjab,[37] rendered by an 11-member court in 1967, signaled the end of the Golak Nath family’s prolongated struggle to inherit land that their father’s will leave them. The majority of the land had been expropriated by the state government in accordance with the Punjab Security of Land Tenures Act of 1953. This case contested the validity of Articles 31A and 3IB as well as the Seventeenth Amendment, which inserted the Punjab Act into the Ninth Schedule.

They submitted to the Supreme Court that “the fundamental rights are a part of the basic structure of the Constitution and, therefore, the amending power can be exercised only to preserve rather than destroy the essence of those rights”. Despite being receptive to the basic structure argument, the majority of the six made a different decision. According to Chief Justice Koka Subba Rao, Article 368, which permits constitutional revisions, only specifies the “procedure” for doing so. He reasoned that a constitutional amendment could not deviate from Fundamental Rights since it was still a “law” for constitutional purposes.

Golak Nath supported the idea that Parliament could not trample on fundamental rights in the process of amending laws. However, the weakening of the right to property was not the threat to democracy at issue in that case. The court acknowledged that this may be justified as a justifiable redistributive policy in an unequal nation. The fact that one party had gained control over the process of amending the constitution was the true reason for concern. The Ninth Schedule, which presented the possibility that any statute might be excluded from judicial review at Congress’s whim, was especially worrisome.

The threat was not lost on the judges, who alluded to Congress’s domination in various contexts. Chief Justice Rao described Congress, lacking Nehru’s statesmanship, as a “brute majority” that would violate rights in its quest for a socialist utopia. 77% to contextualize such anxieties, consider that the 1962 Sino-Indian War, which lasted only a few years, resulted in the suspension of rights to equality before the law, free speech, and liberty during the years of emergency rule. However, the objections raised by the justices reveal the issue with Golak Nath and its forerunners.

In the end, the judges’ retreat into the comfortable territory of rights rendered them oblivious to the ways in which the reality of one-party dominance might influence constitutional law in domains that are not amenable to rights analysis.

In fact, rights adjudication has been criticized recently by constitutional academics for being an ineffective tool for addressing the pathologies that develop in democracies with a dominant party. Arguments based on rights highlight the symptom of power abuse rather than its root, which is a lack of political competition. In the absence of a significant chance of losing their position, incumbents are more prone to self-deal and produce arbitrary policy outcomes. Some scholars, like Samuel Issacharoff and Richard Pildes, have even gone so far as to say that democratic governments always carry the risk of being seized by the dominant party.[38]

According to them, democratic politics operates similarly to a market. It functions best when there is fierce competition among participants, which encourages them to cater to customer preferences. When governing parties abuse their power to suppress opposition and distort the democratic process to suit them, the system breaks down. Courts concerned about the rise of authoritarianism would be better served by concentrating their efforts on structural obstacles to political contestation, as these are the root cause of the issue, as opposed to rights violations, which are a symptom of the autocratic trend.[39]

The petitioners’ attorney in Golak Nath did draw the court’s attention to the wider effects of one-party rule on the viability of democracy. The German legal scholar Dieter Conrad claimed in a 1965 lecture at Banaras Hindu University that the eternity clause in the German Basic Law only made explicit what was implicit in all constitutions, namely the indestructibility of their essential elements.[40] Constitutional lawyer M.K. Nambiar cited this lecture. A two-thirds majority could amend Article 1 “by dividing India into two States of Tamil Nadu and Hindustan proper,” Conrad asked the audience to consider.

It could also abolish the right to life in Article 21. If the ruling party saw its majority dwindling, it could amend Article 368 to state that the president acts on the prime minister’s advice. Finally, it could be used to abolish the Constitution and reintroduce the rule of a moghul emperor or of the Crown of England. Chief Justice Subba Rao, who recognised in Golak Nalh, obiter, the “considerable force” in the petitioners’ contention that if the foundations would be susceptible to the ordinary procedure of amendment with a special majority, seemed to be moved by Conrad’s way of thinking.

It is possible to dissolve the President’s institutions, eliminate the legislative branch, revoke fundamental rights, destroy the idea of federalism, and, in other words, transform the free and democratic public into an authoritarian one.[41]

Conrad’s hypothetical highlights the various ways that a party can misuse its dominant position to erode democratic protections, in contrast to Golak Nath’s rights-based approach. Conrad’s list does, in fact, include the diminution of rights, but it also includes the division of the state, a reduction in the bar for constitutional amendments, and the establishment of an autocratic government in compliance with constitutional process. The most abstract meaning of individual rights would be violated by each of these amendments.

These structural modifications to the political system would not harm any one individual or group of individuals, in contrast to legislation that directly restricts the exercise of rights. It would be more accurate to characterize the damages caused by Conrad’s display of horror as “expressive,” since they send a disturbing message about the regime’s disdain for fundamental constitutional principles.[42]

The Supreme Court’s future rulings cannot be regarded as reflecting an inchoate awareness of the manifestations of extreme majoritarianism, even if Golak Nath did represent such an understanding. At the time of Golak Nath, Indira Gandhi, the daughter of Nehru, had just taken over as prime minister and had recently guided her party into the 1967 election, which resulted in significant defeats for the Congress Party all over the nation.[43] The party managed to hold onto power, but it lost its two-thirds parliamentary majority. Gandhi, facing extreme political difficulties, cited Golak Nath as proof of the Court’s disregard for the social revolution.

Her plan paid off, as Congress was able to reclaim its supermajority in the 1971 elections and was also given the mandate to stop the Court from extinguishing the socialist flame. Congress acted swiftly to change the constitution in order to reinstate the unrestricted constituent power of Parliament. One of the amendment was Article 31C, which protected any statute that advanced the directive principles requiring that state policy provide an equitable distribution of property from judicial examination on the grounds of conflict with certain fundamental rights. Furthermore, Article 3IC stipulated that no court may overturn a declaration made by Parliament that a law advanced certain Directive Principles.

In Kesavananda Bharati v. State of Kerala, the 1973 ruling that established the basic structure concept, the changes were contested.[44] The head of a Keralan monastery burdened by rules listed in the Ninth Schedule filed the petition, which was considered over the course of five months by a panel of thirteen judges, five of whom the government had chosen following Golak Nath with the hope that they would vote to overturn that ruling. The Court was forced to make an unjust decision: either uphold Golak Nath and suffer the fallout from appearing to prioritise property rights over social progress or give up judicial review authority and deprive itself of a crucial instrument for policing misuse.

In the end, the Court drew a line in the sand between principle and populism. If one were to only consider the result, Kesavananda would be a huge victory for the government. The Court overturned Golak Nath and maintained that Parliament could restrict Fundamental Rights since it had the authority to modify the Constitution.[45] The devil, however, was in the details. The majority declared Article 31C illegal inasmuch as it attempted to eliminate judicial review, which was a component of the unchangeable basic structure of the Constitution, even if the majority upheld the rest of the amendments.

The 13 judges together presented 11 opinions, so it was challenging to determine a precise ratio. It has become common knowledge that the seven majority justices and two dissentients signed a “statement” accurately summarizing the Court’s rulings. In oversimplifying terms, the majority concluded that the ability to “amend” under Article 368 does not include the ability to completely destroy or change the Constitution. Some judges took a “structural interpretation” in addition to this simple textualist position. They contended that the Constitution’s Preamble and affirmation of fundamental rights, in addition to Article 368, represented a foundational structure of governance that was intended to last.

Though most of them appended a disclaimer that their list was not all-inclusive, the majority judges had various viewpoints about the components that made up the fundamental framework. Judicial review, the supremacy of the Constitution, parliamentary democracy, federalism, secularism, separation of powers, the mandate to establish a welfare state, the unity and integrity of the country, and individual freedom and dignity were among the fundamental elements recognized in the majority judgements.

The difference between Golak Nath and this case was stark: the Court had given permanent status to the political structures that are essential to democracy, moving beyond a sole emphasis on individual rights. The Court refrained from making any decisions regarding the amenability of particular political structures and constitutional rights, with the exception of the judicial review provision. One may argue, with cynicism, that the Court promoted a conception of constitutional change that was only as democratically protective as the ruling class would allow.

In fact, the majority of the in question constitutional amendments were upheld by the governing opinion, including the first section of Article 31C, which redirected the Fundamental Rights review process to include legislation that advanced the Directive Principles. Therefore, Parliament was still free to violate fundamental rights in order to achieve the Directive Principles, with the Court’s limited jurisdiction governing whether or not the relevant law actually advanced those goals.

Kesavananda was definitely the best choice in light of everything. The Court’s method puts its notion of democratic protection back in balance. In an ironic turn of events, Golak Nath’s approach to the issue of partisan constitutional amendment was excessively lenient as well as excessively restrictive. Pildes clarifies that a purely rights-based approach to democratic politics “may lead courts to intervene too aggressively and use rights analysis to invalidate structures that in fact provide fairer and more representative institutions,” in addition to ignoring the need for institutions that support political competition.[46]

In Golak Nath, for example, the Court upheld property rights, which mostly benefited the wealthy, at the expense of laws intended to distribute money more fairly among the populace. The more sophisticated reaction to Congress’s hegemony was Kesavananda Bharti case. Notwithstanding its flaws, the Court’s decision limited the possibility of misuse of the constituent authority and permitted subsequent administrations to carry on the social revolution.[47]

Growth of Basic Structure Doctrine 1975-2023

The consequences of Kesavananda were felt right away. One of the dissentients, A.N. Ray, was appointed Chief Justice of India by an enraged Indira Gandhi the day after the ruling.[48] As a result, she dethroned Ray and three other Kesavananda majority justices in the traditional method of determining the Chief Justiceship: seniority order. Then-prime minister claimed that the success of the social revolution depended on an “accommodating” Supreme Court.[49] Granville Austin notes that the supersession had a more deliberate cause: Recently, Raj Narain, who had challenged Indira Gandhi in the 1971 elections, filed an electoral appeal alleging corruption had stained the Prime Minister’s victory. The consolidation of the basic structural philosophy would be sparked by the petition.

Gandhi’s election was ruled invalid by the Allahabad High Court on June 12, 1975, due to her involvement in unethical electoral practices. Gandhi was put under intense pressure to step down by her political opponents, but she refused to back down. In accordance with Article 352 of the Constitution, the Prime Minister declared an “internal emergency” on June 25. She used this proclamation as a justification to order the detention of thousands of political dissidents, halt the ability to petition the courts to enforce the Fundamental Rights, and restrict journalistic freedom.[50]

Furthermore, two constitutional modifications intended to strengthen the Prime Minister’s hold on power were pushed through by Congress. President’s Rule proclamations, presidential ordinances, and emergency proclamations were exempt from judicial review by the Constitution (Thirty-eighth Amendment) Act. The Prime Minister’s violations of electoral regulations were retroactively removed by the Constitution (Thirty-ninth Amendment) Act, which also prevented the courts from examining the legitimacy of the Prime Minister’s election.

The Prime Minister wanted the Supreme Court to overturn Kesavananda just to be safe. The Attorney General contended in Indira Gandhi v. Raj Narain (The Election Case) that the ruling of the Allahabad High Court was null and void because to the Thirty-ninth Amendment, which eliminated the legal foundation for the court’s verdict against the Prime Minister.[51] In response, Narain’s attorney stated that the Thirty-ninth Amendment was invalid in and of itself due to structural inconsistencies.

Thus, the Court was directly faced with the question of Kesavananda’s correctness. Gandhi’s election was unanimously affirmed by the Court on the grounds that retroactive laws were not inherently illegal. By a vote of four to one, the Court, however, rejected the Thirty-ninth Amendment’s alleged removal of judicial review over the Prime Minister’s election, citing the basic structural concept. Every justice in Kesavananda, with the exception of Justice Khanna, had rejected the basic structure doctrine. Seeking a legal solution to curb the worst of Gandhi’s excesses, all three of them would eventually adopt a theory they had vehemently rejected just two years prior, albeit to differing degrees.[52]

The Thirty-ninth Amendment’s abolition of judicial review, according to Chief Justice Ray and Justices Chandrachud, Mathew, and Khanna, violated the fundamental structure, which includes the rule of law, the judicial settlement of electoral disputes, and the idea of free and fair elections, as per the various rulings.

Commentators have not given much attention to the fact that the Election Case also entailed a challenge to the fundamental structures of the Election Law (Amendment) Act of 1975 and the Representation of the People (Amendment) Act of 1974. These measures strengthened Gandhi’s position as prime minister, as did the contested constitutional modifications. Reasonably, Narain’s attorney pointed out that it would be “paradoxical” to subject the constituent power to restrictions that did not extend to the more limited lawmaking power. This request to apply the theory to regular legislation was turned down by three Justices.

The idea “that ordinary legislative measures are subject like Constitutional Amendments to the restrictions of not damaging or destroying the basic structure or basic features” was rejected by Chief Justice Ray as “utterly unsound”. Therefore, to uphold would be “to equate legislative measures with Constitution amendment” and therefore “rob the legislature of acting within the framework of the Constitution”.

The notion of a basic structure as a brooding omnipresence in the sky apart from the specific provisions of the Constitution constituting it is too vague and indefinite to provide a yardstick to determine the validity of an ordinary law, according to Justice Mathew, who also rejected the basic-structure review of legislation. Justice Chandrachud also concurred that laws may only be overturned if they went beyond their authority or violated fundamental rights.[53]

Contrastingly, Justice Beg was the lone dissentient who believed that legislation should be reviewed based on its basic structure. With Justice Beg’s opinion, an analytical framework and normative rationale for requiring basic-structure reviews of all governmental actions, including regular legislation, started to take shape. Justice Beg stated that courts must apply the standards outlined in the Constitution to determine whether laws, regardless of their status as ordinary or constitutional, are lawful.

This is inferred from the Constitution’s supremacy. In response to one of the many earlier posed questions, I address this here: Does the “basic structure” of the Constitution evaluate ordinary laws as well as constitutional amendments? I believe it accomplishes both since regular lawmaking is limited by the authority of its constituents.[54]

In the following decision of State of Karnataka v. Union of India, Chief Justice Beg (as he was later named) continued this line of reasoning. In this case, Karnataka contested a statute that gave the centre the authority to initiate an investigation into claims of corruption in the states. Beg once more held that the Preamble to the Constitution, which outlined “the aspirations of the people of India” and “provided general guidance in judging the Constitutionality of all laws whether constitutional or ordinary,” contained the fundamental elements of the basic structure concept.

Chief Justice Beg did not read Kesavananda “to lay down some theory of a vague basic structure floating, like a cloud in the skies, above the surface of the Constitution and outside it” in response to his colleagues’ objections in the Election Case. Instead, according to him, the term “basic structure doctrine” is only a loose term for a method of interpretation by which the interpreter extends fundamental ideas from the Constitution that are equally applicable to legislative action, constitutional amendments, and presidential orders:

“If as a result of the doctrine, certain imperatives are inherent in or logically and necessarily flow from the Constitution’s “basic structure”, just as though they are its express mandates, they can be and have to be used to test the validity of ordinary laws just as other parts of the Constitution are so used.”

The basic structural theory can be interpreted as a construction canon in two different ways. According to one interpretation that matches Chief Justice Beg’s understanding, the basic structure theory is a canon of linguistic construction. Among other semantic and syntax-based presumptions, linguistic canons refer the interpreter back to the text and provide mundane instructions to construe terms in accordance with their plain meaning, considering other provisions in the text, and on the assumption that items not expressly included are excluded.

When Chief Justice Beg talked about “logical imperatives” that follow from the Preamble and operative provisions of the Constitution, this was presumably what he had in mind. This legal interpretation also clarifies Chief Justice Beg’s apparent rejection of using political or moral philosophy to highlight the essential elements.

However, the basic structural theory might be interpreted differently as a substantive canon of construction, and in my opinion, it should be. Substantive canons, as opposed to linguistic canons, instruct the interpreter to uphold preset standards and decisions about policy. When phrased this way, the idea conjures up heretical notions of judges passing laws from their benches. However, courts often employ these dice-loading guidelines in the common-law realm, which is the cradle of judge-made legislation.

The policy-based assumption that the legislature does not intend to violate public international law by enacting laws is applied in many common-law systems, and the: rule of lenity” mandates that ambiguities in a criminal code be interpreted in the defendant’s favour. Similarly, the basic structure doctrine is a canon of substance rather than form; it directs courts to read their constitutions with a heavy hand favouring particular normative objectives, such as healthy political competition, the impartial exercise of public authority, and the preservation of independent political institutions.[55]

When the Canadian Supreme Court discussed a “basic constitutional architecture” in the well-known Quebec Secession Case, it was endorsing a similar method of constitutional arbitration. The Court used the indefinite article to suggest that it was speaking to constitutions generally when it stated that “the [rule of law] is clearly implicit in the very nature of a Constitution” in that case.[56]

The Court went on, “The same may be said of democracy, constitutionalism, and minority protection.” The components of this “basic constitutional architecture” exert pressure on the Court to reject interpretations that deviate from the ideal of the constitutional order and to make decisions that best represent it. In this manner, they are similar to substantive canons of construction. “The principles are not merely descriptive”, the Supreme Court stated, “but are also invested with a powerful normative force and are binding upon both courts and governments” .

The Court used caution while addressing the ramifications of its hypothesis. The hasty addition that a constitution’s antonyms “could not be taken as an invitation to dispense with the written text of the Constitution” followed suit. However, the Court also stated that it would build “the premises of a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text” using these principles in the proper situation.

Following the Election Case, the embattled Prime Minister dealt a last blow to the fundamental structure theory by enacting the Constitution (Forty-second Amendment) Act 1976, which aimed to eliminate any restrictions on the power of the constituents. Soon afterward, Gandhi held an election in an attempt to get a mandate to overthrow the Court. However, she misjudged the political response to her emergency protocols. The 27-year uninterrupted control of Congress came to an abrupt end. Later, the Supreme Court ruled in Minerva Mills v. Union of India that the basic structure doctrine was unchangeable by constitutional amendment since it constituted a component of the Constitution’s basic structure.[57]

The basic structure theory was primarily thought of up to this moment as a restriction on constitutional modification, and nothing more. In 1994, the next significant ruling on the basic structure doctrine would significantly broaden its scope. In Bommai, the Court examined the dismissals of state administrations in Madhya Pradesh, Rajasthan, Himachal Pradesh, Karnataka, Meghalaya, and Nagaland by the central government. Bommai brought together two of the most delicate topics in Indian politics and constitutional law: the conflict between secularism and religion in Indian public life and the function of state governments in relation to the centre.[58]

In Indian politics, the practise of national governments dismissing their state counterparts has long been a source of contention. The Bommai dismissals were particularly contentious because the Congress party, which claims to be secular, had recommended that Hindu nationalist governments be overthrown in a number of states. Congress was forced to take action in December 1992 after nationalists who supported the Bharatiya Janata Party (BJP) administration in Uttar Pradesh ignited riots across the country by demolishing the Babri Masjid mosque in Ayodhya.[59]

Long a source of contention between different ethnic and religious groups, the mosque was said to have stood on ground that had previously been home to Hindu temples. The incident led to the Chief Minister of Uttar Pradesh resigning, but Congress went on to topple the BJP governments in Madhya Pradesh, Rajasthan, and Himachal Pradesh. These administrations were ousted after three other governments in Nagaland, Meghalaya, and Karnataka were dismissed. In a single combined case, the Supreme Court addressed the objections raised by the overthrown governments.

Prior to Bommai, the Court had determined that the President’s discretion granted under Article 356 was primarily of a political nature and could only be subject to a common-law standard of scrutiny that is nearly impossible to win: a demonstration of ill faith. That interpretation was backed by the language of the provision, which was expressed as a matter of personal choice. However, the Court was unable to refute the notion that “Article 356 had a potentiality to unsettle and subvert the entire constitutional scheme” by the time of Bommai.

The majority of justices came to the conclusion that the basic structural concept applied even in situations when constitutional amendments were not involved. According to them, the fundamental elements of the Constitution—which are now broadened to encompass secularism, social plurality, and federalism—defined and constrained the authority of the President to make decisions under Article 356. According to this reasoning, the President is required to remove a state government that is operating outside the fundamental framework of the Constitution, which includes the secularism concept.

The BJP governments in Madhya Pradesh, Rajasthan, and Himachal Pradesh had thus publicly declared their intention “to subvert or sabotage secularism as enshrined in our Constitution” and had done so by word and deed. As a result, the President’s dismissal of these governments was upheld. On the other hand, a dismissal would not be lawful if it violated any part of the fundamental framework, such as by violating the federalism concept. In this regard, a judge pointed out “the temptation of the political party or parties in power … to destabilize or sack the Government in the State not run by the same political party or parties”.

Proclamations made pursuant to Article 356 would henceforth be “closely and circumspectly” examined for indications of a motivation at odds with the principles outlined in the basic structural doctrine. By using this stringent criterion, the majority concluded that there was not enough information to draw the conclusion that the President’s removal of the governments of Karnataka, Meghalaya, and Nagaland was consistent with the fundamental framework.

Essentially, the Bommai Court rejected a textualist interpretation of Article 356 in favor of a reading that protected subnational governments against excessive intervention by the centre but left them vulnerable to removal for their own partisan misdeeds. The basic structural theory, which is currently considered to include federalism and secularism, provides the normative resources that the Court looked for in order to discern between valid and illegitimate uses of Article 356, according to the Court. The theory served as a sort of normative lodestar, directing the Court to interpret Article 356 in a way that encouraged state-level democratic contestation and limited political misuse of President’s Rule.

A few of Bommai’s keen readers expressed concerns about the basic structure doctrine’s application in a situation unrelated to constitutional amendment. Sathe concedes that the Court’s use of the basic structure theory was not necessary to support its ruling but praising the Court for “giving a warning to the Hindu Right.”[60] It might be inferred that the Court applied the concept selectively, using it as a legal pretext to meddle in highly political affairs. However, few observers who are aware of India’s history of interethnic and interreligious strife would contest that the Court’s decision has restrained central government abuses of power and solidified pluralist democracy in an unwelcoming setting.

“One may criticize the Court for acting politically in Bommai”, says Sathe, “but one cannot deny that the Court’s politics has helped the politics of governance become more principled and democratic.” The Court also sent a strong message to the forces of religious extremism by endorsing the age-old Indian practice of sarva dharma sambhava, or equal tolerance for religious traditions. Constitutional arbiters may fare even worse than the Indian Supreme Court in Bommai if they are forced to use politics to influence their rulings.

In later rulings, the enlarged version of the basic structure review emerged. A five-member panel used the fundamental structure theory to strike down a section of the Ayodhya (Acquisition of Certain Areas) Act 1993 in Ismail Faruqui v. Union of India, a 1994 follow-up to Bommai. The clause gave no other avenue of compensation for Muslims who felt wronged and ended all ongoing lawsuits and legal actions related to the demolition of the Babri Masjid.[61]

The majority concluded that by depriving claimants in the ongoing lawsuits a judicial remedy, the contested clause “negated” the rule of law, one of the fundamental components of the system. The minority also claimed that the abatement clause was against the fundamental framework, but they did so on the grounds that it was “slanted in favour of one religious community as against another,” which violated the secularism principle. In G.C. Kanungo v. State of Orissa, in the following year, the Court used basic-structure review to strike down a state act that voids arbitral verdicts.[62]

The gradual spread of the basic structure philosophy has been uneventful. A five-judge court rejected the basic structure doctrine as a source of implied limitations on ordinary law in the 2006 ruling in Kuldip Nayar v. Union of India.[63] In Nayar, the petitioner contested two Representation of People Act 1951 modifications. A particular amendment eliminated the need for Rajya Sabha (Upper House) members to reside in a state. In the other, the President was chosen by that chamber’s members by an open ballot.

This amendment sought to outlaw “cross voting,” which is the practise of lawmakers accepting bribes to support a specific presidential candidate. The petitioner contended that the open-ballot requirement would limit parliamentarians’ ability to cast votes and that the legislation violated the basic structural principle of federalism by making the Rajya Sabha less representative of the states in the absence of a residency requirement. Speaking for the majority, Chief Justice Sabharwal maintained the revisions and stated that “ordinary legislation does not fall under the doctrine of ‘Basic Feature’ [sic] in the context of our Constitution.”

However, to assume that Nayar is the last word on whether the basic structure concept applies outside of the unique circumstances of constitutional revision would be a mistake. A two-person panel examined a challenge to India’s Fast Track Courts in 2012; these courts were set up to handle cases that had been lingering for a long time in inferior courts. The panel briefly stated that “any policy or decision of the government which would undermine or destroy the independence of the judiciary would not only be opposed to public policy but would also impinge upon the basic structure of the Constitution”.

Furthermore, the Court stated that “if a sufficient number of Judges are not appointed, justice would not be available to the people, thereby undermining the basic structure”—implying that concerns about the fundamental structure may also be raised by government inaction. It appears that some members of the Court still hold the belief that the basic structure doctrine is a substantive canon of construction that dates back to Bommai and its offspring. It remains to be seen if the Court will accept or reject the enlargement of the theory in a subsequent case.

Legal SYNK