In Chapter 5 of Democracy and Constitutionalism, Sudhir Krishnaswamy explores the legitimacy of the Basic Structure Doctrine, following Richard Fallon’s framework of legal, sociological, and moral legitimacy. Before addressing these divisions, Krishnaswamy clarifies the concept of legitimacy, defined as the justification of authority based on specific criteria. Drawing from constitutional theory, he references Joseph Raz’s views on the authority and interpretation of constitutions. Krishnaswamy systematically analyzes and refutes arguments questioning the legitimacy of the Basic Structure Doctrine, providing strong justifications for its validity in all three dimensions. This review follows his argumentation order, exploring legal, sociological, and moral legitimacy.
Keywords: Basic Structure Doctrine, legitimacy, constitutional authority, legal interpretation.
The legitimacy of basic structure doctrine is being analysed by Sudhir Krishnaswamy in his book ‘Democracy and Constitutionalism’. This article is a chapter review of the detailed analysis presented by Krishnaswamy. Chapter 5 of the said book is titled “Legitimacy of the Basic Structure Doctrine”. He has analysed the legitimacy of basic structure doctrine on a three-part division into legal, sociological and moral following Richard Fallon’s criteria to organize the questions of legitimacy. In his chapter, he has provided a detailed analysis by answering all the questions regarding the illegitimacy of basic structure doctrine in negative.
Before discussing legitimacy, he delved into the meaning of legitimacy. By legitimacy it is generally understood to be an assessment of whether an authority or a particular action is justifiable by reference to a set of criteria. The criteria by which legitimacy is assessed will vary greatly depending on the type of authority. According to Joseph Raz, Constitutional theory comprises two major parts, an account of the authority of the constitutions and an account of the way constitution should be interpreted. Now, that we all have the basic understanding of the concept of legitimacy. We will move into the merits of the chapter: The argument furthering the legitimacy of basic structure doctrine.
He provided a thorough investigation of legal, moral and sociological legitimacy by answering all the critical questions related to illegitimacy. He provided a sound and justifiable reason for each argument favouring legitimacy. In this review, we will analyse in the same order as Krishnaswamy presented his arguments in the chapter. We will first see the legal legitimacy, then will will move into other two legitimacy.
Legal Legitimacy
To assess the legal legitimacy of the basic structure doctrine, Krishnaswamy adopted the test to check whether basic structure complies with the legal norms applicable to the case. There are two kinds of legal norms. First, written in the constitution and second, developed by the court interpreting constitutional texts. There were three major challenges to the legal legitimacy of the basic structure doctrine. These can be listed as follows:
Krishnaswamy answered each of these questions in details in different headings. We will also deal in the similar manner and structure in our review.
On the first challenge, there is no express provision under the constitution suggesting the phrase ‘basic structure’. Krishnaswamy answers the argument assumes that the text of constitution is perfect to carve out any interpretive problems which come before court. Also, this argument neglects the role of constitutional doctrines. The doctrine of separation of power and the doctrine of pith and substance is not found in any of the provisions of the constitution expressly but they play an important role in interpreting the constitution.
Highlighting role of precedent and development of jurisprudence since the establishment of Supreme Court. He stated these propositions as ‘Constitutional common law’. Basic structure doctrine cannot be stated illegitimate because it has no express mention in constitutional text. In Keshavnanda, the court interpreted the wider meaning taking constitution as a whole to carve out basic structure doctrine. This approach is stated as ‘structural approach’ and this approach explains the legal legitimacy of basic structure doctrine.
The next challenge was on the implied implications made by court to limit the amending power through basic structure doctrine. Krishnaswamy answers this challenge by highlighting example of Article 21 which provides that ‘No person shall be deprive of his life or personal liberty except according to procedure established by law.’ This provision directly imposes restrictions on the executive branch of government to act within the boundaries of the enacted law. Still, it is unclear on the restraints on the legislative branch of government.
As fundamental rights entrenched in Part III of the constitution generally bind all three branches of government, the proposition that Article 21 binds the legislature is a reasonable one. By use of this example, he highlights the importance of both implied and express meaning provided by constitution. Each meaning should be given equal weightage and one should not be give preference merely because it is expressed. In constitutional interpretation the ‘important question is always what the constitution means; whether the ideas are communicated directly or indirectly is incidental.
Nevertheless, the courts have historically been suspicious of implied limitations, therefore, they have attempted to develop doctrines to fence in the range of implications which may be legitimately considered. The basic structure reviews cases also see three distinct doctrinal formulations. We will discuss each one of them and will identify the legitimacy of reading implied limitations.
The doctrine of implied limitation was put forth by Nani Palkhiwala in Keshavnanda. The doctrine draws on the administrative law rule relating to jurisdiction which draws on the administrative law rule relating to jurisdiction which posits that every grant of power is limited both explicitly and implicitly by the nature of the grant. In simple words, the statue must maintain balance between its parts by applying both explicit and inherent limitations necessary to promote the scheme and design of the instrument. Krishnaswamy analysed Rajeev Dhavan’s statement and stated that implied limitation plays no role in the judicial discourse on the basic structure doctrine. Then, he moved to the doctrine of necessary implications.
Krishnaswamy stated that the doctrine of necessary implications has not been used by the Indian court in basic structure doctrine. Then, he went on to refer HM Seervai statement of application of this doctrine. In the case of R v. Burrah on the principles of interpretation of Constitution. The court held: “If what has been done is legislation within the general words which give power, and if it violates no express condition or restriction by which that power is limited… it is not for a court of justice to inquire further or to enlarge constructively these conditions and limitations.”
Seervai suggested two caveats. First, the word ‘express’ ‘does not exclude what is necessarily implied’. Second, he proposes that ‘the nature of a constitution may be important on a question of construction’. Seervai also given an example of the phrase, the constitution shall stand amended. To stand amended the Constitution must exist. Krishnaswamy argues that the Seervai argument does not make sense as it assumes its conclusion and moreover fails to provide sound justification.
He then went on to explain that even if the constitution is repealed in entirety, then still there will be some constitutional arrangements and that will fulfill the phrase the constitution shall stand amended. He then went on to discuss structural interpretation as a superior approach in the next section.
Krishnaswamy refers to Sathe work to suggest that the Indian court’s movement from a positivist to a structuralist mode of interpretation explains the emergence and development of the basic structure doctrine. Sathe states that a structural interpretation views the constitution in totality, accounting for its philosophy and spirit excepting some provisions where text-based interpretation is necessary such as Art. 368 and 356. Krishnaswamy then went on to analyse the implication applied to basic structure doctrine. He came up with multi-provisional implication which suggests that not one provision, but multiple provisions were referred in interpretation of basic structure doctrine.
Then he compares Indian and Canadian Supreme Court approaches in interpreting the constitutional provisions. He refers to Robin Elliot who stated that Canadian courts use structural approach. In contrast, Krishnaswamy noted that the Indian Supreme Court draws multi-provisional implications that are not confined to structures of government but extend to substantive values. Structural interpretation through multi-provisional implications offers us one possible institutional safeguard to the use of the context-purpose mode of constitutional interpretation.
The third argument was related to the amendment of the Constitution by the Supreme Court. Krishnaswamy stated that the Keshavananda court was creative or innovative in two senses. First, it answered the question regarding the scope of parliament in a novel fashion and second, by overruling the existing precedent on the point of contention. He then stated that the argument that the decision amended the constitution came from the formalist claim that it is the duty of judges merely to declare the law as it is. He then distinguished judicial law-making from legislative law-making.
He points out a clear distinction between both methods such as constitutional interpretation only occurs when parties bring a case before the court. The court does not choose when, or on what subject, it may initiate constitutional change. They must articulate sound reasons when they choose to deviate from the precedents. Also, if the court goes beyond the legal dispute before it and makes observations on larger constitutional issues, these observations are considered to be obiter dicta and do not operate as binding law in future cases. Finally, he reached a conclusion that the courts have adhered to the key elements of this distinction satisfactorily in Keshavnanada.
He concluded the legal legitimacy by satisfying the three challenges. Then, he moved to discuss moral legitimacy of basic structure doctrine.
Moral Legitimacy
Krishnaswamy went on to explain what he meant by moral legitimacy. He stated that a constitutional law doctrine is morally legitimate, it means it is respect-worthy and capable of moral justification. The moral legitimacy of doctrine in constitutional law tests primarily on considerations of political morality of the institutions it creates and sustains. He assesses the moral legitimacy of the basic structure doctrine by one of two ways in this section.
First, by sketching out a general account of criterion by which legitimacy is ideally measured and then demonstrating that these criteria are satisfied by the basic structure doctrine. Second, by identifying major arguments raised against moral legitimacy and then show that these arguments fail to identify, misunderstand, or misapply, the criteria by which moral legitimacy is assessed. He also points out that since ‘moral justification can come in degrees’, he can only assert the basic structure doctrine is more or less justified.
He only worked upon the part which required the most moral justification. The controversial aspect of basic structure review is the court’s regulation of the scope of Parliament’s constitution amending power. He then analysed the work of basic structure doctrine reviewing constitutional amendments and find two major challenges. First, it is entrenchment on certain constitutional principles permanently beyond the reach of the people and this is undemocratic. Secondly, even if limitations on amending power are defensible, there is no reason why a court exercising judicial review power should police those limits.
Krishnaswamy begins by pointing out that most constitutions modify the democratic principle of group decision-making insofar as they insulate important moral and political decisions against change by ordinary lawmaking by the government. In our constitution, constitutionalism and democracy are two important principles and it reconciles between two the two principles as a matter of constitutional design.
He then went on to discuss the two questions whether basic structure doctrine rejects the majoritarian premise or merely denies the exclusivity of amending power in changing the constitution. Second, whether basic structure is anti-democratic.
Our Constitution provides two levels of law-making—first, ordinary law-making and second, constitutional law-making. The Constitution provides different levels of majoritarian support as a threshold for valid constitutional change. Krishnaswamy points out that Art. 368 is not the exclusive provision for amendment of the constitution since other provisions authorize amendments. It was also held by the court in Kesavananda. He then begins assessing the moral legitimacy of the non-exclusivity of amending power in Article 368. He started the discussion with American Constitutional legal debates on this issue as there has been rigorous engagement with this issue in the American Constitution.
He referred to Walter Dellinger’s argument for limited judicial review of constitutional amendment under Article V to ensure compliance with the amendment process. Dellinger stated that the formal amendment process represents the domestication of the right to revolution. This view was challenged by Akhil Amar Reed by stating that there are other non-explicit ways to amend the constitution which is not set out in Article V of the Constitution.
Krishnaswamy argues that one may make a distinction between different modes of constitutional change by assessing the quality and scope of deliberation which precedes it. He then refers to Ackerman ‘dualist democracy’ model which understands the US constitution as putting in place a two-tiered practice of democratic law making: ordinary law making and higher law making. The higher law making is a four-part process where there is a superior quality of deliberation.
Krishnaswamy states that dual democracy model is neither a necessary nor complete account of how majoritarian democracy and constitutionalism may be reconciled in constitutional design. Firstly, he pointed out that Indian and Canadian Supreme Court insert themselves as the guardians of the deliberative quality of constitutional politics they may well b able to ensure the integrity of this process. Secondly, dualist democracy argument is limited to American Constitutional experience.
He then concluded that the court is not denying the democratic principle or power of the people to change the constitution, but merely denying the exclusivity of amendment under Article 368 as a mode of formal constitutional change.
Critics pointed out that Judicial review is undemocratic because it allows non-representative judges to decide on elected posts in legislative or executive body. The second type of criticism is related to decisions of the judiciary, critics state that Judicial review leads to worse decisions than an executive or legislative body. In India, the former type of criticism is most prevalent because if the second criticism is tested, it would favour basic structure doctrine legitimacy.
In this section, Krishnaswamy analyses the basic structure doctrine with the non-instrumentalist argument that is court overturns the decision of a legislature or executive for failure to comply with fundamental rights. He compares the arguments related to the general power of judicial review and basic structure doctrine and then goes on to discuss the applicability of general arguments of basic structure doctrine.
Firstly, He argues that the general argument assumes that democracy is equivalent to the right to participate in the process of decision-making. Secondly, he argues that by privileging the right to participation such a conception of democracy adopts majoritarian voting arrangements as the sole source of all political legitimacy.
He states that the general argument regarding unrepresentative character of judiciary mistakes at two levels. First, the voting system respect the principle of equal political participation without further scrutiny and secondly, it suggests that majoritarian decision-making is equivalent to democracy.
In democracies like India and the UK, there is first-past-the-post system which invariably creates legislature and executives which do no enjoy a mandate from a majority of voters. Further, he mentions that a democratic judiciary draws on legal professionals of all ranks of society, and where access to legal education, information, legal advice and expertise, and a legal career are all widely dispersed, rather than being the prerogative of a small or relatively small group of people.
Krishnaswamy points out that the presence of fundamental rights in the Constitution and giving power of judicial review to the court confers that the framers wanted representative institutions of the state not have power on certain issues. Democracy requires that all members of the community are treated with equal concern and respect. The strong judicial review under the Constitution embraces this commitment to equal treatment. Hence, he concludes the judicial review using basic structure doctrine is legitimate as it addresses the issues involved in higher law making in dualist model of democracy.
In this section, Krishnaswamy argues that the version of strong sovereignty rests on a misinterpretation of Constitution of India, 1950 and an inadequate understanding of the concept of sovereignty in constitutional democracies. He advances a concept of sovereignty which can explain the reality of a legal system with multiple unranked sources of legal power. He then defines sovereignty according to his understanding. The term is defined as ‘supreme authority in a territory’. In this section, he confines himself to the role of debates on sovereignty in constitutional law and theory.
The parliamentary sovereignty under the Constitution of India is inspired by Diceyan’s formulation of the English Constitutional doctrine of Parliamentary Sovereignty. There has been significant debate on the limits of Parliamentary sovereignty after the legal impact of the European Communities Act, 1972 and more recently the Human Rights Act, 1998. However, Krishnaswamy does not went to discuss that and shift his attention towards Indian Sovereignty.
The word sovereignty appears once in the Constitution in the preamble which proclaims India to be a ‘Sovereign Democratic Republic’. The critics of basic structure doctrine have argued that it substitutes Parliamentary sovereignty with Judicial Supremacy. Krishnaswamy shows that there is a misunderstanding of the doctrine and concept of sovereignty in the Indian Constitution. He cited cases in which the Supreme Court has decided on parliamentary sovereignty. These are re Delhi Laws Act 1912 in which h Justice Fazl Ali discusses the concept of parliamentary sovereignty as an idea fundamentally inconsistent with the notion which govern inflexible and rigid constitutions existing in countries which have adopted any scheme of representative government.
In another case of Re Special Reference, J. Gajendragadkar noted that in a democratic country governed by a written Constitution, it is the Constitution that is supreme and sovereign. This observation has been reaffirmed in subsequent cases such as in Kuldip Nayar v. UOI.
By use of these cases, Krishnaswamy wants to show that precedent does not support the concept of Parliamentary Sovereignty. After dealing with this, he moves to deal with concept of Judicial Supremacy, Popular sovereignty or Shared Sovereignty
Krishnaswamy, in this section, discusses the concept of Judicial Supremacy as many observers think that the Supreme Court has replaced Parliamentary Sovereignty with Judicial Supremacy. He also discusses alternatives of sovereignty forwarded by court and academic commentators.
Krishnaswamy argues that basic structure doctrine does not establish Judicial supremacy. Firstly, He stated that basic structure does not allow Judiciary to whimsically exercise power without limits. Further, the doctrine is applied only in most egregious cases. Secondly, since the inception of the doctrine only a few numbers of laws have been stuck down as unconstitutional using basic structure doctrine. So, it cannot be said that basic structure doctrine establishes judicial supremacy.
He also identifies the arguments related to Judicial supremacy in the aspects that the court has the last say in any decision. Here, Krishnaswamy shows an example of Indra Sawhney which was overturned by an amendment. The amendment was held constitutional by the Supreme Court. Krishnaswamy mentions that the basic structure doctrine deepens the Constitutional culture as it starts a dialogue between institutions of government about the basic features of the constitution.
Krishnaswamy argues that the claims of popular sovereignty rests partly on a historical and normative argument and partly on legal arguments in the courts. As Indian Independence Act, 1947 vested constituent assembly power to draft constitution under the sovereign interest of the people and not under the British legal authority which formally constituted it. Constituent Assembly was also not formed democratically and represented all sections of society.
According to Dietrich Conrad, sovereignty under our Constitution is given to people not the Parliament. However, popular sovereignty was never embraced by courts in the form of doctrine despite of such normative and historical arguments. It was for the first time in the case of Indira Gandhi v. Raj Narain, the court moved towards the concept of shared sovereignty as an explanation of the doctrine. J. Chandrachud explained the distinction between legal and political sovereignty to help understand basic structure doctrine. Political sovereignty is the ‘sovereignty of people’. Legal Sovereignty is entrusted by the people to ‘the three organs of the Sovereign Democratic Republic.
Even J. Beg also endorsed a view of sovereignty which is ‘divisible and not…absolute and unlimited.’ Baxi endorsed the same view by stating that the Constitution is the ultimate sovereign. After discussing all these concepts, he concluded that we might have a different view of sovereignty altogether than Parliamentary Sovereignty. He then forwarded to discuss the last form of legitimacy i.e., Sociological Legitimacy
Sociological Legitimacy
Sociological Legitimacy exists when the people at large, or a narrow segment of legal and political elites, regard the institutional arrangements of the state or some particular decisions made by it as ‘justified, appropriate, or otherwise deserving of support for reasons beyond fear of sanctions or mere hope for personal reward.’ Krishnaswamy here mentions Sathe who has stated that legal and political elites determine the legitimacy as the ordinary people do not understand the intricacies of the law. Then, he went on to discuss the legitimacy during two phases, first, the early years of basic structure doctrine during 1970s and second, the phase after Indira Gandhi.
In this section, Krishnaswamy starts with the case of Golaknath, where the Supreme Court imposed substantive limits on Parliamentary amending power for the first time. During that time, Seervai and Tripathi took the lead in demonstrating that this judgment was wrong and that the court was guilty of overstepping constitutional boundaries. It was supported by many legal and political commentator of that period.
The impact of Dietrich Conrad’s paper presentation has a significant influence on transition from Golaknath to Keshavnanda. However, when judgment was passed it was severely criticized for being anti-revolutionary and other related ills. It can be said that, at that time, the judgment was considered illegitimate. Krishnaswamy appreciates the court in drafting judgment as on careful analysis of the social and intellectual history suggests that it was a remarkable performance in such adverse historical circumstances.
During emergency period, the Basic Structure Doctrine came out as a doctrine against the excess of political majoritarianism. Krishnaswamy criticized Seervai for his misjudgment of basic structure doctrine in election case. Seervai believed that Elections case has amended the basic structure doctrine and careful reading of this case is necessary to understand amending powers. Krishnaswamy praises the Sathe view that doctrine acquired legitimacy because of the subsequent developments. The experience of emergency has changed the view of various authors about legitimacy.
The dissenting voices gained prominence with the formation of the first BJP-led coalition government. However, Krishnaswamy believes that the sociological legitimacy was never unanimous. The doctrine was morally and legally legitimate during its inception, but it gained sociological legitimacy during and soon after the emergency period. After, all these discussions, he finally concluded the chapter and leave his remarks for upcoming authors to participate in forwarding the argument put forth in this chapter.
Sudhir Krishnaswamy’s chapter on the legitimacy of the basic structure doctrine, as reviewed in this analysis, presents a detailed examination through legal, moral, and sociological perspectives. Krishnaswamy methodically counters criticisms of the doctrine by addressing three core challenges: lack of constitutional textual basis, implied limitations, and accusations of judicial overreach. He defends the basic structure’s legitimacy by emphasizing constitutional interpretation’s dynamic nature, employing concepts like structural interpretation and multi-provisional implications.
In terms of moral legitimacy, Krishnaswamy balances democratic principles with constitutionalism, defending judicial review as an essential check against parliamentary overreach. He refutes claims that the doctrine undermines sovereignty by asserting that Indian constitutional sovereignty is not exclusively vested in Parliament, but rather shared among government branches.
Finally, Krishnaswamy’s discussion of sociological legitimacy highlights the gradual acceptance of the doctrine, particularly post-Emergency, when its value in protecting constitutional integrity became more widely recognized. Ultimately, Krishnaswamy’s work defends the basic structure doctrine as not only legally sound but also morally and sociologically justified, adapting democratic principles within constitutional frameworks.
Analysed and Written by:- Jeet Sinha and Suyash Shukla
Read similar content by clicking here.
IntroductionSection 479 of BNSS:Release of a person under Section 479 BNSS is subject to Judicial…
Section 478 of BNSS:No discretion of the court in bailable casesNo cancellation of bail under…
IntroductionJurisdiction of the Court and admissibility of the caseJurisdictional groundi. Subject matter jurisdiction or Rationae…
Written by Jeet Sinha. Dr Shashi Tharoor on the Political Reality of ReservationsAnalysis of Dr.…
By Akshay Deshmane1 Picture depicting one of the many pits left open by Hindalco. Why the…
IntroductionArguments of the United StatesEnforcement of an indictmentNot a legitimate Head of the StateInvolvement with…