June 12, 2021
The “Basic Structure Doctrine” is the most potent
tool in the hands of the judiciary to maintain and check the balance of power
that is required for the smooth functioning of the Indian Democracy. Legal
systems always have a hierarchical normative order (1-wh). Each system in such
an order always derives it authority from a system above it in hierarchy. A
constitution whether written or unwritten, contains the norm of exalted
authority and hence, is of the highest importance in any legal system. The
constitution lives the closest to the “basic” norm of the legal system and
derives its nature and character from it. (7-wh) This “basic” structure is the
identity of a legal system and it is not desirable for elapses of time to sweep
away its essential features. Recent literature calls for the codification of
the basic structure doctrine, in an attempt to define its limits and
effectively try to reduce the lack of judicial accountability that lies with
its use.
The objective of this paper is to argue against its codification
and propose some better alternatives. I will show how a codified doctrine has a
theoretically unjustifiable form and would bring along numerous adjudicatory
pitfalls.
Every single feature of this doctrine was developed
to address a situation that arose before the court in a particular case. Keshavnanda[i]
never provided any affirmative theory about how the basic structure doctrine is
to be discerned beyond a Potter Steward-esque view.[ii]
Justice Chandrachud, in Indira Gandhi v Raj Narain[iii],
promulgated the non-exhaustive nature of the doctrine in saying that "the
theory of Basic Structure has to be considered in each individual case, not in
the abstract, but in the context of the concrete problem.” Codification of the
basic structure doctrine would be a potential threat to its legitimacy. This
would be caused by a lack of conceptual crystallization of the doctrine’s
elements and its potentially arbitrary use by the judiciary. I will also
highlight a theoretical limitation of codifying the doctrine through
legislative amendment.
I argue that firstly, it is not possible for the
judiciary or parliament to predict all possible situations that would arise and
must be protected by the doctrine. We still do not know if all what is
considered to be basic today is conceptually crystallised.
The exact contents of this doctrine are not yet laid
out conclusively. The way it has evolved has upset some major philosophical
assumptions about legislative sovereignty and the boundaries of constitutional
authority.[iv]
The foundations of this doctrine have been built upon profound deliberation
over multiple cases before attaining crystallization. It is likely that certain
elements are still in this process and will move towards finality as individual
cases would require its use over time. If at a certain instance, the doctrine
is codified, it is possible that firstly, some elements would be left out and
secondly, some that have not fully developed, be included. Let’s take the
example of Judicial Review. If codification occurred immediately after Indira
Gandhi, then Judicial review would not have been a part of the doctrine.
The situation then created in Minerva Mills[v]
would face great difficulty. Either the court would have to invoke it as an
unwritten principle, making the initial process of codification futile, or have
the legislature add it to the code, which would be impossible given the
political situation. The unwritten nature provided the Supreme court with room
for a “self-styled benchmark of structural essentialism” [vi]
that helped judicial review become a part of the basic structure when required.
This power has been the centre of much debate and the proponents of
codification seek to define its limits. Codification, however, will lead to
more problems. It will cause the arbitrary use of the basic structure doctrine.
A misguided illusion of clarity, generally associated with codification
principles, will only amplify these issues.
Courts bind themselves by precedent so as to prevent
arbitrary and inconsistent decision making. A written doctrine will allow a
court to depart from judicial precedent by invoking the written text as a
generically valid reason and hence, weaken the “judicial commitment to stare
decisis.”[vii]
Two features of a codified doctrine could be the reason for this claim.
Firstly, the existence of an authoritative code would give definitive answers
to questions of constitutionality. This would be explicitly expressed by the
codified doctrine. Now, the second feature – the doctrine’s status as essential
unamendable law would give possibly baseless interpretations by the judiciary,
ratification. The court can insist that it is merely executing what the code
dictates. Of course, the degree of this insulation would depend on the
abstraction and generality of the codified doctrine. The constitution of
Honduras has a highly specific eternity clause that dictates the character of
the government.[viii]
The 2009 Honduran Constitutional Crisis can be thought of as a direct result of
the presence of such a specific dicta that blurred boundaries between rules and
principles.[ix]The
avenue to depart from precedent and such judicial insulation may not just
encourage arbitrary behaviour, but also intellectual sloppiness and an
opportunity for judges to pursue personal political agendas.[x]
Proponents believe that codification will provide
clarity about the limits on legislative action.[xi]
However we must understand that the meaning of many substantive principles,
when formulated in a normative context- are inherently unclear. The political
concepts associated with words such as “equality” and “liberty” are highly
contested.[xii]
Codification will present such contested concepts as clear and indisputable.
This would only create and illusion of clarity and solidify the aura of
judicial opinion that tries to define it, having negative consequences on any
judicial or even societal debate over the content of such principles.[xiii]
One of the biggest problems faced by any legal
system is to balance itself between maintaining stability and continuity on one
hand, and flexible and responsiveness on the other. The form of the
constitution, and more remarkably, of the basic norm that sustains it, plays a
deterministic role in its position between these two extremes. The form of a
codified foundation fails to strike the right balance mentioned above. An
unwritten basic structure doctrine will find a better balance between this much
required stability, and the need for some malleability to adapt to the changing
needs of society. It does this as the uncodified elements respond to “policies
and concerns of a society in an organic, diffuse manner without any compromise
of stability.”[xiv]
Although not directly related to adjudication, I
want to address the theoretical baselessness of having the legislature codify
the basic features of a constitution. The 15th Amendment Act[xv]
in Bangladesh, constitutionalized the essential features of their constitution
and explicitly confirmed the limited amending power of the legislature.
According to the ‘delegation theory’, “limitations upon the delegated secondary
constituent power can solely be imposed by the higher authority from which it
is derived – the primary constituent power.”[xvi]
The validity of an unamendable doctrine codified by the legislature would be
threatened when faced by a conflicting norm created by the same authority. Such
codification, therefore, would be administered by the maxim – “lex posterior
derogat priori”. The Bangladeshi Amendment was criticized by constitutional
theorists who founded their claim on this maxim, arguing that a constitutional
amendment cannot establish its own unamendibility. An implicit or unwritten
doctrine would naturally come into existence for maintaining the legitimacy of
such aamendment, making the initial process of codification theoretically
futile. A national referendum could help in legitimizing such a code without an
unwritten interpretation but conducting a fair referendum to know the true
‘will’ of the people would face some serious practical problems in the context
of India.[xvii]
Many misjudgements have been woven into the
unwritten doctrine that have caused critics to advocate for its explication.
The doctrine has often been invoked in situations when the meaning of the
subject constitutional norm has several reasonable interpretations. It is
possible that judges link their own cores of jurisprudential understandings on
questions of basic structure, even when reasonable minds might differ in
opinion.[xviii]
The lack of constitutional accountability and restraint has cause people to
advocate for its codification and consequently, the explication of its
limitations.
It is well received that its reins cannot be let
loose without any accountability. However, for striking the right balance
between restraining ‘constitutional’ procedures used to achieve
unconstitutional ends and the unnecessary, baseless or overt use of this
doctrine, codification is not the answer. Maybe two possible solutions exist.
Instead of codifying the doctrine and limiting its
resilience against the unpredictable challenges posed by the various routes of
action that can be adopted by anti-democratic actors, an approach where courts
are influenced by democratic principles rooted in constitutional systems beyond
the borders of its own jurisdiction, can be considered. The expansion of this
idea would go beyond the scope of this paper.
The reformation of judicial review can also be
explored. The doctrine was created in special circumstances to protect the
fundamental structure of the constitution.
However, today, the unnecessary and excessive use of the doctrine is a
reality that threatens its very special character. It has been “extensively invoked to affect
policy decisions”[xix]
and its indifferent evocation has been the root cause of resentment against it.
Explication or codification of the doctrine is, again, not the answer to limit
such use. Rather, the process of judicial review needs to be restructured in a
way that protects the basic features of the constitution against infringing
laws without the actual invocation of the doctrine itself. This argument
derives its strength from the understanding that any law which violates the
basic nature of the constitution, would also, in most likelihood, be
inconsistent with some other part of the constitution. This particular law could
breach some fundamental right or some other constitutional provision which does
not necessarily mean that the law is violative of the basic structure. In such
a scenario, the judiciary must use the lower principle to invalidate the law.
In other words, a law that is expected to infringe the basic structure, should
not pass the judicial scrutiny of an applicable constitutional provision. The
repeated use of the doctrine will not just impair it but also motivate
institutions to bypass its moral authority.[xx]The
restructured judicial review process can prevent this, without the need for
codification and its associated issues.
It must be noted that the core of both these opinions revolve around the willingness to trust the judiciary and the application of their discretion in protecting the Constitution of India. It would be a stretch of our imagination to believe that the decisions of a court fall neither towards the constitution not towards the ‘consent of the governed’.[xxi]The case against the doctrines codification far outweighs its benefits, especially in the light potential solutions for the shortcomings of an uncodified basic structure doctrine.
[iii]1975 AIR 1590
[iv]Satya Prateek, Today’s Promise, Tomorrow’s Constitution: ‘Basic Structure’,
Constitutional Transformations and The Future of
Political Progress In India, 1 NUJS L. Rev. 417 (2008)
[v]1980 AIR 1789
[vi]Supra 3
[vii]Pek, Jane. (2008). Things Better Left Unwritten? Constitutional Text and The Rule of Law. New York University Law Review (1950). 83.
[viii]Honduras Const. Article 374
[ix]Friedman, A. (2011). Dead Hand Constitutionalism: The Danger of Eternity Clauses in New Democracies.
[x]Richard A. Posner, The Problematics of Moral and Legal Theory 264 (1999).
[xi]William E. Nelson, Americanization Of the Common Law 90 (1975)
[xii]Margaret Jane Radin, Reconsidering the Rule of Law, 69 B.U. L. Rev. 781, 800 (1989)
[xiii]F.A. Hayek, Law, Legislation and Liberty: Rules and Order 86 (1983). 107
[xiv]Supra 7
[xv]Bangladesh Const. (Fifteenth Amend.) Act, 2011.
[xvi]Roznai, Y. (2013). Unconstitutional Constitutional Amendments—The Migration and Success of a Constitutional Idea. The American Journal of Comparative Law, 61(3), 657-719. Retrieved from Http://Www.Jstor.Org/Stable/43668170
[xvii]Excerpt from Y. Roznai, Unconstitutional Constitutional Amendments – The Limits of Amendment Powers, Oxford, Oxford University Press, 2017 (Part Ii, Ch. 4, 5).
[xviii]Rosalind Dixon, David Landau, Transnational Constitutionalism and A Limited Doctrine of Unconstitutional Constitutional Amendment, International Journal of Constitutional Law, Volume 13, Issue 3, July 2015, Pages 606–638
[xix]Supra 3
[xx]Supra 3
[xxi]Levinson, S. (1995). Responding To Imperfection: The Theory And Practice Of Constitutional Amendment. (Course Book Ed.). Princeton: Princeton University Press.
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