The doctrine of basic structure

Part - III
The constitutional jurisprudence of Commonwealth countries and the Americas across the Atlantic, where written constitutions were framed in the 17th and 18th centuries, refers to principles, rules or norms. However, doctrines of such great amplitude that can even bind parliament, universally considered to be the repository of the legal sovereignty of a state, were never mentioned by any authority. The doctrine of basic structure has mythical foundations and has hardly been followed in Commonwealth jurisdictions – except in Bangladesh.
It is true that there are some constitutions that have entrenched provisions, which are beyond the amending powers of parliament. But at the same time there are other methods provided in these constitutions for the amendment of even such provisions. Article V of the US constitution provides two separate methods for amendment. There is one limitation alluded to with regard to the number of seats in the Senate for a particular state which cannot be altered without the consent of the state concerned. This is read by some scholars as a limitation on the amending power of the US Congress.
The flip side of the argument is that it is not a limitation but an additional condition, which was added in the aftermath of the failed experience of confederation. Thus if a concerned state agrees to reduce the number of its senators in the US Senate, then the Congress can amend even the said part of the constitution. It cannot therefore be said that such a provision is un-amendable. Similarly, some writers refer to section 79(3) of the Basic Law of Germany, which is equally inapt. As argued by Dr Basu in his seminal work on Comparative Law, the ‘Basic Law’ is not a constitution but merely a basic law and thus only a transitory arrangement. Section 46 of the Basic Law of Germany envisaged a permanent constitution for Germany.
The more recent constitutions and countries that are new entrants to democracy provide for entrenched provisions, which are put beyond change by a majority. No such provision was made by the Indian Constituent Assembly. Debates on the Indian constitution do not provide for any limitations. In fact, speeches made in parliament by Nehru and Dr Ambedkar on the occasion of the First Amendment are testimony to the fact that the founding fathers did not recognise any limitation on the amending power of parliament.
It is relevant here to point out that the Indian Constituent Assembly was entrusted with this task only through another legal instrument – the Indian Independence Act, 1947. Although the Constituent Assembly, which came into being after elections in 1946, was elected to frame a new constitution for India pursuant to the Cabinet Mission, it could not complete its task. This was because, after Partition, India was divided into two successor states. The Constituent Assembly of 1946 was split and the split assemblies became legislatures as well as constituent assemblies for the new dominions under section 19 of the Indian Independence Act, 1947.
The Indian Independence Act was passed by the British parliament and legally, but not politically, it was still possible for the British parliament to repeal this Act. An assembly that was itself a product of another parliamentary act could not claim to have “constituent power” in the sense that it was a supra-constitution body. It was not like the US Convention assembled in Philadelphia in the summer of 1787 after overthrowing the British rule. Thus it was absolutely a misplaced argument by the Indian Supreme Court that the Constituent Assembly which framed the constitution was a constituent power and that the parliament(s) which came into being after the constitution was framed did not have the same or equal power as the said ‘Constituent Assembly’.
It may be recalled that the fundamental basis and model upon which the Indian constitution was framed was the Westminster model where the foundational principle of constitutional law was that the Queen in parliament was sovereign. The British parliament is sovereign in the legal sense of the word. This principle is equally recognised in respect of other legislatures. In Bribery Commissioner v Ranasinghe (1965), the Privy Council reiterated this constitutional position in so far as the powers of the legislature in respect of the amendment were concerned. But can it be said that the judiciary is not sovereign because it cannot declare a statute void?
How then are the decisions of such a court binding as the binding nature of decision is an attribute of sovereignty? Put differently, legal sovereignty resides in parliament as far as the UK is concerned. Thus it was constitutionally impossible to place any restrictions on parliament. Otherwise it would simply mean that sovereignty resided somewhere else and not in parliament. The question would then be: where does sovereignty reside? If it was argued that the Constituent Assembly in the exercise of its constituent power had placed limitations or limited the powers of the subsequent parliaments or legislatures, it would lead to absurd consequences. This situation would take us back to the 1930s when the British parliament abdicated its power to legislate for the members of the Commonwealth by passing the Statute of Westminster 1931.This indeed is an irreconcilable proposition.
Any constitution or for that matter any state in itself is not end but a means to an end and that end is usually given in the preamble to a constitution. The US constitution recites this ideal in these words “We the people of the United States in order to form a more perfect union, establish Justice, insure domestic tranquillity, provide for common defence, promote the general Welfare, and secure the Blessings of Liberty to...”. The Indian constitution also has a long preamble and a huge list of ideals some of which were added by the 42nd Amendment. These ideals are indeed very high and noble and much cherished by the people of India.
In order to achieve those high ideals and such other ideals that a nation chooses to set for itself, it has to have the ability to change with changing circumstances and adapt its basic documents such as its constitution for its sovereign needs. Thus if a constitution or any of its provisions proves to be an impediment in achieving those ideals, then such a provision cannot be allowed to stand in its way and the state’s sovereign body should have the power to amend it.
Hypothetically speaking, India now is a secular socialist republic. If secularism is threatened by a majority that intends to convert into a religious state, can it be argued that the elections of such a party to parliament would be void? Interestingly, this high ideal of secularism was added to the constitution of India after 28 years of it being framed in 1975. There was no bill of rights added to the US constitution when it was framed. There is express provision in the US constitution providing for Judicial Review. The 14th Amendment to the US constitution, which was adopted after the civil war and the assassination of one of the most respected presidents of the United States, is in fact the whole constitution of the United States of America.
Today, the word ‘socialist’ used in the Indian constitution may have to be given different meanings. The ‘secular’ India sank into the Indian Ocean in 1992 when Hindutva attacked the historic Babari mosque at Ayodhya and this high ideal of secularism that should have been the one of the most salient pillars of the basic structure was destroyed forever. And the Supreme Court of India did nothing. The doctrine of basic structure has been accepted in India and it may not be easily possible to overrule it. But events of the past arguably prove that judicial doctrines are hardly a sure guarantee for the liberties of the people, particularly the minorities of India.
The writer is additional attorney general for Pakistan.
Concluded