Tuesday, September 27, 2005

The debate over the true author(s) of the 'basic structure' doctrine

The Basic Structure doctrine is, as all Indian law students know, one of the fundamental pillars of Indian constitutional law, and is perhaps the most distinctive (as well as most written about) aspect of constitutionalism in India.

There has been considerable debate over the issue of the true author of the doctrine. The dominant perception in contemporary times appears to be that this honour belongs to Nani Palkhivala, one of independent India's most eminent lawyers. Palkhivala was the lead lawyer for the petitioners in Kesavananda Bharati v. State of Kerela (1973), and did in fact argue for an implied limitation on Parliament's amending powers. In his words,

"Parliament had no power to destroy or impair the essential features, the basic elements or the fundamental principles of the Constitution. ... ... ... It is clear beyond doubt that one of the well-settled meanings of the word "amend" is that which would preclude the power to alter or destroy the essential features, the basic elements, the fundamental principles of the Constitution; and it is submitted that the word "amendment" bore that meaning in Article 368." (Note that Palkhivala didn't use the phrase "basic structure", preferring to use the terms "essential features", "basic elements" and "fundamental principles" of the Constitution)

Palkhivala famously went on to argue that "Article 368 should not be read as expressing the death-wish of the Constitution or as a provision for its legal suicide."

Fortunately, the full text of Palkhivala's written submissions to the Supreme Court are now available online, and they make for fascinating reading. The arguments marshall a number of separate but linked threads, and draw upon, among others, a close reading of the text of the constitution, the drafting history of the constitutional text, arguments from comparative constitutional law (referring to English, American and Australian cases and statutory/constitutional law) as well as earlier precedents of the Indian Supreme Court. What is striking is the use of simple, clear language, even in an area which is so ridden with legalese and jargon. The sentences are short, and employ words that are often stirring and powerful. This is a style which deserves to be studied and emulated, both in academic scholarship as well as in briefs submitted to courts.

Many leaders of the Indian bar assert that Palkhivala should be given credit for creating the doctrine of basic structure, as is reflected in a recent book consisting of essays in honour of Palkhivala. In his contribution to the book, Ashok H. Desai contends that Palkhivala "propounded" the doctrine of basic structure which, according to him, remains Palkhivala's "abiding contribution to our law and, indeed, to international constitutional jurisprudence." Yet another figure who has for long followed the Supreme Court - Arun Shourie - appears to endorse this view in a lecture delivered in January 2005. T.R. Andhyarujina notes that when Indira Gandhi sought to review Kesavananda, and Chief Justice Ray dutifully convened a 13-judge bench for this purpose, it was Palkhivala's passionate and vehement defence of the doctrine of basic structure over two full days which led to the dissolution of the bench and the dropping of the review. This would suggest that regardless of Palkhivala's role in enunciating the doctrine, his contribution towards preserving and establishing it within Indian constitutional jurisprudence, was enormous.

There are, however, other claimants to this distinction. In his tribute to Prof Dieter Conrad, formerly Head of the Law Department, South Asia Institute of the University of Heidelberg, Germany, A.G. Noorani traces the history of the doctrine to the theory of implied limitations that was first argued by M.K. Nambyar in the Golak Nath case (1967), the predecessor to Kesavananda. Noorani narrates how Nambyar had based his arguments in the Golak Nath case upon a reading of a lecture delivered by Prof Conrad in 1965 to the Law Faculty of the Benaras Hindu University. Most significantly, Noorani notes that in Justice Khanna's crucial opinion in the Kesavananda case (which is generally regarded as the tipping point which led to the creation of the doctrine of basic structure), the following words of Prof Conrad are cited with approval:

"Any amending body organised within the statutory scheme, howsoever verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its constitutional authority."

(An aside: Noorani goes on to relate how the doctrine of basic structure has shaped constitutional politics in Bangladesh and Pakistan, and points to a tragic aspect of South Asian legal studies: "There is a sad void in our academia. There is no institution which informs us of legal developments in neighbouring countries")

It would thus appear that, as is usually the case for any successful project, there are many who can rightfully claim authorship for the doctrine of basic structure. Based on this post alone, the people who form a vital part of the chain of authors are: M.K. Nambyar, Dieter Conrad, Chief Justice Subba Rao and other judges in the majority in Golak Nath, Nani Palkhivala, and Justice Khanna and the other judges in the majority in Kesavananda. Perhaps a more fruitful task for constitutional scholars would be to explore other figures and conceptions which influenced the creation and further development of the doctrine of basic structure from its inception in 1973 to its current manifestation.
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