Wednesday, April 08, 2009

Debating Basic Structure Doctrine

Sudhir Krishnaswamy's recently published book, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine is an important milestone in our understanding of the BSD, ever since it was formulated by the Judiciary. We are glad to make our blog space available to what promises to be an interesting debate between Senior Advocate, Supreme Court,Raju Ramachandran, whose critique of BSD Sudhir deals with in his book, and the author himself. The debate begins:

Raju Ramachandran

The Krishnaswamy thesis….a reaction,not yet a critique….

At the outset, I must apologise to Venkatesan for the delay in responding to his request to comment on Sudhir Krishnaswamy's recent work on the basic structure doctrine. I wanted to read it in a continuous sitting. The book repays study. Sudhir has enriched the debate. I will soon be having the privilege of engaging with him at the Constitutional Law debate at NALSAR, Hyderabad. I have also been asked by NALSAR to review his book, with the full knowledge of my own stated position, and will therefore not be using this forum to pen a critique. My immediate reactions here, will of course lay the basis for that future exercise.

Apart from questioning the theory of parliamentary sovereignty, Krishnaswamy questions the representative character of Parliament. I agree with him that the “first past the post system” is seriously flawed. I have argued elsewhere that the present system does not make Parliament represent the will of the people. But, as I have again argued elsewhere, the basic structure doctrine prevents us from switching over to a better system. It is not just the Westminster model, but also the “first past the post system” which are the results of conscious and informed choices made by the Founding Fathers after considering other alternatives. The sanctioned building plan, the radiations and the vastu that emanate from the structure (the “multi-provisional implications”) prevent us from remedying the situation.

Again, Krishnaswamy does not find the judiciary to be all that unrepresentative. Independence of the judiciary is part of the basic structure. And to preserve that, judges must appoint judges. Consultation must mean concurrence. Any hopes still left for a “representative” judiciary?

The people are sovereign, no doubt. Krishnaswamy also concedes that. The court does not deny the power of the people to change the constitution, he says. But how? The Constitution does not provide for a referendum. The basic structure doctrine will come in the way of the Constitution being amended to provide for a referendum. An extra constitutional referendum will remain that: extra constitutional. We can have a popular revolution to impose a brand-new Constitution on the country. And we can then borrow from either of the two delightful doctrines evolved by Pakistan's Supreme Court in the course of that country's troubled journey: the doctrine of “revolutionary legality” and the doctrine of “necessity”. Whither constitutionalism?

Sudhir Krishnaswamy
May I first thank Raju Ramachandran for responding to the book and Venkatesan for giving me this opportunity to add a few words to the many words published in the book!

In this post I will examine some of the tensions that Raju Ramachandran highlights:

1. Is Parliament or the Judiciary more representative in character? I take it that the reason this question is relevant is that the answer to this question has a bearing on who has a legitimate basis to alter constitutional fundamentals. I’ve argued that legitimacy of institutional decision making does not arise solely out of its representative character. So even an ideally representative institution may make illegitimate decisions and a non-representative institution may make legitimate decisions. The converse is possible too. Hence, for the argument that the basic structure doctrine is legitimate to succeed I do not need to show that the Judiciary is more representative than Parliament in any sense of the term.

2. Can we change the First Past the Post election process or the process of appointment of judges? A significant part of the argument in the book is to show that a legitimate and defensible version of the basic structure doctrine must operate as a check on those forms of state action that ‘damage or destroy’ a ‘basic feature of the constitution’. As the standard of constitutional injury is exceptionally high (damage or destroy : erasure ) and the basic features are abstract constitutional principles which admit of many conceptions, the effect of basic structure review is not to bar all forms of constitutional change. For example, in Kuldip Nayar the court allowed an amendment to statutes which changed the voting process (secret vs open ballots) and the domicile rules (State vs India) for the Rajya Sabha elections. Hence, state action which alter the election to the Lok Sabha and appointment to the Judiciary which does not efface constitutional values should survive basic structure review.

3. How do we change basic features of the constitution? As neither the court nor the constitution outlines a process of changing basic features of the constitution, it seems that such a process must have an extra-constitutional provenance. To an extent this claim is accurate: it highlights the borderlines between the legitimacy bestowed by constitutional law and the legitimacy bestowed by political morality. Where political action seeks to alter the core constitutional principles it is unlikely to rely on that very constitution to buttress its claims. Such revolutionary politics will claim legitimacy from the political values it seeks to advance and this legitimacy claim will have to be assessed against abstract political and moral values. Even though such political and moral values go beyond the constitutional framework, there is no reason to suggest that the court may have no role. In cases of constitutional crisis such as in the Quebec Secession cases or the Pakistan coup cases, the court continues to play the role of being an arbiter of the legitimacy of processes of radical constitutional change. As Raju Ramachandran rightly points out, the Pakistan court has been radical enough to assert a jurisdiction at times of constitutional crisis, but unfortunately has not exercised that jurisdiction as robustly as some of us would have liked. Nevertheless, these examples of radical constitutional change show us that while constitution amending power may not have fully domesticated political revolution, it is not necessary to assume that such revolutionary politics is not subject to legitimacy constraints imposed by the judiciary or other political actors.
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