A strange Constitution

A republic is not just a vehicle for the government. It represents a fundamental agreement to share certain values so we can all live together. The true basic structure in our republic is that fundamental agreement. Our political process was supposed to ensure that we honoured it. But we did not and, this resulted in it having to be enforced via the Basic Structure doctrine.

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OUR Constitution is strange. It is an adaptation of many constitutions, but still retains a fundamental character, a position now set in stone with the Basic Structure doctrine. This leads to a parallel one cannot help but explore, one with the ‘Ship of Theseus’ paradox.

The paradox may be stated briefly below as: 

“The ship wherein Theseus and the youth of Athens returned from Crete had thirty oars, and was preserved by the Athenians down even to the time of Demetrius Phalereus, for they took away the old planks as they decayed, putting in new and stronger timber in their places, insomuch that this ship became a standing example among the philosophers, for the logical question of things that grow; one side holding that the ship remained the same, and the other contending that it was not the same.

— Plutarch, Life of Theseus 23.1

The difficulty of defining the Constitution’s basic structure

If the text of the Constitution of India were replaced completely with another text altogether, via constitutional means, would it remain the Constitution of India? In order to set aside the broader question of whether such constitutional means do exist and if they do, let us assume such means did exist and see what conclusions we may draw.

In the name of preserving our democratic way of life, the basic structure doctrine takes a key democratic power away from us: the power to completely alter our destiny. It sets in stone an institutional structure that can never be uprooted.

It is possible to forecast future problems it may cause us. Were India to ever enter a super-national union of States (one can dream of peace), the Basic Structure could prove an impediment, even if this were brought in by means of popular referendum. If India were to join the International Criminal Court, India would have to deal with problems such as the right to be produced before a magistrate within 24 hours. Should we enter a formal military alliance, would we be able to implement even basic immunity provisions of a Status of Forces Agreement for foreign troops stationed here? Even democratic consent is insufficient to implement certain changes.

Our Constitution is strange. There is an unknowable part of the law that is in a sense alive. It manifests from the law to a living part of our political life. The conventions that make up these constitutions often hold far more weight than actual written constitutional instruments.

The Basic Structure, apart from preserving and entrenching a certain idea, is also something that is fundamentally undefinable. While judicial pronouncements (and very useful ones at that) illustrate what it is, there is always something more that it could be. This appears to be by design, to let the Basic Structure be responsive. To define the Basic Structure is as futile as attempting to define a ‘human’.

Therefore, our Constitution is strange. There is an unknowable part of the law that is in a sense alive. It manifests from the law to a living part of our political life. I can think of no other constitution that is similar, except perhaps those modelled after the British Constitution.

The conventions that make up these constitutions often hold far more weight than actual written constitutional instruments. The Crown must appoint, after an election, the winner as the Prime Minister. While on paper there is choice in the matter, in practice, if something like that is done, it would trigger a constitutional crisis. It would also look strange.

Their system though is responsive to the point that if a political consensus is reached, measures of change can move through parliament. Parliamentary sovereignty is allowed, but subject to ‘good behaviour’. In our system, the Basic Structure, since its introduction, has introduced a system of good behaviour among India’s political institutions.

Also read: As long as the basic structure of liberty, equality, dignity and secularism is untouched, the constitution will survive: Indira Jaising

Bearing on the ongoing public conflict between Executive and Judiciary

This can be seen in the long overdue confrontation between the Executive and the Judiciary which has recently emerged as a topic of national life. This was a long time coming as the Executive has been determined to use the Judiciary to do things it felt were not politically expedient. Leaving the issue of Section 377 of the Indian Penal Code for the court to decide instead of bringing in an Act of Parliament, for example. The Executive has seen it convenient to play out the political case in court. The growth of legal reporting probably aided in it as the increasing reporting of the judicial process, often without restraint, has resulted in judges becoming part of the political conversation. To the Executive, which is a political animal, this makes them a legitimate target as they are moving pieces on the chess board in the eyes of the public.

While many may complain in India about the judiciary interfering in the functioning of the executive branch, they must in the same breadth acknowledge that, for the better part of two decades or so now, the Parliament has been the last place in the country where anyone has ever been held to account. 

Neither perhaps will win this round, but if reform that both sides agree can be implemented is brought in, India could perhaps salvage a win. Which is why one cannot help but be despondent about India. India’s political process broke down so fundamentally that we, a ‘republic’, needed a Basic Structure; one to act as a guardian of our way of life — a role often performed by a monarch in some constitutional systems. The idea of our Constitution was that we were to be a republic. We got rid of the role of a constitutional monarchy, only to reinvent it again.

The Basic Structure doctrine in India is a vital safeguard that helps preserve democracy in the face of an executive branch that seems to increasingly be averse to the idea of it. In other systems, this protection is offered by a vigilant polity that keeps the elected classes in control by giving them a tightrope. Questions are asked by local people to their members of parliament, members of parliament question the executive, and hold it to account. While many may complain in India about the judiciary interfering in the functioning of the executive branch, they must in the same breadth acknowledge that, for the better part of two decades or so now, the Parliament has been the last place in the country where anyone has ever been held to account.

This is perhaps why it is justified to retain the Basic Structure doctrine. India’s true check on excessive executive power, through the involvement of regular people in governance, does not exist anymore. In some senses, India has a government of the people and a government for the people, but not a government by the people, as there is a distinct difference in political classes.

Such situations bear reminding that a republic is not just a vehicle for the government. It represents a fundamental agreement to share certain values so we can all live together. The true basic structure in our republic is that fundamental agreement. Our political process was supposed to ensure that we honoured it. But we did not and, this resulted in it having to be enforced via the Basic Structure doctrine. Now, who legitimately wields ‘absolute constituent power’ is a matter of doubt. With the public having no roles in judicial appointments, this power is effectively in practice wielded by the judicial branch.

The judicial branch enforces good behaviour among our institutions. It acts as a police force to ensure players are abiding by the rules. However, the judicial branch does not possess inherent executive power to enforce its own orders. Courts do not have a police service of their own. They cannot even enforce their own arrest warrants without the aid of the executive. The judicial branch therefore relies on ‘policing by consent’.

No more must leeway be given to government matters in courts. If a private litigant forfeits their right to a reply after three hearings, so must the government, and consequences must follow.

Attacks on the process of judicial appointments and a Vice-Presidential blitzkrieg on the Basic Structure signals that the Executive is now emboldened, and this conversation is not going away anytime soon. It is best for everyone that the Executive and the Judiciary have at it. Even if it is by the pretentious channels of tea and snacks at events, or summoning the Attorney General for India and asking him to scold his client, or even more recently, by making a public reiteration of recommended names for judicial appointments sent back by the Executive to the Collegium. All of this is a healthy feature of democratic life and we must welcome this conversation.

Also read: CJI pushes back on Vice Presidentbad precedent claim regarding Basic Structure; says it is judiciarys North Star

When our Constitution was adopted, no one could have imagined it would one day face a metaphysical crisis such as this. A crisis so remote that the public aren’t aware it exists because it doesn’t show up every day. For either side to win this round, the Constitution will have to undergo a fundamental change in character. The judiciary has the Basic Structure which is designed to be deployed to remedy a crisis by restoring the status quo. However, for the Basic Structure to work, the fundamental idea of ‘Constitution’ would still have to survive.

The Indian government’s turn to light-hand selective respect for the law, particularly in the areas of criminal law, has resulted in high profile drama entering the Supreme Court. If the judiciary is to use the Basic Structure, then there must be a Constitution left to use it to preserve the same. The government today frustrates the legal process by filing appeals against sound orders of the lower courts. The court system entertains them, and consequently, the conversation enters the courtroom.

Suggested salvo for the judiciary

The judiciary should consider taking a right that the Executive has always thought it possesses: the privilege of the Crown to be treated as a preferred litigant. No more must leeway be given to government matters. If a private litigant forfeits their right to a reply after three hearings, so must the government, and consequences must follow.

Procedural rules for the conduct of business in our courts need to be enforced. Right now, procedures are not strictly applied, and this is perhaps because the government is India’s biggest litigant. If the Executive can no longer converse in court about public affairs, there would be far fewer matters where the court would have to step in one way or the other. The Court has the right to determine how it conducts its business. It means that it can also take it away. Streamlining government business before India’s courts and treating it on par with ordinary business is a means of ‘soft power’ that the judiciary may employ to express its displeasure at recent executive conduct.

As India now enters the 74th year as a republic, we must enter it fully armed with the knowledge that our Constitution, as enacted in 1950, has fundamentally broken down and is being held together with a band-aid that is the Basic Structure.

One way to resolve the Ship of Theseus paradox is to say that the parts of the ship and the ship are two distinct objects that just happen to occupy the same spot in space and time. The Basic Structure follows this manner of resolution. The core of the Constitution, that is, the metaphysical element, is separated from the physical element, that is, the text. However, both are known with reference to the other. Like paired twins in a womb, if one dies, the survival of the other is unlikely. The Judiciary must act to preserve both, as the preservation of one is the preservation of another.

Also read: Basic structure and unwritten constitutional principles: analysing the Canadian Supreme Courts recent ruling in relation to the position in India

Basic structure as the band-aid of the republic

As India now enters the 74th year as a republic, we must enter it fully armed with the knowledge that our Constitution, as enacted in 1950, has fundamentally broken down and is being held together with a band-aid that is the Basic Structure. Unlike Germany, whose Basic Law comes with entrenched provisions that clearly define what is unalterable, India’s solution is not clearly discernible.

Germany’s post-World War Two context also gives meaning to having entrenched provisions, as Germany saw what happened to it when these entrenched provisions did not exist. India’s closest experience to this was when the National Emergency was proclaimed by Indira Gandhi. However, we had seen that it wasn’t the judiciary that finally removed Gandhi from her premiership, but it was the national political consensus against the Emergency that made it unviable. Therefore, the question, ‘Do we really need the Basic Structure?’ is a political one that remains open. Basic Structure is something India rightfully needs right now, but is it something that it will need in the future, is a question that also needs to be resolved.

A republic expects that its institutions will iron out their differences and live in harmony so that the citizen is placed first and at the centre of the story of governance. When that happens, the text of a Constitution is meaningless as governance itself becomes an expression of constitutionalism. The current climate gives one little hope that our expectations will be fulfilled, but a little hope is still hope.

The Leaflet