What led to the threading of the basic structure doctrine and constitutional morality within the Constitution? Was it always there or was it incorporated by the transformational role played by the judges? Have the basic structure and constitutional morality become meta-constitutional norms?
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IF the Constitution of India provides for a legal check on the State, then it is quite logical that an independent body of judges to enforcer legalism should follow. However, judges face a nagging question regarding the precise role they have to play while interpreting the Articles of the Constitution of India.
How far does the role of judges extend?
Are judges merely expected to find what the intent of the Constitution-makers was when they drafted the document, i.e.; sententia legis; or, are they expected to play a creative role in evolving meta-constitutional norms after looking into the social, moral and political factors in light of the essence or spirit of the Constitution? What spirit are they supposed to extricate?
We cannot disagree with the part judges have played when they introduced transformative constitutionalism, which started essentially from the evolution of the basic structure doctrine and led to constitutional morality.
We cannot disagree with the part judges have played when they introduced transformative constitutionalism, which started essentially from the evolution of the basic structure doctrine and led to constitutional morality.
In the latest case of the Central Board of Dawoodi Bohra Community versus State of Maharashtra (2023, SC), while rejecting the ‘originalist’ approach, the Supreme Court has proposed a ‘living instrument’ approach in the interpretation of the Constitution. Does it mean that Indian judges have moved into the realist school of positivism from the English Austinian school to play the creative role of law-making?
Transformation of the State
A quick peep into the political theory of the State reveals that different schools of political thought have different explanations for a State; State being a subject of constitutions.
Initially, a State used to be government-centric. However, during the Age of Enlightenment in the 17th and 18th centuries, the ideas of liberalism brought individuals to the centerstage.
John Locke echoed that each man has a natural right to life, liberty and property, and the State founded to govern must not violate these rights. He laid the foundation for the development of a normative constitution.
English jurist Dicey fine-tuned normativism by introducing legalism in the constitution by injecting the idea of the rule of law.
The enforcement of a constitution is a litigation process that depends on judges who not only interpret the constitution but also generate constitutional norms like the basic structure doctrine and constitutional morality.
Basic structure doctrine
The true power of building and amending the Constitution lies with our constitutional makers. They were conscious of making the Constitution flexible enough, so that in order to maintain the essence of democracy, the State could make amendments to avoid constitutional collapse. This power to re-engineer by amendments is known as the derived constituent power.
The amendment of the Constitution is done through an established process which is always prone to political pressure. When certain ideologically committed forces gain electoral recognition, they try to bamboozle the constitutional process. This mechanism of amendment should not be permitted to be used as a weapon to destroy the Constitution or remove the identity of the Constitution completely.
Hence, it is only logical that the derived power of constitutional amendment is limited to only changing the text of the Constitution but it cannot change the identity of the Constitution.
The enforcement of a constitution is a litigation process that depends on judges who not only interpret the constitution but also generate constitutional norms like the basic structure doctrine and constitutional morality.
The Supreme Court by a majority of (7:6) in Keshvananda Bharati versus State of Kerala (1973 SC) read the doctrine of basic structure as an implied restriction on the derived constituent power to amend the Constitution that is vested under Article 368 of the Constitution. What looks like a plenary power of the Parliament to amend the Constitution has been converted to restrictive power by implying a basic structure.
The basic structure doctrine is more of a structural identity doctrine. However, what is the route of importation of this doctrine? It appears that neither a literal nor a functional approach to the interpretation of the Constitution appears to fully explain the incorporation of basic structure doctrine in Article 368.
Recently, tracing the judicial history, the Supreme Court recalled in the Janhit Abhiyan versus Union of India (2023 SC) (in which Justice Dinesh Maheshwari says): “A precursor to the developments aforesaid could be traced to the year 1965 when a German jurist, Prof. Dietrich Conrad (1932–2001) gave a lecture on Implied Limitations of the Amending Power at the Banaras Hindu University wherein he, inter alia, asked: ‘Could the amending power be used to abolish the Constitution, and reintroduce, let us say, the rule of a Mughal emperor or the Crown of England?’”
Later, he wrote an article titled Limitations of Amendment Procedures and the Constituent Power, published in the Indian Year Book of International Affairs, wherein he described the limits on the amending power as follows: “The functional limitations implied in the grant of amending power to the Parliament may then be summarised thus: No amendment may abrogate the Constitution.
“No amendment may affect changes which amount to a practical abrogation or total revision of the Constitution, even partial alterations are beyond the scope of amendment if their repercussions on the organic context of the whole are so deep and far reaching that the fundamental identity of the Constitution is no longer apparent.”
It is necessary to go back further. Justice Mudholkar, in his separate opinion in Sajjan Singh versus State of Rajasthan (1965, SC) mentioned basic features of the Constitution by referring to the passage from the judgment of Fazlul Qadar Chaudhary versus Abdul Haq (1963) of the Supreme Court of Pakistan.
Could the amending power be used to abolish the Constitution, and reintroduce, let us say, the rule of a Mughal emperor or the Crown of England?
At a higher political level, one who believes in constitutionalism (i.e., a constitutionalist) may defend the basic structure doctrine by referring to the doctrine of necessity in order to preserve the true identity of the constitution.
A constitutionalist without conceding that international law is supranational law, may allude to Article 51(c) of the Constitution which dictates respect for international law and defends limits on derived constituent power to amend the Constitution. The preservation of democratic governance and human rights are obligations under international law and if they are not observed, even intervention by the international community is arguably justified.
What finally emerges is that the injection of basic structure doctrine into Article 368 cannot be read merely as the one arising from the technical interpretative process. But, it can be equally or more forcefully read as an outcome of judicial creativity to create a meta-constitutional norm for safeguarding the identity of the Constitution.
The doctrine has been used as a ground for challenging the constitutional amendments enacted under Article 368 of the Constitution and has also been used as an interpretative tool in shaping the Constitution.
Basic structure as a meta-constitutional norm has been accepted by similar judicial craftsmanship in several countries. Bangladesh’s Supreme Court, through its judgment in Abdul Manan Khan versus Government of Bangladesh (2011), struck down the 13th Amendment Act on the grounds of basic structure. Now, the doctrine has become part of the Constitution of Bangladesh through the insertion of Article 7B.
Similarly, after several conflicting decisions, the Supreme Court in Pakistan, in Constitutional Petition No. 12 has accepted the basic structure doctrine in 2015.
The Kenyan Supreme Court too has recently accepted the doctrine.
The doctrine of constitutional morality
The Supreme Court had read the Constitution as an “artificial construct on a dry piece of clay”. In ADM Jabalpur versus Shivkant Shukla (1976, SC) protection to life and liberty during the emergency was restricted.
The popular theme was that the Supreme Court could have invoked common law by making reference to Article 372 or could have invoked constitutional convention for protection of life and liberty.
What finally emerges is that the injection of the basic structure doctrine into Article 368 cannot be read merely as the one arising from the technical interpretative process. But, it can be equally or more forcefully read as an outcome of judicial creativity to create a meta-constitutional norm for safeguarding the identity of the Constitution.
Due to such absence of a pre-existing unwritten law, the interpretation of the Constitution undoubtedly poses difficulties. Dr B.R. Ambedkar, who was the chairperson of the drafting committee, had appealed for constitutional morality as the body of constitutional conventions by referring to Greek historian Grote.
This was noted by Justice A.N. Ray in Keshvananda Bharati Case in a passing reference. This shows that the Supreme Court was readily accepting constitutional morality.
Constitutional morality has made its re-entry in the 21st century. In Manoj Narula versus Union of India (2014 SC) constitutional morality was first recognised, but the Supreme Court became extra-cautious and did not apply the doctrine and disqualify a person who had been charge-sheeted from becoming a minister under Article 75 (1).
However, in Indian Young Lawyers Association versus State of Kerala (2019 SC), popularly known as the Sabarimala case, the Supreme Court applied the doctrine of constitutional morality to explain the word ‘morality’, which excludes social morality and aligns it with constitutional canons.
The Supreme Court declared that the word ‘morality’ stated in the opening words of Article 25 should refer to constitutional morality and not to social morality and by such process, the Supreme Court absorbed the equality or anti-discrimination clause that are entrenched in Articles 14 and 15 into Article 25 to declare that the prohibition of entry to women of menstruating age into the temple is discriminatory and unconstitutional.
In the case, though then Justice D.Y. Chandrachud concurred with the then Chief Justice of India Dipak Misra and Justice Ajay Khanwilkar, but in his separate opinion he did not interpret the word ‘morality’ in the sense of constitutional morality. He drew inspiration from the doctrine by saying “the values of constitutional morality are non-derogable entitlements”.
In Navtej Singh Johar versus Union of India (2018, SC), the (then) Chief Justice of India Dipak Misra took constitutional morality to the next level and held that any law inconsistent with constitutional morality is unconstitutional. Thus, constitutional morality also became a ground for invalidating the law.
“While testing the constitutional validity of an impugned provision of law, if a constitutional court is of the view that the impugned provision falls foul to the precept of constitutional morality, then the said provision has to be declared as unconstitutional for the pure and simple reason that the constitutional courts exist to uphold the Constitution.”
Justice Nariman and Justice D.Y. Chandrachud while concurring with (then) Chief Justice Dipak Misra referred to constitutional morality as an interpretative tool in their separate opinions. It is thus established that constitutional morality is invoked in interpreting constitutional provisions as well as in invalidating laws.
Also read: The Making of Constitutional Morality by Indian Judiciary: History, Significance and Concerns
Constitutional morality is not an abstract morality. Equally, it is not social morality-based. It is not deduced from the natural law and much less from the culture or dharma or divinity. Dr Mohan Gopal, according to Geeta Oberoi, as an academician, first decoded constitutional morality in 2013 in the form of FEDEF (freedom, equality, democracy, equity and fairness). The constitutional morality embraces justice, liberty, equality and fraternity which the Preamble of the Constitution proclaims at the outset.
The doctrine of constitutional morality is judicial creativity and has emerged as the meta-constitutional norm. However, it also has been criticised.
Interestingly, American realists who separate law from morality have recognised morality to the extent of removing vagueness and ambiguities in the Constitution. Distancing from originalists theory, the ethos of law has also been advanced in the United States. This school is influenced by realists advocates for reading the moral or ethical principles which are underlying the text of the Constitution.
American jurist Ronald Dworkin forcefully said, “The Constitution is America’s moral sail, and we must hold to the courage of the conviction that fills it, a conviction that we can all be equal citizens of a moral republic.”
The decision of the US Supreme Court in the Bolling case is considered an authority on the reading of ethos of the law in the Fifth Amendment concerning the due process clause. The US Supreme Court prohibited the District of Columbia, which is a federal enclave, from allowing racial segregation in schools even though the Fourteenth Amendment on equal protection clause does not apply since the federal enclave is not a State.
However, even in the United States, constitutional morality is an all-encompassing or pervasive test. Like in India, the moral reasoning test in the United States seems to be limited to the provisions of the Constitution like the due process clause and equality clause.
The doctrine of constitutional morality is judicial creativity and has emerged as the meta-constitutional norm. However, it has also been criticised.
Reacting to the doctrine, then attorney general K.K. Venugopal in a speech outside court has said it is a “dangerous weapon” and he hoped it should “die at birth”.
Are Indian judges realists?
The basic structure doctrine and constitutional morality are meta-constitutional norms as discussed above. If the Constitution is an absolute rule and constitutes a grundnorm in the hierarchy of laws in Kelsonian words, there cannot be any super norm to test its validity. However, we are past Kelson’s positivism or the English positivist’s theory of law. We have quietly moved into the realist or pragmatist movement which has thrived in the United States.
The realists too consider the law as an expression of the will of the State. But, the American realists say it is made through the medium of the courts. No doubt, English common law judges in the Austinian sense say judges never really make law but declare the already existing law.
However, American realists say questions of law “could not be answered by pure logical inference; they must be decided by reference to social, moral, political and other factors.” Oliver Wendell Holmes pithily puts it, “The life of the law has not been logic, it has been experience.”
Ashraf Ahmad of the Columbia Law School writes in an article, “Decisions that ratify a norm as the authoritative gloss on constitutional text are a quintessential example of courts creating law.”
Geeta Oberoi in her book, while advocating for judges to bridge the gap between law and justice, refers to American realists. She says that Govind Das developed on what constitutes judging in a simple formulae L+X = J, where L stands for law, X stands for justice and J stands for the power of the judge to interpret the law.
However, meta-constitutional norms do not come out of the blue. They are not the gift of natural law based on religious text or reason as some argue. They are essential principles that must be extracted from the Constitution itself by creativity.
Conclusion
The basic structure doctrine and constitutional morality are meta-constitutional norms evolved by judicial creativity. Their incorporation cannot be fully defended by any technical interpretative processes. Indian judges cannot deny that they have moved into the realist movement which is popular in the United States since Holmes’ days in the 1920s.
The framers of the Constitution were not unaware of the developments in the United States. The twin articles of the Constitution, i.e., Article 141, which provides for declaration of law and Article 142(1), which empowers “doing complete justice in a cause or matter”, appear to reflect the creative role of the courts in a ‘realist’ style.
The basic structure doctrine is more like a doctrine of structural identity of the Constitution injected into Article 368, which is a repository of derived constituent power to amend, but not to destroy the structural identity.
The doctrine of constitutional morality is to espouse constitutional ethos. It does not include abstract morality. It equally excludes religious morality, divinity, culture or dharma. Constitutional morality embraces justice, liberty, equality and fraternity which the Preamble of the Constitution proclaims at the outset.
Both the doctrines may seem to be overlapping but they operate in separate terrains. The basic structure doctrine is wider, touching the identity of the whole Constitution. Constitutional morality is the moral conscience of the Constitution of India and reflected in the Preamble.
This article is an edited version of a lecture delivered on Ambedkar Jayanti, 2023, hosted by Karnataka State Bar Council’s Legal Academy, Bengaluru.
