THERE has been a longstanding debate on whether the judiciary or the elected government should have the ultimate authority in constitutional republics. This debate has been particularly prominent in the US.
In that country, the popular and administrative discourse often positions Congress as the true bearer of people’s will, thus giving it precedence over the judiciary.
Despite the overwhelming support for this narrative, Larry D. Kramer, in The People Themselves: Popular Constitutionalism and Judicial Review, argues that judicial review has established its preeminence in constitutional matters, albeit on shaky grounds.
The quandary lies in the predominant belief that by granting the judiciary the power to determine the constitutionality of legislative acts, the US risks undermining the federal compact of the republic and, perhaps, taking ultimate sovereignty away from the people.
Similarly, Rohit De, in his book A People's Constitution: The Everyday Life of Law in the Indian Republic, explores how the Indian Constitution, shaped by “elite consensus” and containing “alien antecedents”, became part of Indian democracy through the mundane experiences of ordinary citizens.
Although written in different contexts, the books emphasise the role of people in embedding the State (and its instrumentalities) in the everyday lives of citizens (through their interaction with the State) and, thus, expressing the Constitution as an act of popular will.
Simultaneously, they also prompt us to consider a fundamental debate that democracies are facing globally today. On one hand, the notion of popular sovereignty asserts that governments derive legitimacy from their allegiance to ‘the people’. On the other hand, the principle of constitutional legitimacy calls the supremacy of the constitution, the rule of law and the credibility of democratic institutions essential features of liberal democracies.
In recent decades, the rise of populist and majoritarian politics across the world has intensified this dilemma. From the ‘world’s oldest democracy’ to its largest, contemporary politics is experiencing a surge in populist movements and majoritarian governments.
While democratic systems provide a fertile ground for political change, this wave of majoritarianism offers a redefined democratic model that departs from the foundational principles of liberal constitutionalism.
This newly projected perception of democracy is marked by a frequent undermining of democratic institutions and endorsement of the electoral majority as the singular source of legitimacy, aiming to dismantle the structural balance a constitution provides.
Although the judiciary is becoming the last line of defence in preserving constitutional integrity, the democratic system needs something inherently unalterable that can uphold the foundational principles of constitutional democratic order.
It is precisely these developments that make the debate over the basic structure of constitutions particularly relevant.
Global democratic overhaul
The doctrine of basic structure, which emerged in the Supreme Court of India in the canonical Kesavanada Bharati verdict in 1973, was the judiciary’s unique way of asserting the principle of separation of power that allocates equal responsibility to the fundamental instrumentalities of the State to maintain constitutional provisions.
The philosophical underpinnings of the basic structure doctrine were found in the works of Dietrich Conrad, who reflected on the substantive and procedural limitation on the parliaments’ amending power to the extent that the foundational principles of a constitution could not be altered.
Over the course of time, the doctrine has travelled to many countries, including Bangladesh, Pakistan and Uganda. However, we might want to think about the basic structure doctrine as a critical principle of constitutionalism in an era of global democratic crisis.
Lesotho
On November 1, the Court of Appeal of Lesotho, the highest judicial authority in the country, dismissed a review petition challenging the invalidation of the Constitution’s 9th Amendment, ruling that the amendment violated the basic structure of Lesotho’s Constitution by diminishing the Prime Minister’s discretion and altering the role of the King in the dissolution of the Parliament.
Introduced in 2020, the amendment had sought to regulate the powers of the Prime Minister in the event of a successful motion of no confidence. Since 2012, when the country entered an era of fragile coalition politics, the instrument of ‘motions of no confidence’ has become a significant constitutional process, leading to parliamentary instability. The court’s decision invites reflection on critical issues fundamental to constitutional preservation.
Among other things, the petitioners alleged that the court had overstepped by encroaching on legislative authority, arguing that the court’s reliance on foreign precedents was inappropriate.
They contended that the concept of basic structure was foreign to Lesotho’s jurisprudence and asserted that this doctrine deprived the ‘people’ of their power to amend the Constitution through a referendum.
While dismissing the review petitions, the court argued that although making laws for good governance is the prerogative of the legislative branch, Parliament’s law-making powers are limited by procedural and substantive safeguards, including the Bill of Rights and the basic structure doctrine.
In the basic structure judgment, the Court of Appeal of Lesotho recognised that certain fundamental principles underpinning the Constitution are so foundational that they cannot be altered through amendments. Judicial power involves authoritatively interpreting the Constitution and statutes implemented by the Parliament and declaring them to be unconstitutional if they are found to harm the Constitution’s basic structure.
Israel
Israel faces a similar constitutional crisis. Prime Minister Benjamin Netanyahu's government, leveraging its parliamentary majority, recently passed legislation limiting the Supreme Court’s ability to review government actions deemed “extremely unreasonable”.
The government argued that the law sought to lower the judiciary's ‘excessive interference’ with legislation and reform the ‘undemocratic process’ of appointing judges. However, it was actually part of a larger attempt to reduce the judiciary's role in national governance. It sought to increase government influence in the nomination of judges and reduce the binding authority of legal advisors, weakening the rule of law.
In an unprecedented move, the Supreme Court of Israel struck down a key component of this judicial overhaul, stating that it severely undermines the country’s democratic character. The ruling Likud party criticised the verdict, alleging that the court had disregarded the “will of the people”.
Mexico
In Mexico, a comparable instance of democratic erosion is underway. In October 2024, the National Congress, the country’s highest legislative body, passed a resolution making constitutional amendment ‘unchallengeable’ at the court of law, effectively eliminating the judiciary’s power to review constitutional amendments and rendering the Congress immune to judicial oversight.
Additionally, the resolution was given a retrospective effect, preventing the judiciary from reviewing recent judicial reforms, thus seeking to reduce judicial independence significantly.
The measure, pushed by the ruling National Regeneration Movement (Morena), a left-wing populist party, followed by the introduction of a new system requiring direct election of judges, effectively diluting the separation of power between the judiciary and the executive.
Under this new system, nearly all judges— including those of the Supreme Court— would be elected by popular vote, a model with few precedents globally. Critics argue that the reform threatens judicial independence and pits the judiciary against the executive, signalling a potential constitutional crisis.
While a section of the judiciary expressed serious apprehension about the future of constitutionalism in the country, President Claudia Sheinbaum accused the Supreme Court of overstepping its functioning and trying to change the “will of the people”.
India
India has witnessed similar challenges. When the Bharatiya Janata Party (BJP) came to power in 2014, an attempt was made to assert political control over judicial appointments through the National Judicial Appointment Commission Act (NJAC). However, the Supreme Court struck down the NJAC in 2015 as unconstitutional, stating that it threatened the constitutional principle of judicial independence.
The government expressed distress over the court's decision, arguing that it undermined the sovereign will of the people. Despite the ruling, the government has continued to undermine core principles of Indian democracy, including institutional independence and the rule of law.
Why is the basic structure doctrine important?
These examples reflect the global upheaval challenging constitutional democracies today. Kramer noted that modern democracies often separate political power into two domains. One is the domain of politics, where the people rule. Another is the domain of law, which is managed by judges and lawmakers, whose primary task is to implement the formal decisions produced in and by politics.
While constitutional law is typically interpreted and implemented by the judiciary, constitutional politics allows for a broader role of the people in shaping new constitutional norms.
Constitutional politics operates within a framework outlined by the text of a constitution, and our engagement with these foundational principles is crucial to preserving constitutional order today.
The debate around the basic structure doctrine invites us to engage with the constitutional history of its birthplace and overarching principles the framers of the Indian Constitution agreed to invoke in the newly independent polity.
India’s founding moment is marked by the adoption of a set of fundamental rights against the State’s unique and monopolised sovereign power. These rights emerged as a by-product of the contract between the State and its citizens.
While their roots can be traced to the concept of natural rights, the Constitution offers a unique framework that not only protects individuals from repressive institutions but also promotes equality among citizens by advancing the democratisation of society. This is precisely why the Constitution has adopted the right-bearing citizens as the fundamental constitutive category of Indian democracy.
The Constitution was adopted with the underlying notion that equal right-bearing citizens, notwithstanding their class, caste, religion, sex or race, would have freedom of expression, the right to profess their religion, the liberty to earn their livelihood, and the right to lead a dignified life.
At the same time, they would equally access the institutions of the State, which were created to protect, defend and serve them. The new system marked a stark departure from all other forms of governance that the people of India had experienced before, a relationship primarily underlined by the ruler and the ruled. The genesis of the Constitution’s basic structure could be precisely drawn from these underlying principles upon which the Indian democracy was laid.
At the same time, India’s constitutional history is replete with instances where the constitutional text has been amended to accommodate the evolving needs and aspirations of its people, reinforcing its identity as a ‘people’s document’.
What makes our engagement with the Constitution as a transformative and living document worthwhile is its identity as a contested terrain where authorities of the past and aspirations of the future meet to construct a viable present.
Keeping this in mind, the framers incorporated the provision of a constitutional amendment, which allows the Parliament of the day to make changes that could best preserve the basic structure of the Constitution.
The instances of such amendments are not scarce, and there have been times when the Parliament amended citizens’ constitutional rights in order to preserve the founding ethos of the Constitution.
The Indian constitution’s remarkable ability to adapt, reimagine and mediate social and political struggles through the language of constitutionalism exemplifies the resilience of its foundational principles. These principles are rooted in the aspiration to sustain a liberal democratic order.
Conclusion
In liberal democracies, the constitution serves as a field where the citizens, the State and other existing authorities regularly interact, laying down a new narrative of constitutionalism and governmentality. These interactions are navigated by the core credentials of constitutions, which shape the structure of the State and encourage the development of robust constitutional politics.
The global instances of constitutional assault not only reflect a democratic crisis but also the enduring potential of these core features as a safeguard and a deterrent against constitutional erosion. In addition to making a normative claim about the importance of the basic structure of constitutions, it is equally vital to examine the empirical values that these foundational principles have sustained over time.
In India, a section of public and scholarly discourse has at times proposed drafting a new Constitution, citing the colonial legacy embedded in the existing constitutional framework.
However, beyond the aspirations of pursuing a ‘decolonising project’, it is crucial to contemplate the implications of altering the foundational principles of the Constitution. Over the past seven decades, these principles have served to unify a deeply divided society under a single state apparatus, fostering collective allegiance to the Constitution.
Here, the notion of constitutional morality might offer something valuable. In representative democracies, citizens exercise their electoral rights to assert popular sovereignty. However, notwithstanding their formation, the right-bearing citizens do not reduce to something lesser than popular sovereignty. Constitutional morality encourages an amicable ground where popular sovereignty and right-bearing citizens can coexist.
The premise of constitutional morality prevents any branch of government from declaring that it could uniquely represent the people. By implanting accountability principles among all branches of the State, the basic structure has created an arrangement where the primary organs of the State can equally represent the people.
It is important to preserve the basic structure in order to maintain a framework that fosters the co-existence of popular sovereignty and constitutional morality.
