Today’s Promise, Tomorrow’s Constitution: ‘Basic Structure’, Constitutional Transformations And The Future Of Political Progress In India
Volume 1 Issue 3 (2008)
The judgment in Kesavananda Bharati is considered by many as an attempt to rewrite the Indian Constitution. In arriving at the conclusions, the court propounded the ‘basic structure doctrine’ that identified certain constitutional features as so essential that they could not be altered. In this essay, I recount the development of Kesavananda’s doctrine and the implications that might follow. In particular, I explore the limits of constitutional development in India and sketch out a broader role for constituent power beyond the Constitution. I argue that the ‘basic structure doctrine’, though extremely significant, upsets key philosophical assumptions about constitutive sovereignty and the limits of constitutional authority, largely because of the way it has evolved. I mark the misjudgements that have been woven into the doctrine, a significant time is spent in extricating it out of this mess and my sentiment through the paper is that ‘basic structure doctrine’ can retain its legitimacy only to the extent to which it can adapt itself to a philosophically affluent framework of constitutional democracy, one which respects both the inevitability as well as minimalism of judicial role. My task takes me through landmark decisions in Nagaraj and Coelho and I explain how they herald a new beginning in the right direction. Towards the end, I call for a structural shifting the competing perceptions the doctrine enjoys in the ranks of judiciary and the Parliament in an effort to raise them to the task of constitutional accountability. This is a conversation about the most enduring contribution to Indian constitutionalism.