Constitutional Ism in India

8/4/2019 Constitutional Ism in India

1/24Electronic copy available at: http://ssrn.com/abstract=1006621

LOCATING POST-MODERN

CONSTITUTIONALISM IN INDIA: THE BASIC

STRUCTURE DOCTRINE

I refuse to be intimidated by reality anymore. After all, what is reality anyway?

Nothin' but a collective hunch.

- Jane Wagner

ANIRUDH BURMAN



TABLE OF CONTENTS

INTRODUCTION ............................................................................................... 3

AN EXERCISE IN LOCATING POSTMODERN ELEMENTS:TEAGUE V.LANE .... 7The judgment: ................................................................................................................. 8The postmodern analysis: ................................................................................................ 9

THE BASIC STRUCTURE DOCTRINE. ............................................................ 12The evolution towards a Basic Structure....................................................................... 12

The Keshavananda Judgment. ....................................................................................... 15

THE BASIC STRUCTURE CRITIQUE:ACONCLUSION .................................... 16Applying Hermeneutics................................................................................................. 18

The Courts Institutional Power. ................................................................................... 19

BIBLIOGRAPHY ....................................................................................... 22Statutes and related Documents: ................................................................................... 22Articles and Reviews:.................................................................................................... 22

Books and related works: .............................................................................................. 23

TABLE OF CASES........................................................................................................... 23Foreign Judgments .................................................................................................... 23

Indian Judgments....................................................................................................... 24



INTRODUCTION

The one non-debatable, non contradicted, inescapable truth we cannot deny is that the

world has changed drastically and maybe too rapidly to be made sense of, since the

Second World War. The glory of territorial power has been shorn of its halo by the onset

of economic power and the rise of the MNC, the cry of one nation one people by the

mantra of globalization, and at the same time the recognition of multicultural values.

Classical music has lost its followers to pop, and oratory has lost its voice to the

television and the media. In this scenario, it would be futile to sit in value judgment over

the changes that envelop us thick and fast, and instead accord recognition to what is

happening all around us.

I do not seek to trumpet the dawn of post-modernity, to analyse the existence of post-

structuralist behaviour, or to undertake exercises in deconstruction. My endeavour here is

to merely presume the existence of social and cultural ethos that are very different from

those that existed five decades ago, of the slow but gradual rise of forces that are all

around us while we struggle to grapple with them with tools handed down to us who

lived in a world that was suited to what they propounded.

To come to the question at hand, what is Post-modernism? To quote very succinctly,

Knowledge and truth are fantasies. Objectivity is unattainable. Foundationalism is

dead. We are limited to our historically situated, subjective perspectives.1

But this is not

all. To go beyond this theoretical diatribe, postmodernism can also be defined, if rather

simplistically as the cultural era in which we are living in.2

As such, it is something

which has already happened, and needs to be understood as it exists, not as it should be.

We do not seek to live in a world where no universal truth exists, but to recognize that no

1 Ken Kress,MODERN JURISPRUDENCE,POSTMODERN JURISPRUDENCE,AND TRUTH,95 Mich. L. Rev.

1871,at 18712 See David Harvey, The Condition Of Postmodernity: An Enquiry Into The Origins Of Cultural Change

(1989); Fredric Jameson, Postmodernism, Or, The Cultural Logic Of Late Capitalism (1991); Jean-Francois

Lyotard, The Postmodern Condition: A Report On Knowledge (Geoff Bennington & Brian Massumi trans.,

1984). As given in J.M. Balkin, What Is A Postmodern Constitutionalism?, 90 Mich. L. Rev. 1966


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-Postmodern Constitutionalism in India- 4

truth is universal, that there is another truth which might be in the nature of an alternative,

or in the nature of a contradiction.

In legal scholarship it has been used consistently in the sense conveyed by those basic

concepts. Stated in somewhat different terms, the postmodern school of thought

conceives of knowledge as always mediated by our social, cultural, linguistic, and

historical circumstances, and it will thus vary as those circumstances change. The truth,

consequently, can never be transparent to us; it is and must always be a social

construction, one made even more opaque by the mediation of language, a system of

communication inherently incapable of capturing reality. This includes the "truth" about

legal doctrines, legal principles, and legal interpretations:All are social constructions.

Both in commonsense, everyday understanding and in Western philosophy, including

traditional jurisprudence,3

the bedrock assumption has been that we are capable of

representing reality more or less precisely and that some knowledge transcends particular

perspectives and contexts. This is exactly what postmodern thought rejects. Because, in

the view of postmodernists, knowledge of the world is filtered through the structures of

the socially and culturally derived assumptions that each of us has accumulated as human

beings, and because each of us is differently situated, there are different perspectives on

objects and events and thus differing content to our knowledge of them. Knowledge is

thus conceived by postmodernists as always contingent, always dependent on context,

and always "local" rather than "universal," as it is so often assumed to be. This results in

the charge that postmodernists are relativists--that is, that postmodernists hold that the

content of knowledge varies according to the framework, perspective, and circumstances

of the observer.4

3 This includes the basic jurisprudential schools of legal positivism, natural law, and legal process, but not

legal realism, which was in vogue in the 1920s and '30s and which has a close affinity with postmodern

jurisprudence, as taken from Peter C. Schanck, Understanding Postmodern Thought And Its Implications

For Statutory Interpretation, 65 S. Cal. L. Rev. 2505 (The theoretical bases of postmodernism have been

borrowed from this article, and relevant sections have been footnoted accordingly)4 Pauline M. Rosenau, Postmodernism And The Social Sciences: Insights, Inroads, And Intrusions, as cited

in Peter C. Schanck, supra n. 3


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Postmodern theory may be divided into two major strains: poststructuralism and

neopragmatism. The first tends to emphasize the role of language and language's

underlying structures in shaping our understandings of reality and texts, and it is

represented principally by such French theorists as Roland Barthes, Jean Baudrillard,

Jacques Derrida, Jacques Lacan, and Jean-Franois Lyotard, although Baudrillard and

Lyotard can also be considered neopragmatists.5

The second strain, neopragmatism,

agrees with poststructuralism that language mediates our understanding of the world and

that we lack the ability to grasp reality "as it really is,"6

but neopragmatism emphasizes

the social construction of knowledge and language. Its leading figures are Richard Rorty

and Stanley Fish.7

There is another conception of postmodernism, which is referred to variously as thepostmodern condition, the postmodern age, or postmodernity,and forms the basis of the

researchers endeavour to locate a postmodern jurisprudence. It is used to convey the idea

that the present world is fundamentally different from previous historical periods, that life

today-- compared with the modern era--is seriously uncertain, fragmented, disjointed,

incoherent, uncentered, pluralistic,8

and that the master narratives that once structured our

lives are absent9

or, that postmodern society is in thrall to multinational capitalism in

contrast to the monopoly capitalism of the modern age.10

It is here that the question of justice arises. For, if there is no universal truth, can there

indeed be a universally true and objective justice? If there is, is it accessible to all? Does

5 Christopher Norris, for one, lumps Baudrillard and Lyotard in with pragmatists Rorty and Fish.

CHRISTOPHER NORRIS, Introduction to What's Wrong With Postmodernism: Critical Theory And The

Ends Of Philosophy , as cited in supra n. 36

Supra n. 37 Id.8 Walter Truett Anderson, Reality Isn't What It Used To Be: Theatrical Politics, Ready-To-Wear Religion,

Global Myths, Primitive Chic, And Other Wonders Of The Postmodern World (1990), as cited in supra n. 39 Jean-Francois Lyotard, The Postmodern Condition: A Report On Knowledge (Geoff Bennington & Brian

Massumi trans., 1984)10 Fredric Jameson, Postmodernism, Or The Cultural Logic Of Late Capitalism, 35-36 (1991). In Jameson's

view postmodernism is the unfortunate cultural manifestation of multinational capitalism, as cited in supra

n. 3


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a constitutional guarantee and a judiciarys affirmation of the same necessarily do justice

to all concerned?

It is while searching for these questions that one first stumbles upon the issue of judicial

activism. Is not judicial activism a universally recognized method of legal enunciation, of

stepping beyond legislative limits and constitutional provisions that seem inscribed upon

stone? Does it not seek to keep the constitutional process fluid, to hone legal provisions

according to changing standards? Where then is the notion of a universal concept of

liberty if it was a paramount consideration in the minds of the judges while deciding

cases in the 1950s, but is now subject to economic development of the country at large?

It is easy to discern that judicial activism is not to ensure compliance with objective,

universal truths, but to mould such truths according to changing morays. And if such aneffort is conscious, then it is also necessarily subjective, for such an effort can only be

made if one actively perceives the need to remodel old conceptions of such universal

truths, if one is aware that a different generation requires a different conception of liberty,

equality and fairness.

In India, the zenith of judicial activism was witnessed in the enunciation of the basic

structure doctrine. The judiciary for the first time violated the basic principle of

separation of powers to decide to what extent the constitution could be amended, and

specifically whether any of the fundamental rights could be done away with. In doing so,

it decided the question of the parliaments power of constitutional amendment. It was an

approach that strikes at a well established, modernist principle of legislative supremacy in

the legislative sphere, and clear delimitation between judicial and legislative spheres. It

was based on a perception of the political instability of the period in which it was

enunciated, and was thus far from objective.

Yet, ironically, the doctrine itself is essentially modernist in character. It sets out a grand

narrative based on the overriding perpetuity of the principles they proposed. It

presupposes that certain principles are universal to human existence and dignity, and may

not be challenged. And yet, there are spaces where gaps may be filled in. If equality

under Article 14 of the Constitution is part of the Basic Structure, well and good. But the


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precise content of such equality is always open to change, to discourse and to judicial

opinion.

There is thus an intermingling of both elements of modernity and post-modernity within

the Indian judicial scenario. How they have evolved and where exactly they stand is what

needs to be understood.

AN EXERCISE IN LOCATING POSTMODERN ELEMENTS:TEAGUE V.LANE11

Teague v. Lane was an American case in which the Supreme Court has focused on the

issue of whether constitutional rules should apply retroactively in habeas cases.12

As

argued by Stephen M Feldman13

, the deconstruction of the Teague rule demonstrates,

therefore, how a postmodern approach can disturb the assumptions and reveal the

instabilities hidden within a Court's modernist reasoning. Furthermore, this

deconstruction concludes with a typical postmodern theme: a focus on the relation

between power and language.14

Teague v. Lane, decided in 1989, arose from a state prosecution of an African-American

defendant. The defendant, Teague, petitioned for habeas relief, arguing that the all-white

jury which had convicted him did not represent a fair cross section of the community. In

1975, Taylor v. Louisiana15 had held that the Sixth Amendment required a jury venire to

be drawn from a fair cross section, and Teague maintained that the Sixth Amendment

should be held to require the same of a petit jury. In rejecting Teague's habeas petition,

the Court held that it should not even reach the merits of his constitutional claim.

11Teague v. Lane 489 U.S. 288 (1989)12

Wright v. West, 112 S. Ct. 2482 (1992); Stringer v. Black, 112 S. Ct. 1130 (1992); Sawyer v. Smith, 497U.S. 227 (1990); Saffle v. Parks, 494 U.S. 484 (1990); Butler v. McKellar, 494 U.S. 407 (1990); Penry v.

Lynaugh, 492 U.S. 302 (1989)13 Professor of Law, University of Tulsa, in Diagnosing Power: Postmodernism In Legal Scholarship And

Judicial Practice (With An Emphasis On The Teague Rule Against New Rules In Habeas Corpus Cases),

88 Nw. U. L. Rev. 104614 Feldman S. M, The Persistence of Power and the Struggle for Dialogic Standards in Postmodern

Constitutional Jurisprudence: Michelman, Habermas, and Civic Republicanism, 81 GEO. L.J. 2243 (1993)15Taylor v. Louisiana 419 U.S. 522 (1975)


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The judgment16

:

The Teague plurality opinion articulated two important points. First, it stated that

the question of retroactivity should be the threshold issue in any case which mightrequire the Court to announce or apply a new rule of constitutional law. The plurality

justified this approach by reasoning that "once a new rule is applied to the defendant in

the case announcing the rule, evenhanded justice requires that it be applied retroactivelyto all who are similarly situated." Since the announcement of a new rule would lead,

according to this reasoning, to the supposedly drastic consequence of retroactive

application to anyone seeking either direct or habeas relief, the plurality insisted that theissue of retroactivity should be resolved first.

Second, the plurality, following Justice Harlan, pronounced a general rule: " New

constitutional rules of criminal procedure will not be applicable to those cases which

have become final before the new rules are announced." And the Teague pluralityidentified two exceptions to this general rule. First, "a new rule should be applied

retroactively if it places 'certain kinds of primary, private individual conduct beyond thepower of the criminal law-making authority."' Second, retroactive application should be

allowed for new "watershed rules of criminal procedure," or in other words, for "those

new procedures without which the likelihood of an accurate conviction is seriouslydiminished." While the Teague plurality and Harlan shared identical first exceptions,

their second exceptions differed-the plurality's second exception was significantly

narrower.

Teague effectively created a rule against new rules in habeas cases. As the plurality

stated:

We therefore hold that, implicit in the retroactivity approach we adopt today, is the

principle that habeas corpus cannot be used as a vehicle to create new constitutional

rules of criminal procedure unless those rules would be applied retroactively to all

defendants on collateral review through one of the two exceptions we have articulated.

What this essentially implies is that wherever the petitioner demands that a new rule17

in constitutional law be considered by the court, the court is under no obligation to

consider it if the judgment in the instant case is already final, provided the case does not

fall under any of the exceptions mentioned above. As a further example, in Butler v.

16 As quoted from Feldman S.M, supra n. 1317 [I]n general, a case announces a "new rule" when it breaks new ground or imposes a new obligation on

the States or the Federal Government. Put differently, and, indeed, more meaningfully for the majority of

cases, a decision announces a new rule "'if the result was not dictated by precedent existing at the time the

defendant's conviction became final.",Butler v. McKellar 494 U.S. 407 (1990)


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McKellar18

, decided in 1990, the Court interpreted broadly the ambiguous Teague

guidelines for the identification of new rules. In a state prosecution, Butler had been

convicted of murder and sentenced to death. He had appealed to the highest state court

and then had petitioned the United States Supreme Court for certiorari. When the Court

denied certiorari, Butler's conviction became final. Butler subsequently filed a habeas

petition in federal district court, claiming that he had been unconstitutionally questioned

about the murder after retaining counsel for an unrelated charge of assault and battery.

After Butler had filed his habeas petition, the Court decided a different case, Arizona v.

Roberson, which "held ... that the Fifth Amendment bars police-initiated interrogation

following a suspect's request for counsel in the context of a separate investigation." Thus,

Roberson effectively vindicated the exact constitutional claim that Butler raised in hishabeas petition. Nonetheless, the Court held that to apply the Roberson holding to Butler

would amount to the application of a new rule of constitutional law after Butler's

conviction already had become final on direct review. Thus, following the Teague rule

against new rules, the Court refused to reach the merits of Butler's habeas claim.19

The postmodern analysis:

This portion has been adapted from Feldmans work as cited above, and consequently the

approach adopted in deconstructing the above case is the same as that of the learned

scholar, namely, philosophical hermeneutics. Philosophical hermeneutics basically states

that there is no objective mechanical interpretation of a given text, and even that text in

itself is not merely an object ready to be interpreted. The text is merely what we interpret

it to be. It has no independent existence, save the interpretation of the reader. However,

such interpretation in itself may not be subjective or arbitrary. The reader (or interpreter)

is never an independent and autonomous subject who freely or arbitrarily imposes

meaning on a text.20

One's life within a community and its traditions necessarily limits

18Butler v. McKellar 494 U.S. 407 (1990).19 Supra n. 1320 Id, as taken from Jacques Derrida, Positions (Alan Bass trans., 1981), given in n. 6 of the cited article in

note 13


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one's range of vision-what one can possibly see or understand in a text. As Gadamer

says, the traditions of one's community help to shape the interpreter's horizon: the

range of vision that includes everything that can be seen from a particular vantage

point.21 Therefore, a judge constantly, while consciously bound by rules of precedent, is

actually bound by principles of tradition of legal maxims and his own morays and those

of his community. The interpretative process is not merely objective and rule-bound. The

objectivity flows from the relativity of the text to the subjectivity of community-rules and

standards, and social and political contexts.

A crucial element of philosophical hermeneutics is the recognition that although

communal traditions and the concomitant prejudices constrain our possibilities for

understanding, they simultaneously enable us to communicate and to understand. Ourtraditions, prejudices, and interests actually open us to meaning, understanding, and

truth.22

Moving on, the Teague ratio implies that the retrospective application of a constitutional

rule should depend on whether that rule is new or old. However, on an application of

hermeneutic philosophy, it is easily concluded that every rule is both simultaneously old

and new. Every rule is new because each time we apply it, we must interpret and thus

reconstruct it (as well as tradition), yet simultaneously every rule is old because each rule

emerges only from our already existing prejudices and traditions.23

The rule in Teague v.

Lane, as laid down is strikingly modern, strikingly foundationalist i.e. it clearly states that

there are old rules in existence, which must be given effect to without thought or

meditation, and then there are new rules, products of judicial creativity and constitutional

interpretation. A legal rule, from this modernist perspective, is a normative guide

expressed in a text, such as a case precedent, that mandates or influences judicial action.

Teague assumes that such a rule has a fixed and stable meaning that firmly grounds

understanding. Thus, a court, at least sometimes, is able to implement some technique or

21 Gadamer, Hermeneutics, Tradition, And Reason (1987), as cited in Feldman, supra n. 1322 Stanley Fish, Dennis Martinez and the Uses of Theory, 96 YALE L.J. 1773, 1795 (1987) , as cited in

supra n. 1323 Supra n. 13


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method whereby it mechanically and objectively understands and applies the rule to a

new case.24

Hermeneutics disputes this foundationalist reasoning. It argues that experience,

perception, and understanding are interpretive, and not original or new and thus no

mechanical technique or method can directly access the meaning of a rule. Legal rules

therefore have no independent meaning which stands crystal clear and is understood

objectively, or rather mechanically. Rather, all legal texts are understood through a sum

of experience, understanding, and interpretation based on the previous two. Moreover,

the meaning of a legal rule comes into being only because communal traditions and our

derived prejudices and interests open us to the truth or meaning of the rule.25

For example, the word mantra was used very differently say, even a century ago. Now itimplies a chant, a formula, more synonymous with the western concept of a formula for

invoking success as distinguished from its perhaps original use as a word for an

invocation or a sacred rite. These different interpretations do not symbolize two different

interpretations, one new and one old. They are merely two different interpretations based

on usage, intermingling of different cultures and of different lifestyles.

Hence, every legal rule is, in an important sense, always old. Each time we apply a legal

rule, we necessarily draw upon and extend our communal traditions. Every legal rule

emerges as a manifestation of tradition, of what came before, of the old. Simultaneously,

however, every legal rule also is, in an important sense, always new. The meaning of a

legal rule comes into being anew each time we understand, interpret, and apply it. No

legal rule exists apart from the social practices that constantly create and recreate it.

In the Teabing case, the old rules of retrospective application and habeas corpus have

been interpreted differently, drawing upon existing rules and combined with it a

deference towards, in this case, the decision of the lower courts. On a simple application

of hermeneutics, the judgment seems to appear in an entirely different light. Once the

judgment is deconstructed the ratio, the new law laid down by the U.S Supreme Court

24 Id.25 Id.


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does not seem to be the new aspect of the case.26

What was new was the Supreme

Courts deference to a lower courts judgment save the two exceptions they noted above.

THE BASIC STRUCTURE DOCTRINE.

In a watershed decision in Keshavananda Bharati v. State of Kerala27

, the Indian

Supreme Court decided in a thirteen bench judgment that the sovereign legislature, who

were otherwise possessed of otherwise plenary power to amend the Constitution, could

not alter the basic structure of the Constitution.28

The case represents the high point of

judicial innovation and alters the very basis on which constitutional power is divided

between the plenary amendatory bodies and the judiciary.29

The evolution towards a Basic Structure.

26Brown v. Board of Education 347 U.S. 483 (1954)., decided in 1954, illustrates the instability of the

Teague Court's claimed distinction between new and old rules of constitutional law. Brown is renowned for

overturning the rule of Plessy v. Ferguson that "separate but equal" public facilities for whites and African-

Americans were constitutional under the Equal Protection Clause of the Fourteenth Amendment. A

unanimous Court in Brown wrote: "Separate educational facilities are inherently unequal." Thus, many

commentators would agree, Brown stands as a prototypical example of a case that announces a new rule of

constitutional law.

Brown should be understood as the culmination of a long social and legal crusade to destroy the "separate

but equal" doctrine. Indeed, some have insisted that by 1954, the Brown decision was nearly inevitable and

thus quite unremarkable in terms of legal doctrine. The NAACP orchestrated a sustained (though perhaps

unsystematic) campaign that built slowly but steadily on the already existing tradition of equal protection

until the "separate but equal" doctrine appeared facially indefensible. In particular, the NAACP initially

accepted the existence of separate facilities, but challenged the inequalities between the black and white

institutions. A series of cases following this tactic eventually revealed the incoherence of the "separate but

equal" doctrine: separate facilities never could be fully equal.

The Court's first important step was to question seriously whether separate state institutions were equal, and

its second step was to consider intangible factors when determining equality. In the context of the

pervasive racism of America, the reputation and prestige of separate black and white facilities never could

be equal. Thus, even Brown-the prototype of a Supreme Court case announcing a new rule of

constitutional law-can be fairly characterized as merely articulating or even rephrasing an obvious, alreadyexisting, or old rule.

As taken from Diagnosing Power: Postmodernism In Legal Scholarship And Judicial Practice (With An

Emphasis On The Teague Rule Against New Rules In Habeas Corpus Cases), 88 Nw. U. L. Rev. 1046.

27Keshavananda Bharati v. State of Kerala AIR 1973 SC 146128 Ramachandran, R., The Supreme Court and the Basic Structure Doctrine, Supreme But not Infallible, Ed.By BN Kirpal, AH Desai, Gopal Subramaniam et al, Oxford India Paperbacks, Delhi, 200629 Id.


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The first goal while trying to reconstruct the basic structure doctrine would be to take a

brief view on the constitutional history that led to the doctrine itself.

In Shankari Prasad v. Union of India30, the Supreme Court considered whether an

amendment is law under Article 13(2) of the Constitution. The Court held that there

was a clear distinction between ordinary law and an amendment made in the exercise of

constituent power. Thereafter, the Constitution (Seventeenth Amendment) Act, 1964

came to be challenged in the Sajjan Singh31

case. The majority affirmed the judgment of

Shankari Prasad, with two notable dissenting decisions. Justice Hidayatullah in his

dissenting judgment said, in an ominous tone that while restricting fundamental rights

under the restrictions imposed in Article 19 was one thing, removing them from theConstitution itself was totally different.

32

Justice Mudholkar, while agreeing with the majority on the validity of the Seventeenth

Amendment, said that the law laid down in Shankari Prasadwas not the last word on the

parliaments amending power. He said:

The Constituent Assembly..formulated a solemn and dignified preamble which

appears to be an epitome of the basic features of the Constitution. Can it not be said that

these [written constitution, executive responsibility to Parliament, federal structure, clear

distribution of powers, fundamental rights etc.] are indica of the intention of the

Constitution framers to give a permanency to the basic features of the Constitution?33

The first indication of the judiciarys wariness with the political milieu of that time came

with the Golaknath34

judgment. Nehru had died in 1964, two months prior to the decision

in Sajjan Singh. Indira Gandhi had already been installed as the Prime Minister. Though

those were the early days of her leadership, not yet characterized by the authoritative

30Shankari Prasad v. Union of India (1952) SCR 8931Sajjan Singh v. State of Rajasthan (1965) 1 SCR 93332 Supra n. 2833 Supra n. 31, at para 57, as taken from The Supreme Court and the Basic Structure Doctrine, infra n. 2834IC Golaknath v. State of Punjab Air 1967 SC 1643


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streak that characterized her leadership later on, the fact that she was Nehrus daughter,

and that there was a dynasty in the making, must have troubled the judiciary.35

The court considered the validity of the Seventeenth Amendment, therefore necessarily

the First and the Fourth, and held them to be invalid, though with prospective

application.36

The Court held that Article 368 of the Constitution did not confer the

power to amend the Constitution. It merely prescribed the procedure to do so. An

amendment was therefore a legislative process and was therefore law within the meaning

of Article 13. An amendment would therefore be void if it took away or abridged

fundamental rights.

Soon however, Mrs. Gandhi came into her own. The end of the Nehru years and theascendancy of Indira Gandhi brought about a new power dynamic between the executive

and the judiciary: one of open confrontationalism, and one in which the judiciary

increasingly had the upper hand. None would illustrate this point better than the

Golaknath37

Case, followed by the Bharti case. Of course, important issues of

constitutional governance underlay this attitude of confrontation, namely, individual

rights against the increasing societal need for a social revolution. To achieve these goals,

central authority became more concentrated, and more autocratic. In the end, it attacked

the judiciary for greater power and unlimited authority to bring about its proposed

objective of social revolution.

Pursuant to the Bank Nationalization case38

and the Privy Purses Case39

, in 1971 the

Constitution (Twenty Fourth) Amendment Act was passed which brought about the

necessary changes in both Article 13 and Article 368.40

Article 13(4) now said that an amendment was not law for the purpose of Article 13(2) of

the Constitution. Article 368 now provided, Notwithstanding anything in this

35 Supra n. 28. Also see Granville Austin, The Indian Constitution: Cornerstone of a Nation, Clarendon

Press, Oxford, 1966, and The Working of a Democratic Constitution by the same author.36 Id.37 Supra Note 11

38RC Cooper v. Union of India (1970) 1 SCC 24839Madhavrao Scindia v. Union of India (1971) 1 SCC 8540 Supra n. 35


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Constitution, Parliament may, in exercise of its constituent power amend by way of

addition, variation or repeal any provision of this Constitution in accordance with the

procedure laid down in this article.41

The Keshavananda Judgment.

The judgment in Keshavananda was delivered by a narrow majority of seven is to six,

Justice Khannas judgment tilting the balance in favour of the majority. Only nine out of

the thirteen judges signed what has since been accepted as the Courts view. The Court

dealt with the Twenty Fourth amendment, and also two others. The Following has been

accepted as the courts judgment:

1. Golak Naths case is overruled;

2. Article 368 does not enable the Parliament to alter the basic structure or the

framework of the Constitution;

3. The Twenty Fourth Amendment Act is valid42

Though the judgment overruled Golaknath, it ensured once and for all that the final say

with respect to the validity of an amendment to the constitution rested with the judiciary.

While the judgment in Golaknath was specific to abridgment of fundamental rights, the

Keshavananda judgment declared that the court now had the power to scrutinize any

amendment43

to see if it violated the basic structure.

Most judges had differing perceptions of what the basic structure constituted. Chief

Justice Sikri spoke about the supremacy of the Constitution, republican and democratic

41 Supra n. 2842 Id.43 Id.


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form of government, separation of powers, federal character, based on the dignity and

freedom of the individual. CJ Sikri however, did not mention that his list was

illustrative.44

Justice Shelat did mention that the list was illustrative, while additionally

mentioning sovereignty, unity and integrity of the nation and Part III of the Constitution

to be parts of the Basic Structure.45

Justice Jagamohan Reddy basically concurred with CJ

Sikris judgment.

Justice Khannas views were slightly different. He stated that the Parliaments power of

amendment did not extend to abrogating the very Constitution and replacing it with a new

one. He therefore observed that the basic structure or framework of the Constitution

could not be destroyed.46

Since the formulation of the doctrine of the Basic structure, the Indian Supreme Court has

repeatedly struck down amendments on the premise that they violate the basic structure

of the Constitution.47

Though the Basic Structure was initially meant to scrutinize

amendments to the Constitution, the Court has lately started holding even ordinary

legislations invalid when measured by the yardstick of the Basic Structure doctrine.48

Even other countries in South Asia have relied on the doctrine to hold amendments and

legislations invalid.49

THE BASIC STRUCTURE CRITIQUE:ACONCLUSION

For the purposes of this portion, the researcher seeks to draw an analogy between the old

rule- new rule proposition analyzed in the previous portions of this paper. It is argued

that the Basic Structure doctrine was not a brand new grand narrative based on

44 Id.45 Id.46

Id.47 SeeIndira Nehru Gandhi v. Raj Narain (1975) 1 Supp SCC 1, Minerva Mills v. Union of India (1980) 3

SCC 85, Waman Rao v. Union of India (1981) 2 SCC 36248Ismail Faruqui v. Union of India (1994) 6 SCC 360, G.C Kanungo v. State of Orissa (1995) 5 SCC 9649 Bangladesh Supreme Court inAnwar Hussain Chowdhary v Bangladesh 1989 Bangladesh Law

Documents (Spl) 1; in Pakistan,Darwesh Arbey v Federation of Pakistan All Pakistan Law Decisions(1908) Lahore 206 and Suleiman v. President, Special Military CourtAll Pakistan Law Decisions (1996)Supreme Court 367; in Sri Lanka inIn Re the Thirteenth Amendment to the Constitution (1987) 2 Sri Lanka

Law Reports 312.


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foundationalist notions of constitutional theory, but a culmination of the traditional and

legal patterns that had emerged from the very inception of our constitution. The first step

towards such an understanding is to identify what the basic structure doctrine essentially

states.

The doctrine puts certain limitations on the constituent power of amendment, based on

the premise that there is an essential, non-derogable, inalienable framework to our

constitution. The doctrine states that there are certain features present in our constitution,

essential to its framework, and they therefore cannot be eroded or abridged, even through

the constituent power of the Parliament. Among other reasons, one reason put forward is

that the constitution framers intended that there be certain inalienable features whichform the basic framework of our constitution, and to amend such features would be akin

to tampering with the socio-political set up the constitution framers sought to create. But

what are these basic features?

CJ Sikri spoke about the supremacy of the Constitution. But what constitutes the

supremacy of the Constitution is what the judiciary interprets it to be. It is not a static

element. Then again, before, during or after, supremacy over the constitution was never

sought to be asserted. What was asserted was the power to amend the constitution. He

also talked about a democratic form of government, of the scheme of separation of

powers as being the bedrock of our constitution. His observation is essentially

foundationalist, setting out a grand, objective scheme which cannot be amended.

Additionally, sovereignty, a secular polity, federal, democratic and republican in

character was held to be a part of the basic structure.

With respect to sovereignty specifically, it is humbly stated that it need not be stated that

sovereignty is a basic feature of the Constitution. A constitution cannot exist without a

nation or the will of its people being sovereign. Upendra Baxi argues that there are

certain facets of a constitution which are never the subject of constitutional discourse, one

of them being territorial sovereignty, others being the will to defend a nations political

existence with coercive power, the institutions and apparatuses of governance etc. These


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are outside the scheme of constitutional discourse. The subject matter of

constitutionalism is therefore the substantive rights, duties and obligations of state

organizations, individuals etc. Even a discourse based on these has to be confined within

the limits of the wider boundary of such apparatuses.50 Therefore, to say that sovereignty

is a basic structure of the constitution seems to the researcher, superfluous.

The other features within the ambit of the doctrine, it is argued, were not given their

precise content and definition prior to the basic structure doctrine, but instead after it.

Indeed the content of the basic features of the Constitution have been so greatly enlarged,

hardly anything is left outside the scope of the doctrine.51

Applying Hermeneutics.

The first problem to be considered while applying philosophical hermeneutics to the

Basic Structure doctrine, is that the most ardent critics of the judgment have consistently

argued that there was never any indication during the framing of the Constitution of a

basic structure nor of the consequent limitations put on the Parliaments amending power.

The Supreme Court on the other hand argued that its judgment did in fact have firm roots

in the constitutional process of the country. Therefore, while the judges said that the

doctrine is not a new rule, its critics argued that it is, in direct opposition to the Teague

case.

The Court was however, only seeking to justify its decision from precedent, and from the

historical processes that formed the Constitution. Its aim in doing so was to set a static,

unchangeable rule of a basic structure. In doing so, it was a foundationalist to the core.

On a closer look however, the basic structure is nothing without the constituent features

making it up. It is nothing but a restatement of the constitutional set up already existing; a

50 Baxi, U, The (Im)possibility of Constitutional Justice, Indias Living Constitution, Ed. By Zoya Hasan,E. Sridarshan, R. Sudarshan, Permanent Black, Delhi, 200251 Supra n. 48 & 49


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objective reasoning and interpretation, but because the Supreme Court had the power

over the Government of the day to do so.

In the Teague case, Judge William Rehnquist did not necessarily exercise his

extraordinary power over Butler because of the former's judicial expertise, his clever use

of legal rhetoric, or his ability (or inability) to distinguish new from old rules. Rather,

Rehnquist exercised power because he performed his role within judicial practice. That

is, Rehnquist performed as Chief Justice of the Supreme Court, which is a relatively

embedded and ongoing social position situated within an institutional framework and

web of social relationships (which in part constitute the role of Chief Justice as a

dominant position imbued with an exceptional amount of power). When Rehnquist

concludes that Butler had sought the application of a new rule, Rehnquist's written wordsimplement power.

54

In the same way, the words of the seven majority judges are not expressions of a

foundationalist doctrine, but of the assertion of its institutional power. The judges merely

exercised and asserted their position of dominance to ensure that the judiciary remains

the final and sole authority to interpret the Constitution.

Observed from this perspective, different textures are added on to the doctrine of Basic

Structure. It may be a grand foundationalist doctrine, but the reason and the processes

that formed it are very postmodern. Even the way the doctrine has been used and

interpreted, remains essentially postmodern. The Court held in Keshavananda that

secularism was a basic feature of our constitution. However, in S.R. Bommai v. State of

Karnataka55, while holding secularism to be a basic feature of the constitution, the court

held it to justify the imposition of emergency under Article 356.

So the Basic structure doctrine may have set out to give the Constitution an element of

rigidity or permanence. What it has achieved in doing is making Constitutional

provisions more dynamic, more open to differing interpretations with a change in time,

54 Id.55


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and of course ensuring that the task of such interpretation rests with the Supreme Court.

That is, to sum up, the only permanent aspect of the Basic Structure doctrine.

You will find that many of our truths depend on our point of view.

- Yoda in Return of the Jedi56

56 RETURN OF THE JEDI (Twentieth Century Fox 1983)


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BIBLIOGRAPHY

Statutes and related Documents:

1. The Constitution of India, 1950

Articles and Reviews:

1. S.M. Feldman, Diagnosing Power: Postmodernism In Legal Scholarship AndJudicial Practice (With An Emphasis On The Teague Rule Against New Rules

In Habeas Corpus Cases), 88 Nw. U. L. Rev. 1046 .......................................... 6

2. S. M Feldman, The Persistence of Power and the Struggle for DialogicStandards in Postmodern Constitutional Jurisprudence: Michelman,Habermas, and Civic Republicanism, 81 GEO. L.J. 2243 (1993) .................... 6

3. J.M. Balkin, What Is A Postmodern Constitutionalism?, 90 Mich. L. Rev.1966 ................................................................................................................... 2

4. Ken Kress,MODERN JURISPRUDENCE,POSTMODERN JURISPRUDENCE,ANDTRUTH,95 Mich. L. Rev. 1871 .......................................................................... 2

5. Peter C. Schanck, Understanding Postmodern Thought And Its ImplicationsFor Statutory Interpretation, 65 S. Cal. L. Rev. 2505 ....................................... 36. Stanley Fish, Dennis Martinez and the Uses of Theory, 96 YALE L.J. 1773,

1795 (1987......................................................................................................... 9

7. G. Alan Tarr, Understanding State Constitutions, 65 Temp. L. Rev. 11698. Ruti Teitel, Comparative Constitutional Law In A Global Age, 117 Harv. L.

Rev. 2570

9.

Linda R. Hirshman, Postmodern Jurisprudence And The Problem OfAdministrative Discretion, 82 Nw. U. L. Rev. 646


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Books and related works:

Indias Living Constitution, Ed. By Zoya Hasan, E. Sridarshan, R. Sudarshan,Permanent Black, Delhi, 2002............................................................................... 17

David Harvey, The Condition Of Postmodernity: An Enquiry Into The OriginsOf Cultural Change (1989) ...................................................................................... 2

Fredric Jameson, Postmodernism, Or The Cultural Logic Of Late Capitalism, 35-36 (1991) ................................................................................................................. 4

Fredric Jameson, Postmodernism, Or, The Cultural Logic Of Late Capitalism(1991........................................................................................................................ 2

Gadamer, Hermeneutics, Tradition, And Reason (1987) ........................................ 9 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Clarendon

Press, Oxford, 1966 ............................................................................................... 13

Jacques Derrida, Positions (Alan Bass trans., 1981) ............................................... 9 Jean-Francois Lyotard, The Postmodern Condition: A Report On Knowledge

(Geoff Bennington & Brian Massumi trans., 1984) ............................................ 2, 4

Supreme But not Infallible, Ed. By BN Kirpal, AH Desai, Gopal Subramaniam etal, Oxford India Paperbacks, Delhi, 2006 ............................................................. 11

Walter Truett Anderson, Reality Isn't What It Used To Be: Theatrical Politics,Ready-To-Wear Religion, Global Myths, Primitive Chic, And Other Wonders OfThe Postmodern World (1990) ................................................................................ 4

TABLE OF

CASES

Foreign Judgments

1. Anwar Hussain Chowdhary v Bangladesh 1989 Bangladesh Law Documents(Spl) 1 .................................................................................................................... 15

2. Brown v. Board of Education 347 U.S. 483 (1954) .............................................. 113. Butler v. McKellar 494 U.S. 407 (1990) ............................................................ 7, 84. Butler v. McKellar, 494 U.S. 407 (1990) ................................................................ 65. Darwesh Arbey v Federation of Pakistan All Pakistan Law Decisions (1908)

Lahore 206............................................................................................................. 16

6. In Re the Thirteenth Amendment to the Constitution (1987) 2 Sri Lanka LawReports 312. .......................................................................................................... 16

7. Penry v. Lynaugh, 492 U.S. 302 (1989) .................................................................. 68. Saffle v. Parks, 494 U.S. 484 (1990) ....................................................................... 69. Sawyer v. Smith, 497 U.S. 227 (1990).................................................................... 610.Stringer v. Black, 112 S. Ct. 1130 (1992) ............................................................... 6


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11.Suleiman v. President, Special Military CourtAll Pakistan Law Decisions (1996)Supreme Court 367................................................................................................ 16

12.Taylor v. Louisiana 419 U.S. 522 (1975) ................................................................ 613.Teague v. Lane 489 U.S. 288 (1989) ...................................................................... 614.

Wright v. West, 112 S. Ct. 2482 (1992) .................................................................. 6

Indian Judgments

1. G.C Kanungo v. State of Orissa (1995) 5 SCC 96 ................................................ 152. IC Golaknath v. State of Punjab Air 1967 SC 1643 ............................................. 133. Indira Nehru Gandhi v. Raj Narain (1975) 1 Supp SCC 1 ................................... 154. Ismail Faruqui v. Union of India (1994) 6 SCC 360 ............................................ 155. Keshavananda Bharati v. State of Kerala AIR 1973 SC 1461 ............................. 116. Madhavrao Scindia v. Union of India (1971) 1 SCC 85 ....................................... 147.

Minerva Mills v. Union of India (1980) 3 SCC 85 ............................................... 158. RC Cooper v. Union of India (1970) 1 SCC 248 .................................................. 14

9. Sajjan Singh v. State of Rajasthan (1965) 1 SCR 933 .......................................... 1210.Shankari Prasad v. Union of India (1952) SCR 89 .............................................. 1211.Waman Rao v. Union of India (1981) 2 SCC 362 ................................................. 15

Constitutional Ism in India

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