Recently the comment made by the Vice President of India that the basic structure doctrine as expatiated by the Supreme Court in Keshavananda Bharti case[1] hinders the functioning of the Parliament, evoked a flurry of responses. What Keshavananda held was that Parliament can amend any part of the Constitution save the basic structure. Now when we ask ‘what is basic structure?’...
Recently the comment made by the Vice President of India that the basic structure doctrine as expatiated by the Supreme Court in Keshavananda Bharti case[1] hinders the functioning of the Parliament, evoked a flurry of responses. What Keshavananda held was that Parliament can amend any part of the Constitution save the basic structure. Now when we ask ‘what is basic structure?’ we get some answers- Independence of Judiciary, Rule of Law, Supremacy of the Constitution are some of the preeminent principles that constitute the basic structure which cannot be touched by the Parliament. But why is that it cannot be touched? Another answer which is swiftly provided is that Parliament is a body created by the Constitution and it has only the mandate of law-making as opposed to Constitution creation, thus such a body cannot override the source from which it has germinated. Rightly so, but these answers require to be substantiated.
Thinkers like Carl Schmitt, Abbey Sieyes and Dieter Conrad propounded the concept of Constituent Power. According to them ‘the people’ (an enigma or an abstraction- reference must be made to the preamble of the Constitution) have the power to decide the political form of their existence. In other words, the people had the power to decide as to how to they want to conduct their life in a political structure which indubitably included their power to decide the nature of their political structure. This is known as Constituent Power. This could be buttressed by referring to the Indian scenario. In India, the Constituent Assembly had the Constituent Power, in exercise of which the political form of the society was decided. The political structure was to rest on principles such as Democracy, Rule of Law, Judicial Review etc. ‘The people’ is not same as the new subjects of the Constitution. The People with political unity precede the Constitution.
The decision as to the political existence of the society can only be taken by the people which exercises the Constituent Power. Thus Constitution, according to Schmitt, is an assortment of basic political decisions. Resultantly, the basic structure of the Constitution is reflection of such political decisions which can only be taken by the people or colloquially speaking the Constituent Assembly.
Parliament is Constituted body created in exercise of Constituent power. What it does in exercise of its legislative power is that it creates Constitutional laws which are to supplement the Constitution. Thus Schmitt[2] holds-“That the constitution can be changed should not be taken to mean that the fundamental political decisions that constitute the substance of the constitution can be eliminated at any time by parliament and be replaced through some other decision. The German Reich cannot be transformed into an absolute monarchy or into a Soviet republic through a two-thirds majority decision of the Reichstag”
Further-“ All constitutionally constituted powers and competencies are based on the constitution-making power. However, it can never constitute itself in terms of The people, the nation, remains the origin of all political action, the source of all power, which expresses itself in continually new forms, producing from itself these ever renewing forms and organizations.”
It is to be stated that the Constituent Power vested in the People is unfettered in nature. In other words the People in its exercise can even choose to have a society wherein it will be governed by a dictator. While when a Constitution is created by basic political decisions, the details of such Constitution are left to be decided by the posterity and such details are manifested in form of Constitutional laws.
As the function of Parliament is to make Constitutional Laws, it can never touch the parts of the Constitution which reflect the basic political fact on which the society hangs. In contemporary times, what are these basic political decisions on which the existence of the society hangs is determined by the Judiciary, as it has done in multiple cases[3]. J.J Rousseau in his work contemplated the existence of a body called ‘the tribunate’ which was to protect the laws from the incursion made by the executive or the government[4].
Supreme Court of India in catena of judgement has held that Parliament in exercise of ordinary legislative power makes law (reference must be made to Art. 246) and in exercise of its constituent powers amends the constitution (reference must be made to Art. 368). This understanding could be assessed as erroneous reasons for which are provided hereinabove as Parliament being a constituted body always exercises constituted power. Thus what must be borne in mind before taking any step in the direction of reconsidering the Basic Structure, is that the Keshavanand Bharti judgement was nothing more than the manifestation of the nature of the Constituent Power and its relation with various constituted power and the intention of the framer of Constitution.
Views are personal.