The Conscience of the Indian Constitution

A hundred years scarce serve to form a state; an hour may lay it in the dust.-Byron

The longest Constitution laying out the system of governance of the largest democracy in the world was drafted after a series of intense debates and endless discussions over three years. The result was a document that systematically laid down the various laws of the land and the system of governance and polity of the world’s largest democracy. We owe the freedom we cherish today and the pride in belonging to a secular democratic republic to those thoughtful discourses a few decades ago.

The drafting of the Indian Constitution was done in a time marked by the emergence of former colonies as independent sovereign nations. It was a time when the ideas of communism and other political ideologies were more than just words on a page. It was a time that witnessed the rise and the fall of dictators and the emergence of new world powers. Even in the domestic picture, the people were united in the spirit of nationalism. Various social reformation movements were led, which disrupted the centuries-old notions of society and its structure. The members of the Constituent Assembly drew experiences from the global and internal political, social, and economic turmoil.

The idea was to base the Constitution on certain fundamental principles to ensure that our country survives through all the political challenges that may occur in the near future. Looking back, one can say with high confidence that the plan of the forefathers of our Constitution, despite a few hiccups, has succeeded in holding together the most diverse society in the world on a single thread. It was these fundamental principles that the judiciary interpreted as the Basic Structure of the Constitution.

Interestingly the basic structure doctrine has not been directly explained in our Constitution. On the contrary, this doctrine evolved through decades of judicial interpretation. The basic notion of this philosophy is to curtail the amending powers of the Parliament. The Parliament is given the authority to amend the Constitution under Article 368 of the same. The purpose behind granting such power is to allow the legislature to modify the constitutional provisions to keep pace with time.

The Supreme Court in the case of Keshavanda Bharati v. State of Kerala[1] held that the amending power granted under Art.368 of the Constitution is not an absolute power. The Parliament cannot amend certain principles that reflected the basic spirit and ethos of the Constitution. This was enunciated as the Basic Structure of the Constitution. The doctrine has substantially evolved by the judicial interpretation in the cases of S.R Bommai v. Union of India[2] and Smt. Indira Gandhi v. Raj Narain[3]. A few of these fundamental principles include democracy, equality, judicial review, and secularism. However, this doctrine is not free of criticisms. The common criticism is that the doctrine is without foundation in the language of the Constitution. It is argued that the phrase “basic structure” not mentioned anywhere in the Constitution.

Beyond its textual illegitimacy, its detractors also believe that the doctrine gives the judiciary the power to impose its philosophy on a democratically formed government, which former Union Minister Arun Jaitley once describes as the “tyranny of the unelected”. Unequivocally, some of this repression stems from the Supreme Court’s sometimes muddled understanding of what may be the fundamental framework of the Constitution. But rejecting the doctrine because the judiciary botches its use is akin to throwing the baby out with the bathwater. It is essential to distinguish constitutions and common laws. Interpreting one is always liable to be a controversial exercise. But that is the nature of our political design that the Court, as an independent body, is entrusted with the role of acting as the final interpreter of the Constitution, to translate.

In the words of Justice Robert H. Jackson of the US Supreme Court, this process involves writing abstract principles in “concrete constitutional orders.” It may well be the case that the doctrine of the basic structure comes from the abstract. But that means it hardly exists within the Constitution. For not only is the cannon of basic structure legally legitimate, since it is deeply rooted in the text and history of the Constitution, but it also has substantial moral value, in that it strengthens democracy by limiting the power of a majority government to undermine the central ideals of the Constitution[4]. It is a known fact that the Parliament of India under different party leaderships has tried to enact various Acts which the Court has held as ultra vires the Constitution. Thus it can be concluded that the Basic Structure Doctrine forms an integral part of Constitutional Law and Indian polity.

It is no secret that the ideals regarding the governance of the country have witnessed a paradigm shift. At the same time, it is no secret that ghosts of certain evils threaten to unravel every progress that our country has made since independence still haunts modern India. The Basic Structure Doctrine has anchored our nation to the fundamental principles for which the blood of millions once flowed through our streets. Our country is indeed facing testing times. The introduction of the Citizenship Amendment Act of 2019 has spiked communal tensions to an all-new high. Religion has, over time, been equated to nationalism opening the floodgates of social unrest and communal tensions.

It is the most concerning fact to know that even in desperate times, there are specific malicious forces that tend the communal fire. Our society is concerned with social divisions during a time when the humanitarian outlook matters the most. An egalitarian society, as envisioned by the Constitution makers, thus remains a distant dream. The Basic Structure Doctrine finds its greatest significance in being a shield to uphold the democratic and secular spirit that founded our country 73 years ago.

The doctrine reminds us of the aspirations of the forefathers of our Constitution and opens the door to a society that can be ideal as it ever can be. In these unprecedented times, the thought of a divided India bears greatly on the conscience of the Constitution. The need for unity has never been more significant, and the Basic Structure Doctrine upholds the tag which we associate to our beloved country with immense pride – Unity in Diversity.

[1] Keshavanda Bharati v. The State of Kerala,(1973) 4 SCC 225

[2] S.R Bommai v. Union of India,  ‎1994 AIR 1918.

[3] Smt. Indira Gandhi v. Raj Narain, Smt. Indira Nehru Gandhi v. Raj Narain , AIR 1975 SC 2299.

[4] Parthasarathy, S., 2020. Legitimacy Of The Basic Structure. [online] The Hindu. Available at: <; [Accessed 3 June 2020].

Kevin Davis from National University of Advanced Legal Studies, Kochi

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