On the 50th year of the basic structure doctrine that restricts the power of Parliament to alter the fundamental features of the Constitution, senior advocate Raju Ramachandran told The Indian Express the doctrine is the only safeguard against a majoritarian government.
Ramachandran, former Additional Solicitor General of India, was once a critic of the doctrine. Now a qualified critic, Ramachandran said changes to secularism, federalism and equality will be the next aspects tested against the basic structure doctrine.
Today, the basic structure doctrine, which I have earlier criticised on grounds of pure theory, is the only safeguard against amendments that could do away with the secular nature of the Constitution. Also, with politics becoming increasingly presidential in style, the doctrine could stand in the way of a wholesale switchover to a presidential form of government.
Why have your views changed?
You can call me a qualified chastened critic of the doctrine now. Let me explain that. In 2000, the era of strong majorities seemed to have decisively ended. So in that context, I felt that the days of brute majoritarianism were over. Major constitutional decisions and major constitutional questions would henceforth be settled only through consensus and so, 50 years after the Constitution, the country should be given an opportunity to put the lessons of economics and politics into practice by amending the Constitution in whatever way the political class thought of it.
But even then I had argued that the basic structure doctrine, in spite of its conceptual inelegance, had served a purpose in the context of the Emergency, Mrs [Indira] Gandhis election case. It reminded a still-fledgling democracy of the perils of brute majoritarianism and those days were over. But 23 years after that critique of mine, we seem to be back to the era of overwhelming majorities. And so it seems that that doctrine acts as a protection. And Im sure you will agree with me that 23 years is a long enough period in a persons life for him to say that hes lived a bit, hes learnt a bit.
Why do you say it is conceptually inelegant?
It is counter-majoritarian in nature and that power is exercised, after all, by unelected judges. That is something which the judges also need to caution themselves about and I must say, to their credit, considering the few instances where they have interfered, that this is at the back of their minds when they apply the doctrine. I use the word majoritarian in a different sense from how you would normally understand majoritarian. I mean the will of the people as broadly expressed through the people whom they vote into power. So considering that, the court has been very restrained and if the court takes the view that the independence of the judiciary and its powers of judicial review are non-negotiable, no one can seriously have a problem with it.
Even the governments criticism is that unelected judges exercise this power
Theres no doubt that its a judicial invention. And it does depend on the subjective perception by judges of what the basic structure could be. Even in the Kesavananda Bharati case, you notice that different judges, in their enumeration of basic features, had differences. But I must say 50 years down the line, the imperfections of the doctrine have not led to judges running amok.
After all, ultimately, the number of cases after Kesavananda Bharati where constitutional amendments have been struck down is only six. While in those 50 years, there have been about 76 amendments to the Constitution.
So it is not, firstly, that every amendment gets challenged. And even if it is challenged, it is not that the court freely applies this doctrine. And therefore, the apprehension that the political class is prevented from carrying out important changes which they think may have a popular backing, those apprehensions are not justified. Even those few instances where the court has intervened, lets remember, have been in the context of judicial review and independence of judiciary.
The basic of basics would be sovereignty, which would also then mean for instance, if theres an organisation like the European Unionif India were to be part of a regional economic union of that level, then there could be a challenge on the ground of sovereignty. Then, a republican form of government, as against a monarchy, would be basic. Secularism would be basic. Democracy would be basic.
But then a moot question would be, between a presidential form of government and a Westminster system, is there a major difference? I think there is, because our Constituent Assembly made a conscious choice in the context of the accountability of the executive. The parliamentary form afforded a greater degree of accountability on a day-to-day basis. So within the democratic system itself, parliamentary vs presidential can pose a problem and even, within the parliamentary system, suppose we move from the first-past-the-post system to a system of proportional representation, would that fail the basic structure test? Thats a moot question but I would think that these are some of the very broad basics.
What facets of the Constitution do you see being tested against the doctrine?
Now if you look at the challenge to the Citizenship Amendment Act, that would involve issues of equality and of secularism. If you look at the challenge to the watering down of Article 370, it would raise issues of federalism.
Read this article:
- Lebanese Pro-Federalism Activist Alfred Riachi: Prior To October 7, The Standard Of Living In Gaza Was Pretty ... - Middle East Media Research... - February 22nd, 2024 [February 22nd, 2024]
- The Potential Impact of 'Disease X' on Federalism in the U.S. - Medriva - February 22nd, 2024 [February 22nd, 2024]
- 'People's Charter' Puts Federalism at The Heart of Myanmar's Democratic Future - The Irrawaddy - February 22nd, 2024 [February 22nd, 2024]
- Siddaramaiah vs Modi: The 'cess-y' mess in fiscal federalism - Deccan Herald - February 22nd, 2024 [February 22nd, 2024]
- Ideas Of India: Devendra Fadnavis To Take A Deep Dive Into Role Of Collaborative Federalism In Nation-Building - ABP Live - February 22nd, 2024 [February 22nd, 2024]
- Potential of federalism should be realized: PM Dahal - The Himalayan Times - February 22nd, 2024 [February 22nd, 2024]
- Sensible education policy needed - The Kathmandu Post - October 9th, 2023 [October 9th, 2023]
- Both cooperative federalism and competitive federalism have their ... - Insights IAS - August 18th, 2023 [August 18th, 2023]
- Federalism to poll promises: South India CMs bring up host of local ... - South First - August 18th, 2023 [August 18th, 2023]
- Justice Mitchell (Alabama): "The New Bar Exam Puts DEI Over ... - Reason - May 20th, 2023 [May 20th, 2023]
- Season of instability - The Kathmandu Post - May 20th, 2023 [May 20th, 2023]
- Trump Indictment Tests Congress's Role in State Investigations - Bloomberg Law - May 20th, 2023 [May 20th, 2023]
- Big Business' New Plan Would Create Fifty New Immigration Policies - Federation for American Immigration Reform - May 20th, 2023 [May 20th, 2023]
- Senator decries move to block bill loosening Wisconsin abortion law - Milwaukee Journal Sentinel - May 20th, 2023 [May 20th, 2023]
- "Illegally buying time": Congress leader Abhishek Singhvi chastises ... - ANI News - May 20th, 2023 [May 20th, 2023]
- Baby Ninth Amendments Part IV: All the Rights but Not ALL the Rights - Reason - May 20th, 2023 [May 20th, 2023]
- Amid the Fight for Myanmar, Federalism Rises from the Grass Roots - United States Institute of Peace - May 18th, 2023 [May 18th, 2023]
- Lesson from Karnataka respect states and India's federalism - Deccan Herald - May 18th, 2023 [May 18th, 2023]
- Dr. Paul Nolette named director of Les Aspin Center for Government ... - Marquette Today - May 18th, 2023 [May 18th, 2023]
- Sen. Cramer Welcomes ND Witnesses, Discusses Water ... - Kevin Cramer - May 18th, 2023 [May 18th, 2023]
- Utilities, Transmission, and the Grid: An Interview with Ari Peskoe - Brown Political Review - May 18th, 2023 [May 18th, 2023]
- Six months after elections, provincial governments are still incomplete - The Kathmandu Post - May 18th, 2023 [May 18th, 2023]
- NON-FICTION: WHY FEDERALISM ENDURES IN PAKISTAN ... - DAWN.com - May 6th, 2023 [May 6th, 2023]
- Justice Scalia's Unpublished Dissent in Kelo v. City of New London - Reason - May 6th, 2023 [May 6th, 2023]
- Citizens, civil society hold the ruling party, BJP to account ... - SabrangIndia - May 6th, 2023 [May 6th, 2023]
- ED Proposes Title IX Athletics Rule Requiring Participation Based ... - The Federalist Society - May 6th, 2023 [May 6th, 2023]
- The Mysterious Case of the Imposition of Article 355 in Manipur - The Wire - May 6th, 2023 [May 6th, 2023]
- Non-BJP State Governments Not Exercising Accountability, Allowing ... - Daily Excelsior - May 6th, 2023 [May 6th, 2023]
- Two years of Stalin government in Tamil Nadu: Two steps forward - Times of India - May 6th, 2023 [May 6th, 2023]
- What is the issue of gubernatorial inaction in the legislative process ... - Insights IAS - April 29th, 2023 [April 29th, 2023]
- World Bank Approves $100 Million to Strengthen Nepal's Healthcare ... - ReliefWeb - April 29th, 2023 [April 29th, 2023]
- Canada's federal transfer payment system badly needs a tune-up - The Conversation - April 29th, 2023 [April 29th, 2023]
- Federalism - Definition, Examples, Cases, processes - Legal Dictionary - February 20th, 2023 [February 20th, 2023]
- What is federalism? | State Policy Network - February 5th, 2023 [February 5th, 2023]
- UPSC Key- January 19, 2023: Learn about Annual Status of Education Report, Federalism and State Legislatures - The Indian Express - January 19th, 2023 [January 19th, 2023]
- Advantages and Disadvantages of Federalism American Government - January 6th, 2023 [January 6th, 2023]
- fiscal federalism | public finance | Britannica - December 26th, 2022 [December 26th, 2022]
- About ALEC - American Legislative Exchange Council - December 12th, 2022 [December 12th, 2022]
- Canadian federalism - Wikipedia - November 23rd, 2022 [November 23rd, 2022]
- U.P. bags top honours at PMAY-U Awards 2021 - The Hindu - November 23rd, 2022 [November 23rd, 2022]
- Political Line sc views on conversions rajiv convicts and federalism and more - The Hindu - November 21st, 2022 [November 21st, 2022]
- Byron Williams: The court is poised to rewrite federalism - Winston-Salem Journal - October 17th, 2022 [October 17th, 2022]
- Why Hindi may set the tone for 2024 - Deccan Herald - October 17th, 2022 [October 17th, 2022]
- A Myanmar roadmap: Charting the path to federal democracy - International IDEA - October 17th, 2022 [October 17th, 2022]
- Next generation of reforms should focus on reducing cost of doing business - Economic Times - October 17th, 2022 [October 17th, 2022]
- Nigeria And The Intrigues Of Insecurity -By Kene Obiezu - Opinion Nigeria - October 17th, 2022 [October 17th, 2022]
- Trudeau's aggressive federalism may leave Ottawa weaker than before - The Globe and Mail - October 15th, 2022 [October 15th, 2022]
- What is Federalism? | CSF - October 15th, 2022 [October 15th, 2022]
- Kerala Against Hindi Imposition; Terms Recommendations Attack on Federalism and Diversity of Nation - NewsClick - October 15th, 2022 [October 15th, 2022]
- 2023: Well Vote for Candidate Committed to Federalism, Diversity, Says UPU - THISDAY Newspapers - October 15th, 2022 [October 15th, 2022]
- Attorney General Knudsen fights Biden administration rule requiring states to reach net-zero highway emissions - Montana Department of Justice - October 15th, 2022 [October 15th, 2022]
- How Scotland can learn from Quebec's third way on constitution - HeraldScotland - October 15th, 2022 [October 15th, 2022]
- Federalism and Why Presidents Fail - THISDAY Newspapers - September 22nd, 2022 [September 22nd, 2022]
- Vedanta and the missing spirit of federalism - The New Indian Express - September 22nd, 2022 [September 22nd, 2022]
- Federalism Most Suited Idea For India In View Of Its Diversity, Centralising Whole Things Will Lead To... - Live Law - Indian Legal News - September 22nd, 2022 [September 22nd, 2022]
- Urging the Use of One Federal Decision Rule to Speed Up Bipartisan Infrastructure Law Projects - Kevin Cramer - September 22nd, 2022 [September 22nd, 2022]
- Constitution Day 2022: Celebrating the right to govern ourselves - Yellowhammer News - September 22nd, 2022 [September 22nd, 2022]
- From Augusta Constitution Day: What does it mean to you? - Press Herald - September 22nd, 2022 [September 22nd, 2022]
- Explained | The office of the Governor: its origins, powers, and controversies - The Hindu - September 22nd, 2022 [September 22nd, 2022]
- Geography Professional Speaker Series kicks off with alumnus from Ohio EPA on Sept. 23 - Ohio University - September 22nd, 2022 [September 22nd, 2022]
- Vector-borne diseases trouble Nepal every year as there is not a single entomologist - Online Khabar (English) - September 22nd, 2022 [September 22nd, 2022]
- The Gujarat factor in the development project - Hindustan Times - September 22nd, 2022 [September 22nd, 2022]
- The downslide in federal relations - The Indian Express - September 22nd, 2022 [September 22nd, 2022]
- Competition between states to attract investment will boost Indias economy - Moneycontrol - September 22nd, 2022 [September 22nd, 2022]
- For state of the nation, look at states of the nation: Niti Aayogs new chief says it will help states learn - Times of India - September 22nd, 2022 [September 22nd, 2022]
- Letters to the Editor: Queen injected vitality, vigour into lives of many - The Kingston Whig-Standard - September 22nd, 2022 [September 22nd, 2022]
- Climate action that runs on cooperative federalism - The Hindu - September 15th, 2022 [September 15th, 2022]
- The spirit of federalism - The News International - September 15th, 2022 [September 15th, 2022]
- Javier Perez Sandoval Receives the 2022 William Anderson Award - - Political Science Now - September 15th, 2022 [September 15th, 2022]
- A new Constitutional Convention is a very bad idea | Opinion - Knoxville News Sentinel - September 15th, 2022 [September 15th, 2022]
- Rodney Hero Receives the 2022 Barbara Sinclair Lecture Award - - Political Science Now - September 15th, 2022 [September 15th, 2022]
- Department of the Interior, Fish and Wildlife Service: Migratory Bird Hunting; 20222023 Seasons for Certain Migratory Game Birds - Government... - September 15th, 2022 [September 15th, 2022]
- Increasing Threat To Federalism From Centrally Sponsored Schemes- Need To Form A Federal Front - Countercurrents.org - September 3rd, 2022 [September 3rd, 2022]
- Breakenridge: Supporting federalism is the only way Alberta can be a partner in LNG exports - Calgary Herald - September 3rd, 2022 [September 3rd, 2022]
- Two tools for tracking the American Rescue Plans local and national impacts - Brookings Institution - September 3rd, 2022 [September 3rd, 2022]
- Opinion | Will election candidates co-operate with CN over intermodal hub? - Toronto Star - September 3rd, 2022 [September 3rd, 2022]
- Department of the Interior, Fish and Wildlife Service: Migratory Bird Hunting; Final 202223 Frameworks for Migratory Bird Hunting Regulations -... - September 3rd, 2022 [September 3rd, 2022]
- Its time to reset Centre-state relations. Onus rests on the central government - ThePrint - August 29th, 2022 [August 29th, 2022]
- 'Election Denier' Is The Dumbest Rhetorical Device In Modern Politics - The Federalist - August 29th, 2022 [August 29th, 2022]
- Need and greed - Nepali times - August 29th, 2022 [August 29th, 2022]