What is the "Basic Structure" of the Constitution of Hindusthan?

In an earlier post I have spoken about the “Basic Structure” of our Constitution. Frankly, my assertions came from meme and not enough study.

It’s intriguing that while we freely speak about working the Constitution to resolve conflicts and even amending it slightly, we rarely if at all broach the subject of if there is something in the Constitution itself that makes conflict possible? Can we make the necessary changes in the book?

The folks I interacted with personally have spoken about the Legislature and the Judiciary being guided by a “Basic Structure” of the Constitution. I used to imagine a definitive set of terms that cannot be touched. Cannot be amended. Was immortal and would live on as long as we were a Republic. Then Eureka!

The “Basic Structure” as such is not part of our Constitution but does seem to be a strong corner stone of the reigning philosophy of our secular-socialistic Republic. There are two words in this nebulous “Basic Structure” that need serious review.

They are “Secularism” and “Socialism”.

The former is mentioned twice and the latter once, in our Constitution. Both have not been defined in it. The Constitution of Jammu & Kashmir does not recognize either. Reference.

From learned accounts the concept of “Basic Structure” arose out of a conflict between our Judiciary & Legislature. The question was to determine who could interpret the Constitution and make changes to it and who was the final arbiter.

In this post, I have linked to an excellent study by Venkatesh Nayak on the subject of the “Basic Structure”.

Here is his summary at the end –

It may be said that the final word on the issue of the basic structure of the Constitution has not been
pronounced by the Supreme Court- a scenario that is unlikely to change in the near future. While the
idea that there is such a thing as a basic structure to the Constitution is well established its contents
cannot be completely determined with any measure of finality until a judgement of the Supreme Court
spells it out. Nevertheless the sovereign, democratic and secular character of the polity, rule of
law, independence of the judiciary, fundamental rights of citizens etc. are some of the
essential features of the Constitution that have appeared time and again in the apex court’s
pronouncements. One certainty that emerged out of this tussle between Parliament and the
judiciary is that all laws and constitutional amendments are now subject to judicial review and laws
that transgress the basic structure are likely to be struck down by the Supreme Court. In essence
Parliament’s power to amend the Constitution is not absolute and the Supreme Court is the final
arbiter over and interpreter of all constitutional amendments.

So, essentially this boils down to recapturing the ideological space now held by the secular-socialist cabal. The starting point of this battle seems to be to recognize the evil of not just socialism but also of secularism and the platform upon which stand both – liberalism.

– Namaste

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4 Responses

  1. There is plenty of writing available on the basic structure doctrine, the motivation for its construction, its implications and the controversy surrounding it. It was not originally constructed to defend socialism or secularism; rather it marked the culmination of the long struggle between the legislature and the judiciary over the right to property. The idea was drawn from the first article of the German constitution. Secularism as a part of the basic structure was introduced much later. The court has still not ruled on the status of socialism but some like Madhava Menon think that if secularism is part of it, it is difficult to claim that socialism is not (folks like Fali Nariman who challenged this amendment recently in the Supreme Court might disagree). The Indira Gandhi government refused to accept it and many Congressmen continue to reject it but it is not that much of a political flashpoint these days. It is debatable whether it has been all that influential after all though the court used it on a few occasions in the past.

  2. I have no disagreement with what your saying except to clarify that “basic structure”, even though not defined, has been used to thwart any *real* debate on Constitutional reform. Since the only party that has even attempted such an exercise has been the BJP led NDA, the concept has also been used to shield secularism in letter and spirit. This is not the same as saying the BJP/NDA challenged secularism.

    Hindu political parties must find it within themselves to intellectually challenge the convenient discourse of “basic structure”.

  3. For a lot of reasons, the BJP is extremely unlikely to challenge the basic structure doctrine anytime in the forseeable future (this requires a post to explain all the reasons). The Venkatachalaiah commission to review the constitution was poorly thought out, planned and executed which is why it is not surprising that it ended up largely a failure. More on this later…

  4. I am very interested to know your views on the BJP vis a vis the “basic structure” orthodoxy as well as how a BJP led formation could have gotten behind it all opposition parties to agree to its scheme of Constitutional review; without the requisite house majority.

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