Datar and Dieter: The origins of basic structure

The two terms used in the Supreme Court's Kesavananda Bharti judgment use two terms - “basic structure” and “essential features” - which are not interchangable, Prof Baxi writes.
Prof Upendra Baxi
Prof Upendra Baxi

We all owe considerable gratitude, on the eve of the Golden Jubilee of Kesavananda, to Arvind Datar for his recent erudite article for Bar & Bench highlighting the dissenting option of Justice JR Mudholakar in Sajjan Singh v. State of Rajasthan. Datar rightly says that the dissents (from the reasoning though not in result) both by Justice M Hidayatullah and Justice Mudholkar sowed the “seeds “ of the Basic Structure doctrine in the Kesavananda Bharti decision.

I think that as a grateful nation, We, the People of India, should celebrate these leading dissents on its imminent  golden jubilee on April 24, 2023.

Datar recalls to us rightly that Justice Hidayatullah memorably questioned whether fundamental rights could be treated as a “plaything of the majority” (Para, 61). He concluded by upholding the Seventeenth Amendment, but sounded a note of caution that unchecked power of Parliament may have to be examined once again. I quoted the phrase widely till he quizzically asked me to read it carefully! Hadi (as he liked his friends to call him) said to me that he just said "playthings", but he did not qualify that expression.

I was not unique; almost everyone read into that phrase ‘political’ or legislative majority! But Hadi did not say this! Meditating on what he said, I realized that he meant that fundamental rights should not be the playthings of any majority - whether of the legislature,  judiciary, bar, academy, media, activists, or even groups of citizens. All citizens should respect Part III rights in ways that do prevent these from becoming playthings of any majority.

Now this is the new constitutional orthodoxy fostered by the addition of the Fundamental Duties of all citizens in Part IV-A of the Constitution. It is from his judicious and often pungent criticism of my early habits of reading Indian judicial discourse that I have learnt many things, especially the difference between reading and reading into! I have always urged students and colleagues to read slowly and very conscientiously.

But Datar thinks that even more important are the observations in the dissenting opinion of Justice Mudholkar which deserve “to be carefully read,” for these show “a deep understanding of constitutional principles and values”. They go “beyond the immediate effect of a particular amendment” to look at “enduring values that must be preserved and protected". And what is critical to note, contrary to popular belief, is that the words “basic features” were not first used by Dieter Conrad in his lecture in Banaras, but by Justice Mudholkar in the Sajjan Singh case.” (Paras 62, 63).

Mudholkar J pointedly asked: “as long as the words 'sovereign democratic republic' are there, could the Constitution be amended so as to depart from the democratic form of government or its republic character? If that cannot be done, then...could any of the rights enumerated in Articles 14 to 19, 21, 25, 31 and 32 be taken away? If they cannot, it will be for consideration whether they can be modified” (Para 66). He also articulates a similar anxiety about the amendment being “a colourable exercise of power by Parliament” (Para 70). There is no doubt that the expression ‘basic features’ was used in the Mudholkar dissent in these contexts -- specifically as features “of the constitution under which we live and to which we owe allegiance” (Para 71).

But as he also made clear, while upholding the constitutional validity of the Seventeenth Amendment, that “… this judgment is the is not an expression of my final opinion but an expression of certain doubts which has assailed me…” This raises a question whether he believed that certain basic features existed; it undoubtedly expresses an opinion that such features may be said to exist in the future.

Datar suggests that Justice Mudholkar was the first to have used this expression, much before Professor Dieter Conrad could have been said to have coined it his February 1965 Benares lecture. This lecture was published in BHU Law Journal in February 1965 (it may have been published a little later, as we know for a fact that University journals are usually in print later than the date and year of the volume they pronounce).

I do not pursue here any bibliographical detail how often Conrad’s article was presented  before the Court, as I have no access to the paper book. But according to Monika Polzin in The basic-structure doctrine and its German and French Origins: A tale of migration, integration, invention and forgetting, it was cited several times by the  Court in Kesavanada Bharati v. State of Kerala in paras 979, 982, 1,485, 2,069 and 2,151. Professor MP Singh reminds me that the expression ‘basic’ structure is as old as the works of German scholar Carl Schmitt. Even if translated by 1973, I do not think that the Bar and the Bench were aware either of his Verfassungslehre (1928) or Legalitaet and Legtimiatet (1932). However, as Polzin recalls, the French thinker Maurice Hariou seems to have escaped scholarly and judicial circles in India. Hariou carried no trace of dedication to the Nazi cult of the Fuhrer as Schmitt scandalously did. And Hariou also conceived of constituent power to be governed by certain principles inherent to the idea of  "organized law” and also to be rule-bound. The latter view is more cognate to Kesavananda.

The term ‘basic structure’ was deployed for the first time in Indian law and jurisprudence in Kesavananda in 1973.  While Dieter Conrad is acknowledged, the famous work of Professor John Rawls, A Theory of Justice (1971), is not; Rawls used the term ‘basic structure’ of a just society. But it was not well known in 1973 to the Bench and the Bar.

Incidentally, I may say also that the language of “essential function”, a close cousin of the notion of “essential features”, has been in our jurisprudence, ever since the prolix advisory opinion in Re Delhi Laws Act (1951). This opinion, especially the opinions of Chief Justice Patanjali Sastri and Justice Mehr Chand Mahajan, constantly refer us to the “essential functions” of legislative power which may not be delegated. These comprise the policies which a legislation must enunciate and translate into law and punishments for not following the conduct ordained by the laws. Similarly, the essential practices of religion have long been subjected to constitutional test of “essentiality”.

More crucial than this is an understanding of Kesavananda, and its normative progeny. The decision deploys two terms: “basic structure” and “essential features”. As I have written several times, these terms are not interchangeable. The basic structure lies in the constitutional powers of judicial review that particularize or elaborate essential features. Put another way, there may not be any ‘essential features’ without constitutional adjudicatory power of judicial review, and that power is the fons et origo (source and origin) of the co-constituent power to identify and interpret the essential features.

And so, it will remain despite coeval assertions of Parliamentary ‘sovereignty’ because all powers under the Constitution are constituted (supreme within their own jurisdiction) and no sovereign (discretionary and unlimited) power is vested in any apparatus of governance by the Constitution of India, now in Amrit Kaal, marching proudly towards its centennial celebrations in the next quarter century.

Prof Upendra Baxi is a Emeritus Professor of Law at University of Warwick and Delhi.

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