Threat to Constitutional identity and the Theseus Paradox

Though amendment to the Constitution is a constitutionally sanctified and guided process, the passing of a Constitutional amendment invariably depends on the majority and support enjoyed by the ruling party in both the Houses of Parliament. Accordingly, the Constitution has undergone amendments 104 times during the last seventy years.

The abundant changes brought in by these amendments have substantially altered the content of the Constitution. This article addresses the question as to how to protect the identity of the Constitution, especially when a government determined to amend the Constitution enjoys a special majority.

The saga of amendments at a glance

So far, the Indian Constitution has withstood more than 100 amendments. The amendments were brought in not just for the welfare of people, but also for undoing judgments, executing arbitrary actions, and assailing the spirit of the Constitution. Besides legislation, judicial interpretation and law-making have also led to the Constitutional amendments. For instance, expansion of the scope of Article 21, Collegium system, etc.

If the process to amend the Constitution goes on, sometimes to meet the exigencies of the moment and sometimes to realise the whims and fancies of the ruling party, won’t India soon have a new Constitution in place? Here, the authors would like to draw the readers’ attention towards the philosophical concept of the Theseus Paradox, to discuss the issue further.

The Theseus paradox

The semi-historical and semi-mythological Theseus was a great king and hero of Athens, Greece. To commemorate their king, the people of Athens preserved the Ship of Theseus at its port. The ship, along with its oars, was preserved for hundreds of years. Due to the efflux of time, the quality of the wooden planks of the ship started to deteriorate. As a result, the old planks were exchanged for new ones, and after a point of time, almost all the old planks were replaced. This resulted in the development of a metaphysical theory called the Theseus Paradox, which gives rise to the following question – ‘if all the planks of a ship are replaced, will it result in a new ship or will it be considered as the old ship with changes?’ Thus, the Paradox attempts to address the problem of identity.

There are numerous schools of thought that try to answer the aforesaid question. On one hand, some experts believe that as long as the ship retains its original shape, the number of replaced wooden planks does not matter. On the other hand, some believe that as long as the ship has even one of the original planks, the ship shall be original. There is no consensus on the Theseus Paradox.

Constitutional identity and the Theseus Paradox

In Indian Medical Association v. Union of India and Others, the Apex Court, perhaps for the first time, referred to the Theseus Paradox in the context of the Constitutional amendments. The Court observed that unlike the Ship of Theseus, the Constitution itself has been provided with sufficient wood, and tools to fashion new boards, and we have been given liberty to bring necessary changes. On the question of maintaining the originality of the Constitution despite amendments, the Court reaffirmed its opinions in Kesavananda Bharati and M Nagaraj that the basic structure doctrine prevents the destruction of the Constitutional identity in case of amendments. The Apex cCurt actually intended to say that till the time the basic structure is intact, the Constitutional identity survives.

However, while doing so, the Court adopted a narrow view of Constitutional identity. The Court also failed to appreciate the different ways of an amendment, namely “addition, variation or repeal”, and their impact on the originality of the Constitution. The authors feel that the larger questions which need to be addressed are:

a. Is the doctrine of basic structure sufficient to protect the Constitutional identity?

b. Is there anything else that is also an essential part of the Constitutional identity and needs to be safeguarded against arbitrary and whimsical amendments?

c. If all the provisions of the Constitution are amended or several new provisions are inserted, by way of “addition, variation or repeal” without damaging the basic structure, will the original Constitution survive?

Authoritarian regimes and amendments

Enjoying special majority, the then government in the 1970s wrote arbitrary amendments, like the 25^th (1971), the 39^th (1975), and also the 42^nd (1976) which Baxi calls a “second Constitution”. To illustrate, fifty-nine clauses of the 42^nd amendment inter-alia led to the alteration of the Preamble, forty Articles, and the VII Schedule, and also the addition of 14 Articles in the Constitution. Similarly, the present regime enacted amendments such as the introduction of GST, 10% EWS reservation and National Judicial Appointments Commission.

There is no doubt that the present government is moving in sync with its ideological counterpart. After being re-elected, its march towards Hindu nationalism is more clear and robust. The abrogation of Article 370 and the Citizenship Amendment Act are a few glaring examples. This is where some of the statements of the leaders of the ruling party threatening the original identity of the Constitution grab our attention.

When the ruling party assumed power for the first time, a leader from its ideological wing said: “We will rewrite the Constitution to reflect Bharatiyata”. Likewise, in 2018, a Union Minister stated that the party is in power to change the Constitution. In fact, the ideological counterpart of the ruling party opposed the Constitution when it was being adopted, and wanted it to be replaced by Manu Smriti. The Code of Manu upholds the varna system (the hierarchical division of society) and justifies outrageous conduct against women and dalits. This is why Baba Saheb Ambedkar openly burnt a copy of it as a mark of protest. It is not difficult to imagine the consequences of even partial incorporation of the Code in our Constitution.

Thus, taking into account the frequent arbitrary exercise of power by the present government and the influence of its parent organisation, the likelihood of ideology-driven Constitutional amendments in the future cannot be denied. Certainly, the basic structure doctrine is here to protect the basic features of the Constitution against an amendment intending to shake them.

However, it is submitted that the doctrine is not sufficient in itself to protect Constitutional identity if any attempt to rewrite the Constitution takes place. This is because, Constitutional identity, it is argued, consists not only of the basic features, but also of the intention of the Constitution framers which is sometimes partially reflected in the basic features of the Constitution. An attempt to dilute or defeat the original intent is a significant assault on Constitutional identity. Notably, the intent of the Constitution makers is a unique aid to the interpretation of the Constitutional provisions as well.

Of course, the intention of the drafters is sacrosanct and must be respected while amending the Constitution. However, there is hardly any safeguard available against an assault on the same, except in some instances. There may arise a situation where an amendment may not harm the basic structure of the Constitution, however, it might defeat the intention of the Constitution makers.

A latest example of the same is the 103^rd Constitutional (Amendment) Act, 2019 which introduced 10% reservation for Economically Weaker Sections (EWS) taking into account income as the only criterion. This amendment by way of “addition” of a provision may not per se damage the basic structure. However, it is definitely contrary to the idea of reservation as conceived by Dr. Ambedkar. The Constituent Assembly debates reveal that reservation was essentially intended to be provided to the socially backward classes not adequately represented in the services under the state. Income was not the sole or principal factor to provide for reservation. Therefore, the original intent must be safeguarded against ill-motivated amendments.

Conclusion

Considering the current political scenario, there is no doubt that the Constitutional identity is under threat, and these apprehensions are not baseless. It appears that the Constitution-in-making through amendments will subvert the aims and objectives as originally conceived, and will serve the interests of the ‘new-Constitution-makers’. The authors are of the view that the present position of the Supreme Court in respect of preserving Constitutional identity vis-à-vis the basic structure, as reaffirmed in Indian Medical Association, is inadequate to prevent the ill-conceived attempts to amend or rewrite the Constitution by an authoritarian power.

It is reiterated that the intention of the Constitution makers also needs to be protected to preserve the Constitutional identity. Thus, borrowing the idea of the Theseus Paradox, it may be said that the originality of the Constitution may be retained if, while amending the Constitution by way of “addition, variation or repeal”, the basic structure and the intention of the Constitution makers is not demolished.

In respect of the character of the Constitutional amendments, the words of India’s first Prime Minister Jawaharlal Nehru, as quoted by Justice HR Khanna in Kesavananda Bharati, are very relevant:

“A Constitution which is responsive to people’s will, which is responsive to their ideas, in that it can be varied here and there, they will respect it all the more and they will not fight against, when we want to change it.”

Kailash Jeenger is an Assistant Professor and Ishaan Singla is a student of LL.B. final year, at CLC, Faculty of Law, University of Delhi.

The authors would like to thank Girish Gupta for the original idea.