India's Constitutional Identity by Chakrabarty Bidyut;

Author:Chakrabarty, Bidyut;
Language: eng
Format: epub
Publisher: Taylor & Francis (CAM)
Published: 2019-03-06T16:00:00+00:00

Parliamentary federalism and the basic structure of the constitution

Parliamentary federalism is a core value of the Constitution of India in two significant ways: first, by providing a definitive format in which governance is to be articulated, parliamentary federalism lays and sustains India’s politico-administrative foundation. Second, despite apparent incompatibility of parliamentary form of governance with federalism, it emerged as perhaps the best possible structure in the context of the political situation arising out of the partition of the country and the integration of the states. Do they constitute ‘the basic structure’ of the Constitution? Given their politico-institutional importance is sustaining democratic structure in India, there is no doubt that they are critical to Indian polity. Constitutionally significant, ideologically critical and politically meaningful, these values seem to have grown stronger presumably because of India’s pluralist character. In this sense, despite the imperial origin because parliamentary federalism was conceptualized (though in a different form) in the 1935 Government of India Act, the combination of two apparently contradictory constitutional tendencies acquired salience largely because of the peculiar social texture of Indian polity in which this constitutional format struck organic roots.

The Basic Structure debate that began with the 1973 Kehsavananda Bharati case redefined the constitutional discourse in India. In this oft-quoted case, the Supreme Court of India restricted the parliamentary domain with the argument that parliamentary power cannot be so exercised as ‘to alter or destroy the basic structure of the Constitution’. This is a significant judgement in two respects: first, it reiterates the caution of the founding fathers that parliament in India is not as supreme as it is in the Westminster system of governance except during emergency. Second, the critical principles that hold the Constitution in its true spirit can never be sacrificed in any circumstances. Parliamentary supremacy is appreciated within the political format of parliamentary democracy which upholds ‘federalism’ as ‘a life wire’ of Indian polity. One can tinker with these foundational values of the Constitution only at the cost of its basic structure.

There is a serious problem of interpretation of what constitutes the basic structure because the Supreme Court itself stressed that ‘the claim of any particular feature of the Constitution to be a basic feature would be determined by the Court in each case that comes before it’.16 So, these basic features are not ‘finite’ although the Court identifies a number of features – like the supremacy of the Constitution, parliamentary democracy, the principle of separation of powers, the independence of judiciary and the limited amending powers of parliament – as basic features. The doctrine therefore amounts that there are some features in the Constitution that are more ‘basic’ or ‘fundamental’ than others. While the Constitution can be amended by following the stipulated procedures, these features which are basic to the Constitution can never be altered presumably because amendment to these radically alter the nature of the Constitution.

Two important points that emerge out of the discussion on the basic structure need to be addressed. First, the debate seeks to strike

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