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Mainstream, VOL 61 No 43-44 October 21 & 28, 2023

Powerful endeavour to counter the identity of the country on an ascriptive criteria | Naveen R Nath

Saturday 21 October 2023



The Theory of the Basic Structure:
Saviour of the Constitution and Democracy

by Vijay Kumar

Aakar Books
Hardcover ‏ : ‎ 202 pages
ISBN‏ : ‎ 9789350028278
Price: Rs.595/-

The theory of the ‘basic structure’ of the constitution propounded by the largest–ever bench of 13 judge by the Supreme Court in historic Kesavanand Bharti is in news, not only for 50 years of its formulation, but also for well-orchestrated attack on the theory by the former Chief justice of India, and presently a nominated member ofRajya Sabha, Ranjan Gogai, and other persons.

“The Theory of Basic Structure: Saviour of the Constitution and Democracy” by Vijay Kumar is a seminal book of profound significance. The Book represents the robust defence of the Theory of Basic Structure at a time when overarching values of the Constitution, particularly federalism and secularism, are under attack from the rising tide of identity politics.
- The central theme of the book is that the core values of the Constitution correspond with the ‘idea of India’, and any dilution of these values would denigrate the Basic Structure of the Constitution, nay, the democracy and idea of India itself.

The Book contains Ten Chapters, first chapter is purely theoretical and presents strong arguments for implied limitation on the constituent power of the Parliament to amend the Constitution. The second chapter is purely descriptive and delineates the trajectory of the evolution of constitutionalism through challenges to the Amendments right from the First Amendment in 1951 to the latest 103rd Amendment in 2022. Chapter 3 repels the old, and now revived argument, that the doctrine of basic structure is anti-democratic. As this issue is topical, it will be reviewed after laying out the contours of issues raised in other chapters. Chapter 4 is purely theoretical, as it pertains to the effect of the doctrine on theory of legal positivism. Chapters 5 to 8 wrestle with different dimensions of the theory. Chapter 9, which is a penultimate chapter, offers a thumbnail sketch of the migration of doctrine in other jurisdictions----- from the South-Asian countries to Kenya in Africa, Israel in West Asia to Columbia in Latin America.

It is the final chapter, which deals with the future of the doctrine, and Chapter 3 argues that the theory of basic structure is not anti-democratic and is at once seminal and controversial. Chapter 3 refutes the criticism that doctrine is anti-democratic by arguing that 30 % of the votes secured by the ruling party cannot be equated with the ‘will of the people’. The author quotes Pratap Bhanu Mehta’s observation that criticism of the doctrine on the grounds of it being anti-democratic stems from the impoverished conception of democracy. This chapter further underscores the significance of debates and discussions in deliberative democracy by expounding that electoral democracy is only one aspect, though an important aspect, in deliberative democracy.

It is the final chapter in which the book has made a frontal attack on the attempt to build the identity of the country on the basis of the majoritarian principle. After referring to many constitutional theorists and political scientists, such as Francis Fukuyama and Bhikhu Parekh and others, the book concludes that the identity of the country should not be based on ascriptive criteria of caste, religion and ethnicity. The grand political principles, like liberty, equality, fraternity and human dignity, the book goes on to assert, should define the identity of the country. The Book concludes that the basic features outlined by the Supreme Court on case to case basis, far from diminishing democracy, have strengthened it.

The doctrine of Basic Structure has always been a reference point and a beacon to assail and judge challenges in Courts every day. The author, a long-term Practitioner in the Supreme Court, and presently a designated Senior Advocate, demonstrates the ease with which he slips out of his gown and dons the hat of an academic, a rare feat in itself. The Book is a serious work of scholarship, yet has certain pitfalls. The reviewer wishfully desires that only if the language and discourse were crafted with a simpler narrative, the Book would have appealed to a larger audience. But that said, the subject itself presents inherent challenges as evident from the 11 separate Judgments constituting the view of the Bench, not all concurring.

The research undertaken in the book, in the words of K.V. Viswanathan (now Justice Viswanathan), is breathtaking. The arguments raised in the book offer strong guardrails against any attempt to convert India into “HINDU RASHTRA”. The book has come out at a time when democratic constitutionalism and the liberalism has come under strain, not only in India but even in developed countries, particularly in United States epitomized by noxious phenomenon of ‘Trumpism’ which is still kicking despite the electoral defeat of Trump in 2020 election. The US experience offers valuable insight. Regardless of the outcome of the 2024 general election in India, the hideous politics of Hindutva is going to stay and needs serious interrogation through serious academic discourse as well as political mobilization.

The book has come out at a time when democracy is backsliding and the fundamental values of the Constitution are being subverted. The book under review is a great endeavour at the academic level to counter the attempt to foster the identity of the country on ascriptive criteria and, therefore, all secular and liberal persons should welcome it.

(The reviewer Naveen Nath is a Senior Advocate, the Supreme Court of India)

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