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Writ[e] & Talk | Ep 8 | Constitutional Ecdysis: How and Why the Indian Constitution May Test its Original Provisions
In this episode, Mr. Yash Sinha, in a conversation with Ms. Sonsie Khatri, gives an insight into his research paper, "Constitutional Ecdysis: How and Why the Indian Constitution May Test Its Original Provisions” published in NUJS Law Review. Mr. Yash Sinha is currently a judicial law clerk and research associate at the Supreme Court of India. Ms. Sonsie Khatri is the Deputy Managing Editor of the Journal and currently a fourth-year law student in National Law University, Jodhpur.
Mr. Sinha guides us to explore the dynamic nature of constitutional provisions and the evolution of the basic structure doctrine in the Indian Constitution, tracing through prominent judgements. The author makes the case for extension of Basic Structure doctrine in checking the validity of Ordinary Laws and further discusses new developments through NJAC case and separation of powers.
TRANSCRIPT
Ms. Sonsie Khatri
Greetings, everyone. I extend a hearty welcome to all our listeners to the podcast by the Center for Comparative Constitutional Law and Administrative Law. Mr. Yash Sinha is here to join us on the podcast today and Mr. Yash Sinha is a judicial law clerk and research associate at the Supreme Court of India. We are really excited to invite you to this episode of our podcast. We are here to discuss a paper titled Constitutional Ecdysis: How and Why the Indian Constitution May Test its Original Provisions, which was published in the NUJS Law Review in 2022, which highlighted how due to the dynamic changes, the provisions of the Constitution get in conflict. We appreciate how you adeptly use metaphors to explore the dynamic nature of constitutional provisions and the evolution of the basic structure doctrine in the Indian Constitution and we look forward to discussing this specific aspect in depth today.
Now, the topic is important, particularly in times where there are contemporary changes under the present government, which bring the need to address the ever-changing and fundamental aspects of the Constitution. So we had a great time reading your paper, exploring the topic, and especially with the historical context surrounding it. It was thought-provoking and inspirational to the board and we believe that our podcast listeners would greatly benefit from a deeper understanding of your research, which is exactly why we are here today. So yes, sir, if we just wanted to begin with the questions, if there is anything to add from your side.
Mr. Yash Sinha
No, there's nothing to add. Good afternoon to all of you. I am very excited to be here as well and thank you so much for the kind words for my paper.
Ms. Sonsie Khatri
Thank you so much, sir. So I would like to begin with the first question, which is that constitutional scholar, Professor Mark Tushnet has differentiated between strong and weak forms of judicial review such that the strong form of judicial review is one with the course decisions may only be overturned through constitutional amendments or through revisions by the judiciary itself, while a weak formed judicial review is overridden by ordinary legislative majorities. Now, notably Tushnet suggested that a weak form of judicial review may not be suitable to all constitutional conditions, but would be preferable in so far as it is more democratic and takes into account the possibility of judicial errors.
Now, as has been highlighted in your paper as well, Indian constitutionalism, which was already rooted in the American conception of judicial review after the 1970s, imported its understanding of the basic structure from Germany, which also follows judicial review in the strong sense. Now, we would like to ask you that, do you think that this form of judicial review has caused more trouble to our institutional setup than benefits in the sense that firstly, it undermines the idea of popular constitutionalism. Secondly, it might make it difficult for judicial errors to be rectified. And thirdly, it effectively permits judicial lawmaking. The question is a little bit long, but if you got all of that.
Mr. Yash Sinha
Yeah, right. The question is slightly loaded, but I think my answer can collectively answer all the sub questions attached to it. So I don't believe that by following the German scholar’s works, we adopted a strong form of judicial review. But before that, I will clarify that in my paper for the benefit of the listeners, I have argued that the basic structure doctrine is a form of a judicial review.
And later on in my paper, I discuss how it is a very moderate form of judicial review. It's not a strong form of judicial review at all in the sense that it sparks a dialogue between the coordinate branches of the government. It initiates a dialogue and nowhere in this process does the judiciary get a final word in it and the biggest example of this is the decision in Nagaraj where certain amendments were made to tweak the specifics of reservation in the constitution. This notably involved not necessarily turning upside down but heavily going against a judicial dictum pronounced by the Supreme Court. But the judiciary in this case accepted the Legislative Act.
So this in my opinion indicates a very flexible judicial review and I think Chintan Chandrachud has done a far better job than me in describing how the Indian Supreme Court has reacted to constitutional amendments. It has tested it but in the end because of a case law called Municipality Borough, a principle has been evolved which is very strongly followed in later cases that legislature can tweak the conditions under which a Supreme Court judgment was pronounced. It need not go against the judicial dictum, but it can change the basis on which the judicial dictum was pronounced. Now coming to the specifics of your question, I don't think this judicial review has caused more trouble to our institutional setup than benefits because each time a constitutional amendment was subject to the basic structure judicial review, we got enhancements in the basic structure doctrine as a concept and this has enabled a lot of benefits for the country, for the polity as a whole. One example without elaborating on it too much is the case law in Bommai. It's a beautiful decision. It not only extends the doctrine to test executive actions, it also asks the executive branch of the Indian state to take steps that further enhances the basic structure of the Constitution. Now this enhancement could not have happened if the judicial review was wrong because at the end of the day, you want the executive to respond to you. You want the legislature to respond to you positively. So in that sense, our judicial review is moderate. It asks the legislature and the executive to do certain things which enhances the strength of the Constitution.
But it does not impose anything on them. Secondly, does it undermine the idea of popular constitutionalism? I think a very good opinion in case of Kesavananda Bharti has answered it. Indian constitution does not grant the right to vote supremacy. It does not accord it the status of a fundamental right and as I have elaborated in my paper, the basic structure doctrine is actually protecting the constitution which is a secondary constituent power. The primary constituent power is the people of the country and I have argued that the people of the country can anytime step in and if they see that the constitution has been distorted in its application to a degree from which it cannot be repaired, they can completely dispose of the constitution. So as long as people have the last say, I don't think constitutionalism promotes an idea that representatives, democratically elected representatives get the last say over any idea, any concept, any action in the Indian polity. Does it make it difficult for judicial errors to be rectified? Again, I think as long as judicial review is not the last word on anything, I think even if there are judicial errors, they can be rectified and in any case, the constant tweaking of the basic structure doctrine itself, speaks volumes about how flexible the judicial review in the system of our country is. And lastly, whether it permits judicial lawmaking, I think I've sufficiently answered this. The executive in Nagraj has overturned the judicial dictum and despite that act of the parliament affecting a declared basic feature. The parliament, the Supreme Court simply accepted the tweak made by the parliament. So, I hope this answers your question.
Ms. Sonsie Khatri
Yes sir, that makes a lot of sense. I would like to move on to the second question, which says that as you have pointed out in your analysis of IR Coelho vs State of Tamil Nadu, that despite its flaws, one thing that it makes clear is that separation of powers is a device that ensures a counter majoritarian balance against those who initiate amendments, such that any broad program for amending the constitution is inevitably involving institutional dialogue. Now this is also similar to John Hart, L.E.'s theory of courts acting as counter-majoritarian forces instituted to protect the discreet and insular minorities from their fundamental rights violation. Now do you feel that the basic structure doctrine, as much as it is indeed a brooding omnipresence in the sky, has served its function in actually preserving the constitution against majoritarian assault? And what is your assessment of the doctrine on its 51st anniversary?
Mr. Yash Sinha
I believe that the basic structure doctrine has been extremely essential in preserving our democratic polity. Majoritarian assaults such as witnessed in the case law of Raj Narayan where certain elections were sought to be cemented from judicial review. It was the basic structure doctrine that protected our polity. And there are many more instances like this. And the question that, first of all, I would like to clarify that the basic structure doctrine, it may have been a brooding omnipresence, but its primary function in preserving the constitution comes from its very design. The Supreme Court form a very Superficial view, it seems the Supreme Court has reduced the basic structure doctrine to a game of Jenga Tar, where you remove a few pieces and find out which are the foundational blocks which keep the Tar standing. According to me, the Constitution is preserved by the doctrine because it's like a seesaw. It balances the original intent of the framers on the one side and the contemporary demands on one side, all held by the fulcrum of basic structure doctrine.
Now, why do I say this? As long as contemporary circumstances are managed by the original text of the Constitution, the Constitution shall stand preserved and the basic structure doctrine's task is exactly this and the best example again, I think Raj Narayan is a very good example. Apart from that, even Kesavnanda's opinions, so for example, the majority opinions there rely heavily on teleological reasoning. They say that it is essential that part four of the constitution be seen as an aspirational goal of the people. It is that aspirational goal which brought us together and if that goal is threatened, our very existence as the Indian polity will have no meaning, and this reasoning has been deployed time and time again. So basic one of the reasons which cemented the doctrine in our jurisprudence is the teleological reasoning. The other is the structuralist line of argument which says that if multiple provisions capture a certain principle, this denotes that the framers accorded so much importance to this principle that they reiterated in various forms at various sites in the constitution.
Now again, if the basic structured doctrine preserves these principles, The very existence of our constitution is also preserved and if the constitution is preserved, the very idea that brought us together as people will stand preserved. And 51st anniversary is a huge landmark and as will be seen by many other judicial concepts, they do not necessarily survive such a long duration. This speaks volumes about how sturdy the doctrine is, not only is it sturdy, the flexibility with which it has arrived, that speaks volumes about how it evolves to contemporary circumstances. Now for example in I.R. Coehlo, it lays emphasis on the counter-majoritarian element in the doctrine. If you secure a majority in the parliament, you by default get a very powerful executive. This check, this counter majoritarian element in the form of a basic structure review which will test all kinds of actions, be it executive actions as sanctioned by Bommai or legislative actions as sanctioned by Ismail Faruqi, constitutional amendments as sanctioned by Kesavananda Bharti itself. This speaks volumes about its durability. So, I do not feel that. The counter majoritarian element in the basic structure doctrine has been compromised with in all over these years. This concept is impeccable and without it the very existence of the constitution will come under threat, under extreme threat.
Ms. Sonsie Khatri
That makes a lot of sense. So you have also highlighted in your paper the conflict between Professor Upendra Bakshi's idea that judges ascribe meaning to rather than discover textual intent and the Dorkinian conception of judges in hard cases, such as Kesavananda, and how ultimately it was Professor Bakshi's apprehension that seems to have been proven correct. Now, do you think that the Dorkinian theory is possible at all, especially in the context of a dysfunctional democracy like India, using a term from Rusell and Dixon? Or do the needs of responsive judicial review in dysfunctional democracies necessitate judges to move beyond the text of the Constitution?
Mr. Yash Sinha
So in this context, firstly, I'll clarify that Dorkinian theory has already been applied multiple times in multiple instances by the Supreme Court of India. A lot of, I believe, Justice Krishna years judgments apply that and these popular concepts where transformative constitutionalism and constitutional morality are applied are also an instance where the Supreme Court has cracked a Dorkinian hard case by pushing the boundaries of the Indian writ jurisdiction. So whether the Dorkinian theory is possible at all, it has already occurred. Is it ideal is another question? I don't think it is because the Indian constitution has a very, very nuanced writ jurisdiction and it is very important to recognize its context and the background in which our writ jurisdiction was formulated. Originally, when we were still a colony, there were six writs imported directly from Great Britain. This sixth writ was the writ of procedendo. It allows courts to expedite the pace of proceedings in the courts over which Supervisory jurisdiction exists. So for example, under Article 227, if writ of procedendo was still available, you could approach a court under Article 226 and 227 and ask a trial court to expedite its proceedings. Dr. Ambedkar removed it.
Then there were many other restrictions installed by Dr. Ambedkar. these restrictions are best found in this case law called Ujjambai, which lays down the criteria, criteria with which any citizen of the country can approach writ jurisdiction and also the criteria under which a non-citizen can invoke the writ jurisdiction and it's very, very nuanced. For example, if you want to seek mandamus, right? Let us suppose you suspect the government is spying on you, you file a writ before the Supreme Court and you simply seek a response from the government to clarify whether you have been a subject of espionage or not. Under Article 32, if you are seeking mandamus, your writ is going to be dismissed because Ambedkar is very clear when you file anything under seeking mandamus, you need to seek a positive action from the state. So this is just one illustration of how nuanced the doctrine of writ jurisdictions in India is. So I don't think the Dorkinian conception of solving cases is an ideal case scenario, but it's already been happening. Another instance is IMAI where an enabling provision under Article 15 was read to be a mandatory provision. So there are many illustrations, don't think it's ideal. It goes against the design of our writ jurisdiction. But more than that is the need of responsive judicial review. Yes, the judicial review will be meeting exceptional challenges in a country which follows the Westminster system.
I think the most important counter-majoritarian element in our polity is the Supreme Court. But do we need to push the boundaries of the writ jurisdiction to do that? I don't think so. Now an example of a balanced approach would be the Supreme Court gets an idea where due to rampant caste based discriminations, it wants to read the caste based surnames as prohibited titles under the constitution. The ideal case, at best it could utilize its powers under mandamus to direct the government to conduct a study, make a committee and see if it is time to move on and eliminate caste based surnames. But it cannot take the task of eliminating caste based surnames onto itself. Why? As I argued before, it's beyond the powers of the writ jurisdiction. Secondly, practically speaking, Supreme Court should not indulge in policy making. Because if in this case it were to step ahead and read caste-based surnames as prohibited titles. It will disrupt a very nuanced social welfare framework where a lot of benefits are given to the underprivileged because of their caste-based surnames. So according to me, Dorkinian approach has already been applied. Is it ideal? No. And can the Supreme Court respond to this? to excessive threats or the needs of the society without transgressing the jurisdiction? Yes.
Ms. Sonsie Khatri
That was very insightful, sir. As highlighted by you in the NJAC case, Khehar J. effectively extended the basic structure doctrine to ordinary legislations as well, such that the legislation may be struck down for violating one or many basic provisions. Now in a series of recent pronouncements, the courts have gone through various cases challenging the Tribunal Rules 2020 as well as the Tribunal Reforms Audiences very clearly applied the doctrine even to ordinary legislation. Now while it is conceded that the ends are just, are the means to achieve these ends also justified? In the sense that the judiciary is overstepping its powers as neither the Constitution nor the basic structured doctrine as originally applicable allows for testing ordinary legislation on the touch stone.
Yash S. Sinha
So no, because the basic structure doctrine, my entire point in writing the paper was that this concept came about to tackle any threat to the basic structure of the Constitution. Now what do I mean by that? If you look at Kesavananda and the development of the doctrine from Kesavananda to Minerva Mills and from there on, Justice Chandrachud makes a very good point. He says that if a basic feature can be threatened by a provision of the constitution itself or an amendment itself, why can't an ordinary legislation do the same? There are times when an ordinary legislation comes close to threatening the very existence of a concept espoused by the Constitution as a basic feature. So if this is a possibility, why can't the basic structure doctrine extend itself and test ordinary legislations? What are the practical challenges? Are there any practical challenges in extending the doctrine to testing ordinary legislations? No. This is again demonstrated by Coelho. Coelho deals with a very unique set of circumstances, but it's still very denotative. Coelho dealt with a circumstance wherein an ordinary law was put under schedule IX and it was granted immunity from judicial review. Coelho said, no, this is a unique case where a new kind of constituent power has come into me. It's not purely constitutional law. It's not purely ordinary law and to test this hybrid phenomena, we need a new test.
Now why does it say it's a hybrid phenomena which needs a new test? If the law was not to be put in Schedule IX and it was violative of any constitutional provision and failed the Article 13 test, then it would have been struck down easily. But merely by being placed in Schedule IX, it's getting an undue protection. So to tackle this undue protection, it came up with a set of tests where it tests the identity and the essence of rights. Now that apart, ordinary legislations can be extremely debilitating to the basic features. For example, recently a high court has tested a very gender-biased, private contract on the angle of the basic structure doctrine. To me, this was a very agreeable thing to do. Now, why do we need ordinary law to be tested by the basic structure doctrine and why is it not a transgression by the judiciary is because. The current law on this could be Ismail Farooqi, which tested an ordinary legislation and it went against Raj Narayan in doing so. Raj Narayan said that any derivative feature of a basic feature cannot be tested by the doctrine because the basic structure doctrine directly relates to the provisions mentioned in the constitution.
And if we allow testing derivative features, what do derivative features mean here? Let's say Article 14, its derivative feature could be a judicial concept like when misbearing principle, Raj Narayan says, if we allow this, then each bench of the Supreme Court will be coming up with a new derivative feature every day as it usually does, and there will be no way for the executive to act freely, because then it won't be tested simply against the text of the constitution. It will also be tested against the many judicial concepts built under that problem constitutional provision. But it is an extremely flawed approach because anyways when a parliament enacts a law, it has to take into account the former Supreme Court judgments, not only the former Supreme Court judgments, High Court judgments and when the parliament has to comply with the Supreme Court decisions, it makes no sense that it can deviate from basic features at the same time. So there it makes no sense that we allow applying the basic structure doctrine to constitutional amendments and executive actions, but not laws. So I think this concludes my views on why the basic structure doctrine must extend to ordinary laws.
Ms. Sonsie Khatri
I just had a doubt regarding what you just said. I wanted to understand that, do you think this kind of an approach draws a false equivalence between the basic structure doctrine and the principles of the Constitution, which emerge from the interpretations of the Constitution itself? Don't you think that might be an issue? Because what this initially started as a limitation on Constituent Powers and now it's being extensively invoked on ordinary legislative powers. Don't you think this goes against the traditional forms of judicial review?
Mr. Yash Sinha
No, because I think that how and how a threat to any constitutional provision is struck down is very crucial for a democratic polity. Why do I say this? All judicial dictars, as I said earlier, are factored in by future legislative actions. All legislative actions have to comply with the judicial acts, judicial declarations in the past, even if they do not want to comply with the judicial declarations of the part, they have to intelligently change the conditions under which that judicial declaration was given. So what I'm trying to say here is the judicial pronouncements are a very crucial factor for future legislative acts. Now how is it pertinent to your question? If a law violates both the standards set out, let us say under article 13, but also violate a basic feature of the doctrine. I argue that it should be struck down as a violation of the basic structure because the more strongly you denounce this act, the less, the more hesitant the executive and the parliament will be in the future when they come to enacting laws on this subject. So I don't find it unjust at all, if the basic structure doctrine is heavily used to test ordinary legislations because at the end of the day, the court also understands when to exercise its discretion and when to denounce an egregious violation of the basic feature strongly, even if it could be simply tested under an Article 13 test.
Ms. Sonsie Khatri
So, do you think that leads to any other practical issues that might come up?
Mr. Yash Sinha
So one issue that I focused on was the critical view against me, which is that, when I was discussing Coelho in my paper, I make this point that Coelho is good because it leads to a very strong judicial denunciation of an ordinary law when it violates basic feature. The opposite view is that why build this nuanced test under the basic structure doctrine when it could easily be taken care of by an Article 13. My problem with this is, if we do not denounce this threat to the basic structure, a lot of ordinary laws will be enacted to directly challenge basic features. Because I think it's a very underutilized tool for a majoritarian government. such as the one present today or in the past or the ones that will come in the future. If we make the test of basic structure doctrine very limited to ordinary laws or executive actions, this assumption that the court will not be executive friendly in the future will harm us dangerously. So I don't see one practical downside of this is that if judicial discretion runs riot in these cases, a lot of laws will be unnecessarily struck down by the basic structure doctrine. Basic structure doctrine at the end of the day is based on very vague and aspirational provisions of the constitution. So I get that judges have a huge latitude in determining what a basic feature is, how does it apply? And if they start to abuse their discretion. A lot of laws can be struck down. But I counter that in the latter parts of my paper by saying that there are multiple checks and balances on the basic structure doctrine. Firstly, you have to identify the basic features by going through a group of multiple provisions to identify if there is any commonality between those provisions and whether they are foundational to our constitution, whether they serve a teleological purpose. So I think there are sufficient discretion limiters in the doctrine and if it is applied to testing ordinary legislations, there is more benefit than.
Ms. Sonsie Khatri
Okay, so that makes a lot of sense. I would like to move on to the next question. So in your discussion on the NJAC issue, you have also highlighted the fact that upon a test of indispensability, judicial primacy does not seem formative to judicial independence. So could you elaborate upon this in light of cases like Gainda Ram and others versus MCD which dealt with laws to regulate hawking in Delhi, which is still a major concern, where the court held that these issues must be left to parliamentary discourse, overstepping which would be a breach of the doctrine of separation of powers. Now here a number of scholars raise the concern that due to the basic principle of judicial primacy, it lies upon the judiciary to address the issue of public importances and that the act of the judiciary of leaving the same for parliamentary discourse exhibits a violation of judicial independence from the legislature to adjudicate on such kind of issues. Now moreover, can the test of indispensability be applied here to propound a misconstruction of the idea of judicial primacy itself?
Mr. Yash Sinha
So this takes us back to the NJAC issue. Firstly, I'll confess that I'm not very well acquainted with this case, Gainda Ram versus MCD, but I think I got the crux of the question. I think NJAC is very dangerous for the point I raised in my previous answer. If you remove the discretion limiters in the basic structure doctrine, it can it is liable to be misused and one discretion limiting principle built into the doctrine is that you take you identify the basic provisions basic features and then you don't read a lot of things into it. It is inevitable that a lot of things will be read into it. So for example, in under article 21 if you read privacy, privacy becomes a part of the basic feature according to me and then future, I mean ultimately it's completely, a judge made law. It's a judge made basic feature and a lot of things will come to be struck down if this basic feature test is applied by testing ordinary law or executive action against privacy as a basic feature. But my problem here is that in NJAC when a derivative feature is raised on the same plane as the formative feature which is judicial independence. I don't mind this elevation. Judges should identify some derivative features and see if the primary basic feature is dependent on it. But in this case, there was no link between the two. It is unclear how primacy of the judiciary in its own appointments safeguards the independence of the judiciary. Just to give a few points against this, if I am a young judge and I know that a senior most judge of a particular court will be or could be appointing me in the future, my behavior could go under a chilling effect where I censor the words I use in my judgment, my behavior, I may put requests for the roaster I am allotted as a young judge.
A lot of things could happen. Then again, if judiciary itself as it exists, I'm not critiquing the collegium system as it exists right now, I'm just giving some food for thought. If it were to remain opaque and not take the suggestions of the executive seriously, a lot of members of the society who have been traditionally excluded cannot rise up to the benches of the High Court or the Supreme Court. a more open system is more preferable could be the argument of some scholars. I am not endorsing one or the other, but given the opacity, I find the link drawn in NJAC to be very weak and very unsubstantiated for that matter.
Now coming back to the question at hand, how is it a concern if judicial independence is violated and an the test of indispensability be applied here to propound a misconstruction of? I think this is a very valid question and Jack is a clear illustration of the same. There is no counter to any judges conception of what constitutes a derivative feature, what constitutes a fundamental feature of a basic feature. Judicial discretion in cases relating to the basic structure doctrine becomes very, very infinite. So as long as original discretion limiting features of the basic structure doctrine are right, a multi provisional analysis, a teleological view, the with test, the essence test, Nagraj in its entirety. I think as long as judges tread the path of limiting their discretion, this misuse will be constrained. But in the end, I'll agree. This expansion of a basic feature by judicial dicta is the slippery slope in the basic structure doctrine that can be worked upon by the judiciary.
Mr. Sonsie Khatri
So since you might not have a lot of context about what's been happening recently in this case, I also wanted to bring it to your attention and connect it with this question that in this case, it was concerning the legal framework for regulating hawking in Delhi. And what was happening was that the Supreme Court in previous cases had also implemented had basically urged municipal authorities to implement laws, etc. So a question came up that since the court had been basically ensuring implementation of law, could it also at some point in time ask the government to frame a law?
Mr. Yash Sinha
I don't think it is valid from any point of view. First of all, I'll argue that the power of the Supreme Court to oversee such an exercise is invalid in itself. It's again transgression of its jurisdiction. It is exercising what the judiciary calls a continuing mandamus, which is nowhere sanctioned by the Constitution. But assuming this is not a problem.
Asking the parliament to frame a law is not a transgression. Asking the parliament to frame a law to all the while adhering to certain standards is a problem because setting standards is more in the legislative domain of things but again overseeing this entire exercise I'm not sure how the basic structure doctrine relates to merits of the case but it's clearly a violation of the writ jurisdiction in my view and if it asks the legislature to frame a law as per the judicial standards laid down in the judgment, if it imposes those standards it leaves the legislature with no discretion to deviate from it. I don't think it is valid because the court's job, there's a very good High Court judgment and I think the only judgment on this point, it says that court does not lay down the law. It only exposes what the correct law is. This is in line with Rupa Hurra's pronouncement that higher judiciary is not stated and it cannot frame laws because Under the constitution, the power to frame laws rests with the legislature and the executive. And by this high court pronouncement, the limited role of the judiciary is to exposit the correct law. Then in that line, in that light, if they are setting the judicial standards which the parliament will have to follow in lawmaking, it's completely wrong. If it's giving guiding principles, I don't see anything wrong with it.
Mr. Sonsie Khatri
Okay, so that makes sense. Moving to the next question, I would like to ask that upon your discussion on the fact that amendments exist as quote, evolved to went out multinational desires, but not the ones intending to dissolve the order. Can you elaborate upon how one must construe what exactly constitutes amendments that aim to dissolve the order? And firstly, how must one understand this in light of contemporary debates such as the ones on the uniform civil code? Secondly, can this constitutional test be applied to matters of criminal law such as in the cases for abolishing the law of sedition?
Mr. Yash Sinha
Right, so firstly, what I meant by order is in the context of Article 76 of the German Constitution where the people who thought that the constitutional system became very disagreeable could have reached a point, according to scholars, where they could have overthrown the entire system, was tackled by introducing a provision which allowed minimal changes in the constitution of the land so that this particular order was maintained where the constitution wasn't changed easily and the older system continued to operate to the greatest degree possible that is the limited context in which I use the term order. Now going to your first sub question, amendments that aim to dissolve order. is best highlighted by Conrad when he gives his example in a speech in BHU on which the Kesavananda Bharati judgment indirectly relies and Palkhiwala's written submissions directly rely on. He says that if implied limitations are not read into the constitution, there could be hypothetical amendments which are going to demolish the very basis of the Indian constitution. These include the deletion of Articles 1 clause 1, which says that India shall be a union of states, and Article 21, all later on, again hypothetically parliamentary systems extermination, or the country's expulsion of states where the current ruling party, or any ruling party of any time, is unable to secure landslide majorities. So this is what I mean when I say order, preservation of order. In the German context, order was a little too extreme and I'll admit I used that concept in my paper as well. But when Keshav Nanda Bharti was being pronounced and then the later judgements like Bommai which saw emergency or Vaman, Vaman Rao which saw... another emergency but the matter became in fractures because the emergency was removed. They saw basic structured doctrine as preserving constitutional systems evolved over time as well as the system established by the text of the constitution and the order they referred to is not public order which is referred to by the landmark case law of Ram Manohar Lohia. Order is not only about security and public tranquility. Order is the continuance of a system that civilizes people or is based or on which a civilization is based on. This is the context in which I use the term order. UCC is very disruptive thing to this concept of order that I just laid down. Because when you introduce something like that, you have to make a lot of corresponding changes across legal frameworks. So if we bring UCC, there will be a demand that HUF, a concept in the Indian Income Tax which is granted solely on the basis of religion that will have to be re-looked at. So it's extremely disruptive and the basic structure of doctrine should be able to, in my view, preempt the introduction of the UCC or strike it down even if it is introduced merely because of the large practical upheaval it will cause. That apart, that apart. CAA, right, if the citizens or any law that shocks the moral conscience of the Indian people, they have a right under Article 21 to mobilize themselves and bring the entire country to a state where order as understood under a case law such as Ram Manohar Loya is disrupted, right, in that case the basic structure doctrine cannot come into play and interfere with the right to protest because the protest firstly it's I'm talking about a hypothetical protest here because of its sheer scale it indicates the people's will and as I said earlier the people are the primary constituent power if the primary constituent power is exercising its rights under the constitution.
It indicates, it indicates that intent to preserve order. It indicates that the act of the executive or the legislature is probably in the wrong and in such a scenario, the basic structure doctrine cannot apply. Lastly, sedition. Sedition again, I don't know how to answer this exactly because sedition has a lot of jurisprudence which defines order in a way. I mean, scholars can argue that order under sedition has been defined very expansively. That's why the abuse of sedition by the executive has been very prevalent. But my view is that still order as far as sedition is concerned is a very narrow concept. I am talking about a much larger concept of order where the constitutional system remains in place. Yes, at the same time, it can be countered that by giving a very expansive meaning to the word order as far as the sedition law is concerned, the very rights, very basic features of the Constitution are defeated. As such, the order to preserve which the basic structure doctrine was created is defeated is a very valid counter. So it can be approached both ways. If you ask me right now, the court's reading of sedition, why leads the basic feature of right to protest, the essential trifecta of 14,19,21 and as such it defeats the very purpose of the basic structure doctrine which is to preserve order. And in India, if article 19 grad. grants Article 19 and 21 in my opinion collectively grant the right to protest, not only Article 19. Then the very purpose of bringing the basic structure doctrine in place gets defeated. So I hope this introduces some clarity in that.
Ms. Sonsie Khatri
Yes, sir. I just wanted to confirm that then do you think this kind of constitutional test can be applied to matters of criminal law or is it reserved for a bigger, like bigger debates as they are in constitutional law only?
Mr. Yash Sinha
No, practically speaking, I don't think there is any hindrance in applying the basic structure doctrine to criminal matters because ultimately my entire paper is about original provisions can be struck down for their possible violations of the basic structure doctrine. One of these provisions in my view is Article 22, the entire jurisprudence and lawmaking under 22 relates to criminal law. Now criminal law, when I was making this argument that ordinary law is equally capable of damaging the basic structure doctrine as an executive act or a legislative act or a constitutional amendment, I did not mean that only civil law can damage the basic structure doctrine. Criminal law will have a more direct impact when it comes to threatening basic features and it's equally susceptible to the basic structure test.
Ms. Sonsie Khatri
Okay, so moving to the next question, while discussing the doctrine of intelligent favoritism, you highlight how certain aspects or provisions falling under the basic structure are given more weightage than others. Now although there exist tests such as skillsanian logic, derivative reasoning and the utilitarian approach discussed by you, does this raise the question of lack of objectivity by the judges in applying this doctrine? especially in questions of law which are religious or politically inclined in nature.
Mr. Yash Sinha
No, because as I said there the discretion limiting features in the basic structure doctrine are firstly good in quantity and very high in quality. But to understand what I am trying to say, we first need to understand what other doctrines like the basic structure doctrine lack. and how the basic structure doctrine comparatively stands out a little bit. So for example, I would argue that constitutional morality is a doctrine which has been recently espoused by the Supreme Court from the days of GNCTD versus Union of India to a lot of cases where the Supreme Court has ordered floor test.
For example, in one case, the question was about the right, the freedom to move under Article 19. Members of a certain political party were captured and put in a confined space. So they filed a writ, approached the Supreme Court and the Supreme Court in this limited question of law went ahead to direct a floor test. By citing constitutional morality, they said, this not only violates Article 19, Article 19 actually because it embodies freedom to speech and expression, freedom to move, well it collectively denotes that it's the front runner provision for democracy. So what we are going to do is despite your prayer being a very limited one, we are going to order a floor test and the reason it gives is the conception of constitutional morality Justice Deepak Mishra in previous case laws. So here it's a completely discretion based theme. You read certain ethos in the constitution. You can read them from a single provision of the constitution. You don't have to check if this is reiterated anywhere else in the constitution. And then you go beyond the pleadings of the parties to utilize the power under Article 142 to do complete justice. This I don't believe that it's a very healthy thing and that's how the basic structure doctrine counters this ill. It has a lot of discretion limiting features. I know I'm repeating myself a lot, but I think it is a very important thing to notice about the doctrine. Multiprovisional analysis, teleological interpretation, then this case law RCP also evolved. At least I think it's a very innovative approach to the doctrine.
It evolved something known as the test of preponderance, where a certain act of the legislature or the state, it violated some basic, it didn't violate but it abridged certain basic features of the constitution. But more than that, it benefited a larger number of basic features, other basic features. So applying this test of preponderance, the court was of the view that because the larger benefit is the enhancement of a greater number of basic features will allow the alteration of the other two or the minimal. basic features involved. So test of preponderance is there, Raj Narayan barred elevation of derivative features to the plane of basic features and the width test. Width test looks at a very egregious violation. It is espoused in Nagraj, it says that a basic structure test cannot lie until and unless the principle which is getting violated comes out of a multi provisional reading of many provisions in the constitution. And secondly, it cannot be tested under the established judicial review mechanisms under the constitution, which means, let us say an act by the state government towards its employer is very unjust and he's raising basic structure arguments. There already exists administrative law judicial review in India under Article 14 and 21. So the width test will bar the application of the basic structure test and will ask the applicant, the person who invoked the writ jurisdiction to approach the state administrative tribunal or any other court seeking a different prayer.
Apart from administrative law review, there exist two more law reviews in India, judicial law reviews. First is a federalism based competence and compliance test under articles 245 and 247 and of course article 13, which is a fundamental rights violation test, test whether the laws categorized as ordinary laws by the constitutional provision of article 13. comply with fundamental rights. So with test is again a very good discretion limiting feature. It will see whether the principle which is under violation comes out of multiple provisions and whether a pre-existing judicial review can tackle it. If the first condition is satisfied and the second condition is not satisfied the with test applies. So taken cumulatively I think the basic structure doctrine is very, very discretion limiting. And when it comes to questions of religion or political inclinations, instead of using doctrines such as constitutional morality or transformative constitutionalism, basic feature tests are the most appropriate methods for the court to go about handling such a situation.
Just one more point, very short point in fact. If Kelsenian logic and derivative reasoning and utilitarian approach, I don't think out of these Kelsenian logic is something I endorse. Constituent power is a very, very vague conception and I believe I have discarded it in my paper as well. I think it is discarded by the judiciary and I have recognized it because the sovereignty argument if you look at Kelsingian logic is all about sovereignty. It's use in case of Nanda is beautiful, but it's a very vague formulation. I do not absolutely do not endorse the concept of sovereignty locating who is weightier sovereign because in India immediately after independence, the first amendment was introduced, which restricted a lot of rights. And in Shankari Prasad, the court in the absence, please note that the first amendment was passed in the absence of the Rajya Sabha. In Shankari Prasad, the court approved the first amendment saying that the Lok Sabha is a sufficient repository of constituent power. So, Kelsenian logic, I'm not, I just wanted to clarify, I do not endorse it as a discretion limiter. If anything, it's a abused by the judges. So that's a necessary clarification I wanted to have.
Ms. Sonsie Khatri
Okay, so, so I this connection, this question, I think is already answered by you to an extent, but I would like to still make you consider this that towards the end of the paper, you have discussed the concept of varying reservation as being closer to democracy under Poudyal. So essentially, though one may initially understand the 93rd amendment that introduced article 15 as an alteration to the wider concept of equality under the basic structure doctrine. This very alteration may on applying the preponderance test prove to be in furtherance to achieving the singular goal of equality under the essence test. Now can this be related to the idea of formative and derivative as discussed earlier or moreover can this idea be applied to justify the state's appeasement policies to various religions specifically in order to further the singular goal of secularism.
Mr. Yash Sinha
No, so first of all, actually I'll reverse the order of the question and answer the second question first because I think it is more important. I don't think it can be used to justify any appeasement policies. So what happens in Poudyal is what again I refer to the happenings in Poudyal as the preponderance test. They saw that in the assembly the state reserved seats for certain ethnic and religious groups. The court admitted that it's abridging the idea of equality and republicanism. However, it found that it advanced more basic features than it abridged. Social welfare, secularism, right? And cultural rights. the right to life under article 21. So it actually took a very formulaic approach to the case circumstances at hand. Now, if it, let us say the intention of the government there was to appease, right, appease a certain group or something like that. I think the court would have held that this is not secularism, right? Let us say, let us go into a hypothetical and say that in Poudyal, actually the intent of the government was blatantly communal. It was to appease a certain group, right? Then one of the factors, which is that social welfare. This shifts from the right side of the weighing scale to the left side. That is, the features of the basic structure of the constitution which are violated suddenly become greater in number than the basic features which are getting enhanced by this act of the state. So in that case, the court is going to apply the basic structure doctrine, conduct the test of preponderance and strike the appeasement down. So I think, the question that you posed is actually very reconcilable with my reading of Poudyal. Then can this be related to idea of formative and derivative? No, I don't see any direct link between the two. Because when we test when we test how many basic features are getting benefited, how many are getting violated or abridged, we do not see the link between these features involved. What we are seeing is, what is the larger implication of the Executive Act or the legislations or the legislatures act? So for example, republicanism is not directly relatable to social welfare. I am sure a theoretical scholar can draw a link. I can right now. There is no palpable link between the two. But what the code's intent in conducting a test such as it did in the Poudyal case was to find out what is the larger benefit we are getting from it. If the basic structure doctrine, as I said earlier actually, it's a game of seesaw.
What it's seeing is if the seesaw is level or if it's tilted towards a side which will benefit the basic structure doctrine, then it's going to allow it. There is no question of seeing whether or there is any link between the basic features in word. You cannot say that
On this side, equality is getting violated and republicanism is getting violated. And on this side, secularism is getting enhanced and social welfare is getting enhanced. And then read the many features of social welfare and add it on the weighing scale on the side of the enhanced basic features. This is barred by Raj Narayan, where it refused to read judicial review as a basic feature because it considered it to be a derivative later on the case laws turn this finding but the reasoning has not been taught. I reiterate formative features cannot be elevated to the plane of basic features as of now. So I don't think this can be related to the preponderance test in Poudyal can be related to formative and derivative. concepts as I discussed in the context of an engine.
Ms. Sonsie Khatri
Okay, so for now that brings our questions to an end. That was a wonderful conversation. Before I say anything further, I wanted to add a question on my behalf that we read your paper, it was a really great time. We were nervous when we first chose this because it's a long paper. And while we're used to this kind of reading in the college, we were... unsure how our questions would come off as, because we were unsure that we would, you know, not completely get all the concepts that you have mentioned in the paper. But reading your paper was really inspirational and a lot of us actually struggled with legal writing in college, because that's something that you have to take out a lot of time for. So I just wanted to ask that, do you have any kind of legal writing advice for law students and your experience with the same?
Mr. Yash Sinha
So legal writing, I don't think it's a very complicated art. We must have an end goal in our mind. For me, what worked was provocations. I mostly litigated and when I began writing, I had already litigated in Delhi for about one and a half years. COVID hit and then I began writing on constitutional law, arbitration and the areas of law which interested me. It was mostly because there was a provocation involved. I prepared a lengthy note of submissions and it was not utilized or even it was utilized by my mentors, the court did not deem it fit in the circumstances of the case and when the final judgment was published, I found it to be radically wrong. I thought that my inputs could have been relevant there. So this kind of provocation is very necessary for you to pick up the pen. And more than that, I believe you, there's a difference between writing, between being a writer and between being an author, because when you sign up for taking a research project. You have to undertake all the peripheral tasks associated with it. You have to look at authorial sources. You have to look at strong citations to buttress your arguments. Now, let me try to pack both the points that I said into a more practical form.
Firstly, what was the provocation for me to write this particular paper? There was this decision in the Supreme Court which by sheer chance I was a witness to. I wasn't involved but I was a witness to the hearings and everyone in the courtroom rose from the dead when an argument was made that an original provision of the constitution, the fifth schedule could be tested by the basic structure doctrine itself. So I went back. I was very curious about this argument, the judgment in effect applies this argument, but it does not say this explicitly. What I mean to say is it does not explain how the basic structure doctrine can test an original provision of the Constitution. So I was very curious. So a provocation that box was ticked off.
Secondly, there’s a lot of source and material on any aspect on the basic structure doctrine available. So to solidify my arguments, to even give my thoughts a certain direction for this paper, I had to refer to a large number of scholarly sources. So these are the two points that I think were necessary. Yes, the second point, the main reason for me mentioning the second point is that while try to solidify the arguments you are going to make while writing something, it's a very exciting journey. Unlike a debate, where a verbal debate, in my opinion mostly, it's a very enjoyable exercise, but it ensconces each speaker into their partisan bubbles more firmly. Whereas when you go through written literature, you get counter arguments. You are more provoked when it comes to thinking about it, unlike debating where you get ensconced in your partisan bubble. So that's an advantage. If you like thought provocation, if you like counter arguments, and you don't want to, you want to leave the table happily after our discussion with a person who's not very like-minded, writing a paper is a very good way to go about it. It helps you vent frustration, it enhances your knowledge and the very last factor is in litigation, which I aim to do ultimately. You need to have a huge database of research on the areas of law you intend to practice. So when you sit down and write a paper, you gather a research document which is 10x the size of your paper you get to publish and it's not the paper that will benefit you in the future, it's the research document that you create.
So that's another point which is very necessary. As long as you feel provoked by any occurrence, I think writing is very easy. It's extremely easy. Make a skeletal of bullet points that you want to cover and when you start writing, I would suggest as soon as you are done with preparing a skeletal of arguments, you start writing because the real work happens while you write. You get this sense of responsibility that what if I write this? What can be the possible counter to this? This working of your brain as a devil's advocate itself happens when you begin writing. So prepare a skeletal of bullet points. If you are provoked, start writing and things will come naturally. Apart from this, I don't have any real inputs because my experience in writing is still an evolving phenomenon. But I hope some of these tips will be taken seriously and they could be of help to some of the listeners here.
Ms. Sonsie Khatri
Yes, that was very helpful. Now, as we draw this episode to a close, I would just like to conclude with the fact that it's clear that our discussion with you has been nothing short of revelatory. Your exploration of this constitutional dynamic shift and the pivotal role of the basic structure doctrine.
Your analysis, particularly your interplay between judicial review forms and their impact on democratic values and institutional integrity has offered us profound insights into the complexities of constitutional evolution. Now, we on like the fun end of it, I would like to mention that we really enjoyed the metaphors that you and like use in your papers and even while you talk. We would also like to mention that we extend our sincerest gratitude to you for joining. and sharing your invaluable perspectives. To our audience, we would like to say thank you for tuning in. Your interest and engagement makes these conversations possible and profoundly meaningful. Until then, we thank you for listening to the podcast and hope you do that in the future as well. So that is it. Yes, sir.
Mr. Yash Sinha
Yeah, I'd like to add a few words before we end this. I am also equally thankful for the very high quality of questions I received. And thank you for being patient. And it was a lovely, enjoyable conversation for me as well. Thank you so much.
Ms. Sonsie Khatri
Thank you so much, sir
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