Question 2: Do you think the Parliament should codify the essential features of the basic

structure of the Constitution? Anticipate the impact this would have on constitutional
adjudication.
CODIFICATION OF THE BASIC STRUCTURE: A POST-MODERN ANALYSIS




Subject: 6.2 Constitutional Law- II
Submitted to:
Dr. Anup Surendranath
Mr. Moiz Tundawala
Submitted by:
Arun Poomulli
16LLB10
III Year, VI Semester




2013
NATIONAL LAW UNIVERSITY DELHI
CONTENTS

1. Codification of the Basic Structure: A Post-Modern Analysis
2. Bibliography

















CODIFICATION OF THE BASIC STRUCTURE: A POST-MODERN ANALYSIS
- Arun Poomulli
The watershed decision of Keshavananda Bharti has its ardent fans as well as critics. The
judgement has inspired vehement critiques from academicians, scholars, constitutional lawyers.
The Keshavananda judgement marks the finest hour in judicial activism by the Indian Judiciary.
Much has been written about the legitimacy of the doctrine from claims that the same is
illegitimate as it is anti-democratic and counter- majoritarian,
1
to views that the same is legally,
morally and sociologically legitimate.
2

This essay proceeds from the standpoint that the basic structure doctrine is indeed legitimate.
3

In this essay, I argue that the Parliament should not codify the basic structure of the Constitution.
I hope to justify this stand by arguing that the very nature of the basic structure is postmodern.
As such, it is argued that the contents and meaning of basic structure will and must change over
time in response to the various factors that are at play in a set time-space reference. It is argue
that codification would bring in unneeded rigidity to an idea that was meant to be dynamic from
the very conception.
Post-modern thought is difficult to define but at the very least it has challenged the conventional
view of objective knowledge. Post modernism is in direct contradiction to traditional
epistemology , or the existing foundations of knowledge. It is however of direct relevance to the
study of law. The post-modern, while not dispensing with legitimation, challenges pre-existing
methods of legitimation, and in particular, at the present time, the idea of universal abstract
principles of legitimation. The post-modern condition therefore describes an intellectual
challenge to the assumptions and thoughts of traditional knowledge.
4
In legal analyses, a post-
modern perspective, brings into focus issues that are otherwise obscured form view.

1
Raju Ramachandran, The Supreme Court and the Basic Structure Doctrine, B.N.Kirpal et. al. (eds) Supreme but
not Infallible, OUP, New Delhi, 2000, p. 108
2
Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine,
OUP, New Delhi, 2009. pp. 164-229.
3
Ibid.
4
Ken Kress, Modern Jurisprudence, Postmodern Jurisprudence, and Truth, 97. Mich. L. Rev. 1871
Another conception of postmodernism is known as the postmodern condition or the postmodern
age. This refers to the idea that, distinct from the modern period which was marked by industrial
revolution and a consequent development in the material living conditions of man, post
modernism refers to the era of rapid technological progress of the later part of the twentieth
century marked by an increase in communications and consequently the access to information.
Though post-modernism rejects the notion of both transcendental truth and traditional
epistemology,
5
I do not wish to take this hardcore position that there is no transcendental truth. I
do however espouse the view that traditional epistemology is incomplete and factor-specific. As
such, it may be said that my stance is a soft stance. To elucidate further, there may be a
transcendental truth, or at least that transcendental truth must be conceived to exist in
Constitutional discourse as such discourse is normative. This means that the existence of truth
must be taken to be true, at least as an axiom.
An analysis of the constitutional history that led to the evolution of the basic structure doctrine is
pertinent as the postmodern nature of the doctrine can be understood only through analyzing the
trajectory of judicial decisions in consonance with the socio-political climate of the time
The Courts position in Shankari Prasad
6
was that there was no limitation on the power of
amendment under Article 368. It was observed that Article 13(2) would cover merely ordinary
legislations and not constitutional amendments under Article 368 and was thus not limited in its
power to amend under Article 13(2). The possibility of dynastic politics was not a visible fear in
the eyes of the Court in 1952. Such fear finds expression only by the time of Golaknath
7
when
Indira Gandhi had been the Prime Minister for three years. Though the authoritarian streak of
Ms. Gandhi would find expression much later, the fear of dynastic politics and the impact it
would have on the constitutional and political discourse inevitably inspired the majority to frame
the opinion that amendment under Article 368 was indeed limited by Article 13(2). Even in the

5
Peter. C. Schanck, Understanding the Postmodern Thought and its implications of Statutory Interpretation., 65.
S. Cal. L. Rev. 2505
6
Shankari Prasad v. Union of India, (1952) SCR 189
7
IC Golaknath v. State of Punjab, AIR 1967 SC 1643
Sajjan Singh case,
8
where the position held by Shankari Prasad was upheld by the Court, Justice
Mudolkar opined that the Preamble epitomizes features that are basic to the Constitution.
The Constitution (Twenty Fourth Amendment Act), 1971 brought about the necessary
amendments to counter the effect of the Golakath judgement:
1. Article 13(4): Nothing in this Article shall apply to any amendment of the Constitution
made under Article 368.
9

2. Article 368: Not withstanding anything in this Constitution, the parliament may in
exercise of its constituent power amend by way of addition, variation or repeal any
provisio of this Costitution in accordance with the procedure laid down in this article.
10

It is after this that the Keshavananda judgement
11
had come into the picture where it was held
that the Parliament could amend any provision of the Constitution provided it did not alter the
Basic structure.
Even a plain reading of the Keshavananda judgement shows that the judges were not of the same
perception as to what constituted the basic structure. For CJ Sikri, basic structure of the
constitution included concepts such as separation of powers, supremacy of the Constitution,
federalism, and the republican and democratic nature of governance. For Justice Reddy, the basic
structure involved, in addition to those mentioned by CJ Sikri, fundamental rights, and
sovereignty and integrity of the nation.
The Court now had the power to scrutinize any judgement for violation of basic structure.
whereas the scope of Golaknath was limited to fundamental rights review.
An important point to mention is that the listing of the various basic features in the case is
illustrative. It is evident that the judges in deciding the case had left the scope of the basic
structure open to further interpretation on a case-by case basis.
It is argued that the formulation of the basic structure doctrine is not foundational in nature but a
conclusion of certain patterns, in tune with the political climate of the time. Though the basic

8
Sajjan Singh v. State of Rajasthan, 1965 (1) SCR 933
9
Ins. by the Constitution (Twenty-fourth Amendment) Act, 1971, S. 2
10
Subs. by the Constitution (Twenty-fourth Amendment) Act, 1971, S. 3.
11
Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1461
structure doctrine posits certain unamendable features of the Constitution, there is no single
definitive list, per se as to what constitutes this basic structure. More importantly, the meaning of
any of the values are also open to interpretation. For instance, CJ Sikri opines that the supremacy
of the Constitution is a basic feature. I argue that the meaning of the same may be subject to
different interpretaions in different time-space, and socio-economic and cultural context.
It is thus argued that the basic structure is a creature post-modern though the same may have
been formulated within the framework of structuralism.
12

It has been argued that certain features that have been considered to be part of the basic structure
need not, in essence, be a part of the constitutional discourse, such as territorial sovereignty and
that constitutional discourse should only deal with matters such as substantive rights, etc.
13

However, the fact that the same has been identified as a basic feature point to the fact that the
articulation of the doctrine may even be post- structural.
Critics of the Keshavananda judgement are quick to point that there has been no indication of a
basic structure or of the limitations in amending power of the Parliament during the framing of
the Constitution. The counter to this argument has been that though, basic structure has not been
explicitly mentioned in any provision of the Constitution, the Court has used the tools of
structural interpretation, i.e, that the Court has taken a liberal and all-pervadng interpretation
taking into account the underlying philosophy and the spirit of the Constitution.
14

A closer look at the same reveals that the formulation of the concept of the basic structure is
merely a reaffirmation of the features of the Constitution, some elements of which may very well
be outside conventional constitutional discourse. The shift in view from Shankari Prasad to
Keshavananda is indicative of the subjective fears of the Judges who were acutely aware of the
political climate of the time.
It may also be noted that a game of dominance was being played during this whole process. The
judgement may masquerade as one setting up a grand foundationalist doctrine, but the

12
SP Sathe, Judicial Activism in India, OUP, New Delhi, 2002, pp. 77-78.
13
Upendra Baxi, The Impossibility of Constitutional Justice, Zoya Hassan et.al. (eds.), Indias Living
Constitution, Permanent Black, New Delhi, 2002
14
Supra n. 10.
undercurrents of powerplay are hard to ignore. I do not think, however that this should be an
argument for the codification of the basic structure by the Parliament.
Though the intention of creation of the basic structure was that of creating a grand
foundationalist doctrine, the reasons and processes for the same, and the exact nuances of such
formulation and interpretation is postmodern. The best that has been done is to grant eternal
existence of some features of the Constitution though the meaning of the same may be subject to
change.
It is submitted in conclusion that the formulation of the basic structure doctrine, as it is, provides
scope for dynamic interpretation which is very much the need in a postmodern post structural
need. As stated earlier on in the essay, it is my belief that codification of the basic structure
would imply absolute knowledge, which is a proposition that is not tenable in a postmodern
world. It is however to be remembered that even though such absolute knowledge is not possible,
the transcendental truth of the existence of the basic structure is acceptable and is very much
needed as an axiomatic presupposition.











BIBLIOGRAPHY
Books and Articles:
Ken Kress, Modern Jurisprudence, Postmodern Jurisprudence, and Truth, 97. Mich.
L. Rev. 1871
Peter. C. Schanck, Understanding the Postmodern Thought and its implications of
Statutory Interpretation., 65. S. Cal. L. Rev. 2505
Raju Ramachandran, The Supreme Court and the Basic Structure Doctrine,
B.N.Kirpal et. al. (eds) Supreme but not Infallible, OUP, New Delhi, 2000, p. 108
SP Sathe, Judicial Activism in India, OUP, New Delhi, 2002.
Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of the
Basic Structure Doctrine, OUP, New Delhi, 2009.
Upendra Baxi, The Impossibility of Constitutional Justice, Zoya Hassan et.al.
(eds.), Indias Living Constitution, Permanent Black, New Delhi, 2002

Cases:

IC Golaknath v. State of Punjab, AIR 1967 SC 1643
Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1461
Sajjan Singh v. State of Rajasthan, 1965 (1) SCR 933
Shankari Prasad v. Union of India, (1952) SCR 189