DISSERTATION

SEMESTER & PROGRAM: 8TH SEMESTER, BA LLB CONST LAW

ANALYSING DEMOCRATIC SUBVERSION THAT REMAINS

UNAFFECTED BY BASIC STRUCTURE DOCTRINE: IN LIGHT OF
ORDINARY LEGISLATION AND EXECUTIVE ACTIONS

Submitted by:
Jeet Sinha, R450219045, 500076948

Under the Guidance of:

Dr. Mayank Mishra

School of Law,
University of Petroleum and Energy Studies Dehradun
(April, 2023)
ANALYSING DEMOCRATIC SUBVERSION THAT REMAINS
UNAFFECTED BY BASIC STRUCTURE DOCTRINE: IN LIGHT OF
ORDINARY LEGISLATION AND EXECUTIVE ACTIONS

I. Proposed Title

Democracy as the Basic Structure of Indian Constitution: The non-delineated contours of

Democracy.

II. Statement of Problem

Democracy is the form of government that ensures the people’s participation. Also, at the same
time, it ensures that the government is accountable for its action. There are many ways through
which government can ensure accountability such as by maintaining transparency in
governmental actions. In recent years, it has been seen that due to excessive majority and
dominance of one party in the Centre, the democratic features enshrined in the Constitution are
adversely affected. The role of the judiciary in any democracy is of immense importance as it is
tasked with the responsibility of interpreting the laws and ensuring that the fundamental
principles of justice, fairness, and equality are upheld. In India, the judiciary is an independent
and autonomous body, which has the power to enforce the rule of law and protect the rights of
citizens. However, in recent years, there has been a growing concern about the extent of judicial
power and the boundaries of judicial review and activism. judicial activism is pro-central
government and it can be seen that no major Central government decision has been reversed or
declared unconstitutional in the Supreme Court.

This does not mean that there is everything right done by the Central government in these years.
There are many decisions of the Central Government that are questionable and detrimental to the
basic feature of the Constitution, but the Judiciary has always shown support in all actions and
inactions. This is not a mere pro-center act rather this is a highly incentivized act or can be said a
quid-pro-quo nexus between the Judiciary and Central government. This nexus can be seen
through the appointments of judges after retirement in high-profile public offices. It is like
retirement planning for the Supreme Court judges.
The ultimate beneficiary of a democratic form of government ‘the People’ is badly affected by
such relations between the Supreme Court and the Central government. The problem does not
end here, the judiciary has shown dual standards for favouring Central Government. When a
problem arises in appointing judges, the judiciary takes all the power within its ambit to
pronounce that it has all the power to appoint the judges.

The concept of judicial review, which allows the judiciary to review the actions of the legislature
and the executive, has been enshrined in the Indian Constitution. This power is crucial in
ensuring that the laws passed by the government are in conformity with the Constitution and do
not violate the fundamental rights of the citizens. However, the scope of this power has been a
subject of debate, with some arguing that it has been overextended in certain cases.

This dissertation presents the threat and challenges to modern democracy when such questions
are arising. The dissertation will examine critically from both judicial and legislative
perspectives where one party has strong government dominance and deals with all issues raised
in above mentioned paragraphs.

III. Review of Literature

Articles

a) Christopher J. Beshara, Basic Structure Doctrines and the Problem of Democratic

Subversion: Notes from India.1

This article explores the basic structure doctrine of constitutional interpretation and its potential
to address democratic backsliding and other pathologies that can arise in post-authoritarian and
dominant-party democracies. The author argues that this doctrine, which has been developed by
the Indian Supreme Court, can provide a normative guidepost for judicial responses to
antidemocratic conduct that does not involve constitutional amendments. The article provides a
comprehensive analysis of the gaps in the constitutional doctrine that can allow for partisan
abuse to go unchecked and argues that the basic structure doctrine can fill these gaps. The author

1
Christopher J. Beshara, Basic Structure Doctrines and the Problem of Democratic Subversion: Notes from India,
48 LPAALA 99 (2015).
also emphasizes the need to expand the conversation about judicial responses to democratic
backsliding beyond constitutional amendments to other forms of democratic subversion.
Furthermore, the article argues that constitutional review in transitional settings and dominant-
party democracies should be guided by a substantive canon of construction that promotes robust
political competition, the efficacy of checks and balances, the vitality of independent institutions,
the integrity of federal structures, and the nonpartisan use of public power. This canon of
construction can provide a framework for interpreting the constitution that ensures that the
principles of democratic governance are upheld. Overall, the article is a thought-provoking
exploration of the potential of the basic structure doctrine to address the challenges faced by
transitional democracies and dominant-party democracies. It provides a compelling argument for
the need to expand the conversation about judicial responses to democratic backsliding and
offers a substantive canon of construction that can guide constitutional review in these contexts.

b) A.S. Anand, Judicial Review-Judicial Activism- Need for Caution.2

This article argues that there is a need for great caution while expanding the scope of judicial
review. This article states that the court should use its judicial activism for limited purposes, the
author states that the court cannot run the government or the administration. The court cannot
push back the limits of the Constitution to accommodate the challenged violation. It argues that
there should be limits while exercising judicial review or judicial activism.

c) Arghya Sen Gupta, Primacy and the Basic Structure: A Legal Analysis of the NJAC
Judgment.3

This article provides a legal analysis of the Supreme Court judgment in the appointment of
judge’s case. The author argues that the commonly held belief that judicial primacy is part of the
basic structure of the Constitution is incorrect and that the judges did not hold this view either.
The article also critiques the application of the concept of judicial primacy to the striking down
of the National Judicial Appointments Commission's inclusion of the Union law minister and
eminent persons and argues that this decision is flawed. The article presents a well-reasoned

2
A.S. Anand, Judicial Review-Judicial Activism- Need for Caution, 42 JILI 149 (2000).
3
Arghya Sen Gupta, Primacy and the Basic Structure: A Legal Analysis of the NJAC Judgment, 50 E&PW 27
(2015).
analysis of the judgment and its implications for the appointment of judges in India. The author's
argument that the judgment has no precedential value for future attempts to reform the
appointment process is thought-provoking and highlights the need for further research in this
area. The article is a significant contribution to the legal literature on the appointment of judges
in India. It provides a nuanced analysis of the Supreme Court's judgment and raises important
questions about the role of the judiciary in the constitutional system. The article's critiques of the
concept of judicial primacy and the application of this concept in the judgment are particularly
noteworthy and will undoubtedly generate further debate and discussion in the legal community.

d) Mohammad Moin Uddin and Rakiba Nabi, Judicial review of constitutional amendments
in light of the "political question" doctrine: a comparative study of the jurisprudence of
supreme courts of Bangladesh, India and the United States.4

This article examines the issue of judicial review in the context of constitutional amendments
and its implications for democracy and the judiciary's role in politics. The concept of the
"counter-majoritarian effect" and the debate over the judiciary's intrusion into politics are
discussed, with the paper arguing that constitutional amendments are often considered political
questions. However, the Supreme Courts of Bangladesh and India have entertained judicial
review in constitutional amendment matters, while the United States Supreme Court has declined
to do so. The article analyzes the factors that contribute to these divergent approaches, including
faith in elected representatives, faith in the democratic process, the position of the judiciary in
the political process, and the flexibility or rigidity of the constitutional amendment process. The
paper provides a comprehensive review of these issues and offers insights into the complex
relationship between constitutional amendments, judicial review, and democratic governance.

e) Ramaswamy R. Iyer, Some Constitutional Dilemmas.5

This article examines important questions related to constitutional amendments, the extent of
judicial interpretation of the Constitution, the legitimacy and necessity of the doctrine of "basic
structure," and the practice of judicial activism in India. The author also explores the legitimacy
and usefulness of public interest litigation. The article investigates whether constitutional

4
Mohammad Moin Uddin and Rakiba Nabi, Judicial review of constitutional amendments in light of the "political
question" doctrine: a comparative study of the jurisprudence of supreme courts of Bangladesh, India and the United
States, 58 ILI 313 (2016).
5
Ramaswamy R. Iyer, Some Constitutional Dilemmas, 41 E&PW 2064 (2006).
amendments should be easy or difficult and whether there should be any limits to judicial
interpretation of the Constitution. The doctrine of "basic structure" introduced by the Indian
Supreme Court is analyzed to determine its necessity and legitimacy. The practice of judicial
activism is evaluated, and the question is asked whether it has gone too far. Finally, the
legitimacy and usefulness of public interest litigation are explored. The article provides a
comprehensive review of these important issues, presenting a balanced analysis of their
implications for India's constitutional system.

f) Virendra Kumar, Statement of Indian Law-Supreme Court of India Through its

Constitution Bench Decisions Since 1950. A Juristic Review of Its Intrinsic Value and
Juxtaposition.6

This article critically analyzes Govind Goel's "Statement of Indian Law," which contains a
collection of annotated constitution bench decisions of India's Supreme Court, classified
chronologically by decade. The author's work provides a running commentary on the
Constitution and its interpretation. The Constitution bench's primary function is to resolve
substantial legal questions related to the Constitution, allowing it to adapt to the changing needs
of society.

g) Monika Polzin, The Basic Structure doctrine and its German and French origins: a tale of
migration, integration, invention and forgetting.7

This article examines the influence of German scholar Dietrich Conrad on the development of
the Indian basic-structure doctrine. The paper focuses on Conrad's French and German sources
and argues that there are implied limits on the amending power. The article traces the journey of
this idea to India and identifies which parts of the prior theoretical works were lost, which
survived, and which were further developed. The paper also compares the justification for the
basic structure in the Kesavanada judgment to earlier German and French theoretical works. The
main thesis is that the Indian basic-structure doctrine is a powerful example of how to justify
implied limits on constitutional amendment based on a rule-of-law approach rooted in the idea of
a democratic and constitutional state. The article provides a comprehensive analysis of the

6
Virendra Kumar, Statement of Indian Law-Supreme Court of India Through its Constitution Bench Decisions
Since 1950. A Juristic Review of Its Intrinsic Value And Juxtaposition, 58 ILI 189 (2016).
7
Monika Polzin, The Basic Structure doctrine and its German and French origins: a tale of migration, integration,
invention and forgetting, 5 ILR 45 (2021).
subject matter, shedding light on the origin and development of the basic structure doctrine and
its relevance to the Indian constitutional system.

h) Anushree Somnath Tadge & Pranit Tanaji Bhagat, The Doctrine of Basic Structure:
Origin and Legitimisation.8

This article focuses on the significance of the 'basic structure' in Indian Constitutional law and
aims to answer the question of how important it is to remain fundamental in preventing the
Parliament from growing into a tyrant. The paper acknowledges that while the Indian
Constitution is comprehensive, it is not without glitches, which make the business of law
complicated. The topic is chosen due to the ever-present discussion in Constitutional law on the
roadblock the basic structure presents to the Parliament's control over the judiciary. The paper
provides a comprehensive understanding of the concept of the basic structure and its origin,
tracing its development to its commencement in the Indian Judiciary. The paper starts with an
introduction to the supreme law of India, followed by an in-depth explanation of how
amendments work, and then emphasizes the importance of the basic structure in preserving the
Indian democracy. The analysis provided in the article sheds light on the crucial role the basic
structure doctrine plays in the Indian Constitutional system and provides a thorough
understanding of its significance in preventing tyranny.

i) Nafiz Ahmed, The Intrinsically Uncertain Doctrine of Basic Structure.9

This essay explores the controversial doctrine of basic structure, which grants courts the power
to strike down constitutional changes made by the legislature. The author argues that this
doctrine is vague and creates uncertainty in legal systems, which raises concerns about the
separation of powers. The essay examines the experiences of India, Bangladesh, and Pakistan
with the doctrine, demonstrating that its lack of clarity remains an issue across jurisdictions.
Overall, this essay provides a critical analysis of the basic structure doctrine and highlights the
ongoing debate surrounding the separation of powers and judicial review in constitutional law.

j) Carlson Anyangwe, Parliamentary Democracy and Constitutional Democracy.10

8
Anushree Somnath Tadge & Pranit Tanaji Bhagat, The Doctrine of Basic Structure: Origin and Legitimisation, 17
Supremo Amicus 61 (2020).
9
Nafiz Ahmed, The Intrinsically Uncertain Doctrine of Basic Structure, 14 Wash. U. Jurisprudence REV. 307
(2022).
10
Carlson Anyangwe, Parliamentary Democracy and Constitutional Democracy, 31 ZAM. L.J. 94 (1999).
This article provides a critical analysis of the differences between parliamentary democracy and
constitutional democracy and their respective relationships between parliament and the judiciary.
The focus is on the importance of a written constitution in achieving the goal of limited power
through constitutionalism. The article offers an insightful analysis of the topic and its relevance
to contemporary politics. The article's contribution to the debate on democracy and
constitutionalism is significant, and it provides an important perspective on the role of parliament
and the judiciary in ensuring a functioning democracy. The article offers a comprehensive
discussion of the relevant literature and uses illustrative examples to support the author's
arguments.

k) Walekar Dasharath, Changing equation between Indian Parliament & Judiciary.11

This article highlights the importance of studying the relationship between the Indian parliament
and judiciary in the last six decades, as defined by the Indian constitution's structure and
functions, and the norms of checks and balances. It notes that India has a separation of functions
rather than powers and discusses the changing equations between parliament and the judiciary
since the 1985 anti-defection act. The article argues that criticism of this relationship should be
based on factual performance and that some tension between the two is natural and desirable.
The theory of basic structure is presented as the only means of judging the validity of
constitutional amendments, and the article emphasizes that the Indian constitution does not give
unfettered power to any organ. This article provides valuable insights into the dynamic
relationship between the Indian parliament and judiciary and the importance of the basic
structure doctrine in safeguarding constitutional democracy.

l) Sashikant Pandey and Siddhartha Mukerji, Indian Democracy: Inclusive in theory

exclusionary in practice.12

This article explores the concept of inclusive democracy in India, which has emerged as a new
approach to democracy that focuses on substantive aspects rather than just procedural aspects.
The article examines the constitutional framework adopted by India, which aimed to provide
opportunities for the inclusion of marginalized groups and communities. It also discusses the
challenges faced by inclusive democracy due to undemocratic means of rule and the emergence
11
Walekar Dasharath, Changing equation between Indian Parliament & Judiciary, 71 IJPS 163 (2010).
12
Sashikant Pandey and Siddhartha Mukerji, Indian Democracy: Inclusive in theory exclusionary in practice, 74
IJPS 557.
of sectarian parties that mobilized marginalized castes and communities. The article also
examines the impact of global capitalism on inclusive democracy in India and the resulting
disparities between different regions and castes. Overall, the article provides a critical analysis of
the trajectory of inclusive democracy in India since independence and highlights the challenges
and realities of exclusionary practices that continue to persist in India today. The article offers a
valuable contribution to the literature on democracy and development in India and provides
insights for policymakers and scholars working in this area.

m) Brigitte Geissel et al., Measuring the quality of democracy.13

This introductory article discusses current challenges in the quality of democracy research,
explains the objectives of this Special Issue, and provides a brief overview of controversies in
existing indices that are considered by the contributors to this Special Issue.

n) Jeffrey Witsoe, Territorial Democracy: Caste, Dominance and Electoral Practice in

Postcolonial India.14

This article explores the intersection of caste identities and electoral democracy in India by
analyzing the politics of caste empowerment in Bihar. The author argues that local relations of
dominance and subordination influence electoral practice, leading to what is referred to as
"territorial democracy." The article also highlights how the rise of lower-caste politicians has
challenged upper-caste hegemony and disrupted state institutions. By examining the radical
potentiality of democracy in the postcolonial world, the article emphasizes the need for an
ethnographic approach to understanding the dynamics and implications of democracy in India.
The article contributes to the scholarly debate on caste politics and democracy by providing a
nuanced analysis of the complex relationship between caste identities and electoral practice in
India. The article's findings have important implications for scholars, policymakers, and
practitioners interested in understanding and promoting democratic governance in India and
other postcolonial contexts. Overall, this article provides a valuable contribution to the literature
on democracy and caste politics in India.

13
Brigitte Geissel et al., Measuring the quality of democracy, 37 IPSR 571 (2016).
14
Jeffrey Witsoe, Territorial Democracy: Caste, Dominance and Electoral Practice in Postcolonial India, 32 PLAR
64 (2009).
Books

a) DD Basu, Commentary on Indian Constitution.15

The author begins by discussing the concept of democracy and its various forms, highlighting the
importance of democratic values such as equality, freedom, and justice. He goes on to examine
the key features of India's democratic system, including its federal structure, separation of
powers, and the role of the judiciary. One of the highlights of the chapter is the author's
discussion of the "basic structure" doctrine, which has been instrumental in protecting India's
democratic system. Basu explains the origins of this doctrine and its significance in safeguarding
the Constitution's fundamental principles. He provides a detailed analysis of the landmark cases
that have shaped this doctrine, including the famous Kesavananda Bharati case.

b) MP Jain, Indian Constitutional Law.16

MP Jain's book on Indian Constitutional Law provides a comprehensive and insightful overview
of the principles of democracy enshrined in the Indian Constitution. In particular, the chapter on
democracy is a well-researched and detailed exploration of the various facets of democratic
governance in India. The author begins by tracing the historical development of democracy in
India, from the pre-independence period to the present day. He then delves into the key features
of democratic governance, including the principles of popular sovereignty, the rule of law, and
the protection of fundamental rights. The chapter also examines the role of the judiciary in
upholding democratic values and the challenges faced by Indian democracy, such as corruption,
electoral malpractices, and communalism.

c) HM Seervai, Constitutional law of India.17

H.M. Seervai's "Constitutional Law of India" is a seminal work that has been a go-to resource for
students, scholars, and practitioners of Indian constitutional law for decades. The chapter on
democracy in this book is a comprehensive and insightful analysis of the principles of
democratic governance enshrined in the Indian Constitution. One of the strengths of this chapter
is Seervai's meticulous analysis of the various constitutional provisions that safeguard democracy
in India. He provides a detailed account of the workings of the parliamentary system, the role of
15
DD Basu, Commentary on the Constitution of India, (9th ed. 2015).
16
MP Jain, Indian Constitutional Law (Lexis Nexis 2019).
17
HM Seervai, Constitutional Law of India (4th Edition, Universal Law publishing 2017).
the President and Governor, and the various constitutional bodies that oversee the functioning of
democracy in the country. The book also criticizes the democratic features backed by reasons.
Hence, it is a comprehensive book for academic research on democracy and other constitutional
law subject matters.

d) Nicholas Aroney and John Kincaid, Courts in Federal Countries18

"Courts in Federal Countries," edited by Nicholas Aroney and John Kincaid, is a thought-
provoking and insightful collection of essays that explores the role and function of courts in
federal systems around the world. The book consists of 14 essays, each examining the role of
courts in a specific federal country, including the United States, Canada, Germany, Australia,
India, and Switzerland. The essays are written by experts in the field of comparative
constitutional law, and provide a detailed analysis of the constitutional, political, and social
factors that shape the role of courts in federal systems. One of the strengths of this book is its
comprehensive and comparative approach. By examining the role of courts in a diverse range of
federal countries, the book provides a nuanced understanding of the ways in which courts
interact with other branches of government, as well as the broader political and social context in
which they operate.

IV. Scope of Study

This dissertation presents interdisciplinary research on the topic of democracy and judicial
review keeping in mind all the recent developments in India that poses threat and challenges to
democracy. The research will examine legal jurisprudences, societal norms, and political
backdrop from a critical standpoint. The research will attempt to identify the research gaps which
will be loaded with reasonable proposals. As the main theme of the research is democracy and
judiciary, major democratic countries will be looking for finding out the relationship between the
judiciary and the legislative body.

V. Research Questions

a) Whether the doctrine of basic structure is able to tackle the problem of Democratic
subversion?

18
Nicholas Aroney and John Kincaid, Courts in Federal Countries (University of Toronto Press 2017).
 b) Whether ‘Brute Majority’ can lead to capture by ruling party in democratic regime
in India?
c) Whether we need to re-check the power and relation between Judiciary, Legislative
and Executive body?
d) Whether our democracy give fair representation chances and inclusive in approach?
e) Whether the emergence of doctrine of basic structure challenges the power of
democratically elected government?
VI. Research Objective
a) To study and understand the concept of Democracy in India.
b) To examine the origin of Democracy in India.
c) To understand the basic features of Democracy in India.
d) To analyze the role of the Judiciary in identifying democratic features and their
interpretations.
e) To observe the evolution of modern democratic concepts
f) To do a comparative study of the Indian Democratic concept.
g) To find and provide solutions for modern day challenges of Democracy.

VII. Research Methodology

The Methodology adopted by the researcher throughout the research will be Qualitative. The
research will be doctrinal on the grounds that, in the course of the research a few case
regulations, critiques and the Indian Constitution will be alluded to figure out the perspective on
the legal executive and furthermore the goal of the constitution creators in regard to the idea of
Democracy. Additionally, various research articles and blogs will be referred to examine and
understand the modern-day challenges to democracy.

The method of citation will be Bluebook 20th Edition.

VIII. Tentative Chapterisation

a) Introduction: - This chapter deals with the introductory part containing a brief overview
of the research thesis. The dissertation consists of five chapters including the conclusion.
b) The beginning or genesis of Democracy in India.: - This chapter traces the history of
the emergence of democracy in India. At what point democracy was formally adopted?
This chapter will analyze the pre-constitution and post-constitutional concepts of
democracy. This chapter will be consisting of three sub-chapters looking at the
emergence of democracy, need for democracy and the view point of Indian legal system
and democracy conceptualization.
i. Emergence of Democracy – Global perspective
ii. Need for Democracy in India
iii. Indian Legal System and Democracy Conceptualization
c) The Democratic feature of the Indian Constitution: - This chapter deals with the
provision of the constitution related to democracy. This chapter also contains three sub-
chapters. The first sub-chapter will deal with what are the constitutional provisions and
the unwritten convention of the constitution governing democracy. The second part will
deal with the practical application of democracy in India. Whether it is the same as
mentioned in the constitution or the practice differs from the standpoint of constitutional
framers. The last part will deal with the interdisciplinary approach of democracy such as
federalism, parliamentary form of government and legislative relations.
i. Constitutional provisions and Conventions of the Constitution.
ii. The practical application of Democracy
iii. Democracy and its Interconnection with other aspects such as Federalism,
Parliamentary form of government and Legislative relations.
d) The Indian Judiciary on “Democracy” as the Basic Structure of the Indian
Constitution: - This chapter will deal with the take of the judiciary on Democracy as the
basic structure of Indian constitution. It will identify whether the judiciary has inclined
with intention of constitutional drafters while upholding various landmark decisions on
the issue of democracy. This chapter will deal with all the recent judgments by the
supreme court on democracy.
i. ECI case
ii. The Criticism of the Indian Supreme Court
 e) The modern Indian Democracy & its challenges: - This chapter will deal with what is
modern Indian democracy and what are the challenges of modern democracy. It will
analyze the growth of digital democracy and social media’s role in creating disharmony
and affecting democracy of India. This chapter will also deal with the impact of dominant
party on democracy and will analyze whether it can cause constitutional tyranny. Lastly,
the recent controversy of Rahul Gandhi disqualification will also be dealt in this chapter.
i. Majority party tyranny
ii. Rahul Gandhi Disqualification
f) Conclusions and Suggestions: - This chapter will be consisting of the observation of
author from the research and will be providing suggestions according to problem and
comparative study that may help in strengthening the theoretical concept of democracy.

IX. Bibliography

Legislations
a) Constitution of India, 1950.
b) Constitution of USA, 1789.
c) Constitution of Canada, 1867.
d) Constitution of Switzerland, 1999.
e) Constitution of Germany, 1949.
f) Representation of People Act, 1951, Act No. 43, 1951 (India).

Case Laws

a) Chief Election Commissioner of India v. M.R. Vijayabhaskar and Ors., (2021) 9 SCC
770.
b) Election Commission of India v. Ashok Kumar and Ors., (2000) 8 SCC 216.
c) PUCL v. UOI, (2013) 10 SCC 1.
d) Indira Nehru Gandhi v. Shi Raj Narayan, 1975 Supp SCC 1.
e) PUCL v. UOI, (2009) 3 SCC 200.
f) Rajkot Distt. Cooperative Bank Ltd. v. State of Gujarat and Ors., (2015) 13 SCC 401.
g) UOI v. Association for Democratic Reforms and Anr., (2002) 5 SCC 294.
 h) PUCL v. UOI, (2003) 4 SCC 399.
i) Kihoto Hollohan v. Zachillhu and Ors., 1992 Supp (2) SCC 651.
j) Digvijay Mote v. UOI and Ors., (1993) 4 SCC 175.
k) Ashwini Kumar Upadhyay v. UOI and Ors., 2023 SCC OnLine SC 207.
l) Manoj Narula v. UOI, (2014) 9 SCC 1.
m) Anoop Barnawal v. UOI, 2023 SCC OnLine SC 216.
n) Pukhrem Saratchandra Singh v. Mairembam Prithviraj, (2015) 16 SCC 149.
o) Public Interest Foundation and Ors. v. UOI and Anr., (2019) 3 SCC 224.
p) Lakshman Singh v. State of Bihar, (2021) 9 SCC 191.
q) Subrata Acharjee and Ors. v. UOI and Anr., (2002) 2 SCC 725.
r) R.C. Poudyal v. UOI and Ors., 1994 Supp (1) SCC 324.
s) State (NCT of Delhi) v. UOI and Anr., (2018) 8 SCC 501.
t) Janhit Abhiyan v. UOI, 2022 SCC OnLine SC 1540.
u) Supreme Court Advocates on Record Association and Anr. v. UOI, (2016) 5 SCC 1.
v) K Krishna Murthy v. UOI and Anr., (2010) 7 SCC 202.
w) Abhiram Singh v. C.D. Commachen, (2017) 2 SCC 629.

Research Papers/Journals

a) Christopher J. Beshara, Basic Structure Doctrines and the Problem of Democratic

Subversion: Notes from India, 48 LPAALA 99 (2015).

b) A.S. Anand, Judicial Review-Judicial Activism- Need for Caution, 42 JILI 149 (2000).
c) Arghya Sen Gupta, Primacy and the Basic Structure: A Legal Analysis of the NJAC
Judgment, 50 E&PW 27 (2015).
d) Mohammad Moin Uddin and Rakiba Nabi, Judicial review of constitutional amendments
in light of the "political question" doctrine: a comparative study of the jurisprudence of
supreme courts of Bangladesh, India and the United States, 58 ILI 313 (2016).
e) Sidharth, Myth of Judicial Overreach, 43 E&PW 15 (2008).
f) Ramaswamy R. Iyer, Some Constitutional Dilemmas, 41 E&PW 2064 (2006).
 g) Virendra Kumar, Statement of Indian Law-Supreme Court of India Through its
Constitution Bench Decisions Since 1950. A Juristic Review of Its Intrinsic Value And
Juxtaposition, 58 ILI 189 (2016).
h) Monika Polzin, The Basic Structure doctrine and its German and French origins: a tale of
migration, integration, invention and forgetting, 5 ILR 45 (2021).
i) Anushree Somnath Tadge & Pranit Tanaji Bhagat, The Doctrine of Basic Structure:
Origin and Legitimisation, 17 Supremo Amicus 61 (2020).
j) Nafiz Ahmed, The Intrinsically Uncertain Doctrine of Basic Structure, 14 Wash. U.
Jurisprudence REV. 307 (2022).
k) Carlson Anyangwe, Parliamentary Democracy and Constitutional Democracy, 31 ZAM.
L.J. 94 (1999).
l) Walekar Dasharath, Changing equation between Indian Parliament & Judiciary, 71 IJPS
163 (2010).
m) Sashikant Pandey and Siddhartha Mukerji, Indian Democracy: Inclusive in theory
exclusionary in practice, 74 IJPS 557.
n) Brigitte Geissel et al., Measuring the quality of democracy, 37 IPSR 571 (2016).
o) Jeffrey Witsoe, Territorial Democracy: Caste, Dominance and Electoral Practice in
Postcolonial India, 32 PLAR 64 (2009).
p) Eddy Asirvatham, Trends in Modern Democracy, 15 IJPS 213 (1954).
Books

a) MP Jain, Indian Constitutional Law (Lexis Nexis 2019).

b) DD Basu, Commentary on the Constitution of India, (9th ed. 2015).
c) HM Seervai, Constitutional Law of India (4th Edition, Universal Law publishing 2017).
d) James Hogan, Modern Democracy (Cork University press 1938).
e) Nicholas Aroney and John Kincaid, Courts in Federal Countries (University of Toronto
Press 2017).
 I. INTRODUCTION

Basic Structure doctrine is seen as one of the most promising doctrines of Indian Constitutional
Jurisprudence. India has seen several instances where parliament has exceeded its powers,
therefore, the doctrine of the basic structure acts as a protector to ensure that there is no
subversion through constitutional amendments. The Supreme Court has been very successful in
developing the concept of basic structure since the emergence of this doctrine through various
landmark judgments.

The doctrine has always created a healthy atmosphere for legislative action to be fair and to be
within constitutional limits. It acts as a tool of check and balance of parliamentary powers.
Democracy being one of the important features of the Country has been given the status of basic
structure. However, it is evident from the time, that subversion of democracy in constitutional
text is not only possible from the amendment but there are other means through which the
parliament can shake the pillars of democracy without changing the original constitutional text or
without making any effect to the basic structure of Indian Constitution.

Some of the methods of democratic subversion have already been identified by Author
Christopher J. Beshara19, which can be listed below:

1. Capture of Independent Institutions.

2. Manipulation of Legislative Procedure
3. Erosion of Political competition at the subordinate level
4. Incumbency Advantages
5. Alignment b/w a ruling party’s parliamentary and organizational wings
6. Manipulation of Electoral processes.

These are all the processes of democratic subversion pointed out by him. We will delve into
detail to find out every possible form of democratic subversion in this paper in Indian Context.
While dealing with this concept, it is also pertinent in the Indian Context to deal with Judicial
Accountability because Supreme Court being the ultimate interpreter of constitution, have the

19
Christopher J. Beshara, Basic Structure Doctrines and the Problem of Democratic Subversion: Notes from India,
48 LPAALA 99 (2015).
responsibility to deal with every form of democratic subversion. There are various instances
where Supreme Court has kept itself out from the matter of government where the government is
present in the Brute Majority. This is not a mere assumption because there exists a quid pro quo
nexus between Judges and executive as it has been seen in some recent cases that judges after
retirement are appointed to top-level executive positions.

Therefore, it becomes important to do an imperative study on the real power of the doctrine of
basic structure to find out the questions mentioned above. There is immense faith of people in
the judiciary and that faith is built over time through various decisions affecting people's lives in
a better manner. However, we have given the tag of purity to the judiciary instead of having
human involvement. Recently, Retd. Chief justice of Orissa HC pointed out that Judges do have
political biases, politics and judicial functioning cannot be separated as we want.20

This dissertation will critically examine the position of Independence of the Judiciary in India,
whether it is free from the process of democratic overpowering, whether doctrine of basic
structure tackle the problem of democratic subversion, whether the respect for the judiciary is
forced by the fear of contempt of court, why there is no judicial accountability.

This can be done by understanding the true nature of democracy in India and then comparing and
analysing it face to face with institutions of democracy and judiciary. It will help us to identify
the problems of democratic subversion and also enable us to understand some practical solutions
through comparative study. In this dissertation , we will also look into some recent events and
will analyse critically.

20
Live Law, https://www.livelaw.in/top-stories/judges-do-make-political-choices-politics-judicial-functioning-not-
as-separate-as-we-want-justice-retd-s-muralidhar-237829 (last visited Sep 17, 2023).
 II. NATURE OF DEMOCRACY IN INDIA

The nature of democracy in India is an important question to ask in the 21 st century. It is

important to understand that accountability, free and fair elections, and the will of people, all
remain the most important facet of democracy. However, whether our democracy truly justifies
the needs of present-day society, whether in the digital age where everybody has access to social
media and can have their own opinion truly get the answer they deserve from the lawmakers.
Throughout the research, we are going to analyze with examples to understand whether Indian
democracy stands still from the present-day challenges of democratic subversion.

We will examine the global emergence of democracy to truly understand the nature of
democracy. Then, we will look the need of democracy in India and then we will find whether our
democracy in inclusive or exclusionary in nature and finally we will look into our legal system to
identify the mechanism of democracy and how they are functioning.

i. Emergence of Democracy – Global perspective

We need to trace the origin of democracy to better understand the original conceptions and what
are major advancements that have taken place in modern democracy. This study would trace the
Ancient Greece and find out the democracy in the city-states of Athens and Sparta. From the
ancient Greek city-states to the diverse structures of the Roman Republic, the seeds of
democracy were sown, slowly evolving over time to become the fundamental framework for
many contemporary nations.

While the term democracy may have originated with the Greeks, our presentation will contend
that the essential democratic custom of requiring rulers to obtain council approval originated
independently across a wide range of human communities.1. Political scientists' standard
narratives typically ignore this important detail. Even the insightful observer Robert Dahl (1998)
proposed that while democracy might have been commonplace at the time when humans were
hunter-gatherers, monarchy and tyranny became the norm once people settled into agricultural
communities. We shall argue that Dahl was correct regarding a subset of human societies. In
many settled communities, councils-imposed restrictions on their rulers. We do not assert and in
most cases did not state that council governance also indicated the kind of extensive political
engagement that is found in many modern-day nations. Nonetheless, getting consent was a
fundamental democratic practise that was widely followed. We also propose that the emergence
of council governance was more likely to occur in contexts where the rulers had less information
than the people they aimed to dominate. In these circumstances, the rulers and the ruled could
accomplish better results by sharing authority with an information-gathering council. 21

The short- and long-term effects of early state development have been studied by a number of
contemporary writers. This work has only addressed the question of whether or not a centralised
state emerged. We investigate the existence of states as well as their nature, specifically focusing
on whether they were more autocratic or relied on councils for collaborative control. Mayshar,
Moav, and Neeman (2017) have made a significant contribution by arguing that a state was more
likely to adopt a coercive role in early societies where production was more visible. Using an
essential agent model and an examination of Ancient Egypt, they demonstrate this. In this
civilization, the great predictability of agricultural production may have contributed to the
emergence of a more authoritarian state. We begin with the same fundamental understanding of
production transparency and move on to explore how actual governance structures might change
over time to address information asymmetry. A council whose members could give knowledge
about local situations was more willing to share power with rulers in the event of information
asymmetries.

The driving forces of Democracy

One of the major arguments related to democracy is that democracy has come into origin with
the existence of the state. Without a state, there is no chance of democracy. Authors like Juan
Linz stated that- ‘No State, No Democracy’. 22 We need to understand the there are various
factors involved in emergence of the state. The characteristics of state formation start with
population, territory, government and sovereignty. So, we can say that assuming a control over
particular territory and population and exercising sovereignty makes a state. But the major
question remains why the sovereign will dilute his powers to the people by adopting democracy.

21
https://www.law.nyu.edu/sites/default/files/upload_documents/Origins%20of%20Early%20Democracy.pdf
22
Juan Linz, The failure of presidential democracy
The word democracy derives from two words demos (people) and Kratos (Ruling). Democracy
means the rule of people. In a paper, the author discussed democracy is a way of social
compromise.23 As the decision of people must come collectively, compromising the needs who
do not agree with the decision. There are two major ideas that we will discuss regarding
democracy. First, ideas proposed by John Dunn and Second, Ideas proposed by Robert Dahl. The
former proposed two forms of democracy: real and ideal democracy. He stated that democracy is
itself a utopian concept, these two forms of democracy cannot be simultaneously embodied in
any political activity. Whereas Dahl stated that:

“Democracy means something different for people situated in different times and places. For
instance, in ancient Greece, democracy was only enjoyed by free men; in the early period of US
political history, democratic rights were given only to white male in colonies; today, although all
citizens have democratic rights in law, what they really have in political life, in fact, are voting
rights.”

Many authors argue that in the emergence of democracy, socio-economic development plays an
important role. However, arguing against such notion Przeworski and others in 1996 paper
argues that Democracies can survive even in the poorest nations if they manage to generate
development, if they reduce inequality, if the international climate is propitious and if they have
parliamentary institutions.” 24

Therefore, we can say that the economic factor cannot be the sole reason but an associate factor
for emergence of democracy. While Authors like Amartya Sen states that a country does not
have to be deemed fit for democracy, rather it has to become fit through democracy. Therefore,
there are multiple driving factors for the growth of democracy.

Factors for growth of Democracy in Greece

Understanding the reasoning in this paper requires some historical context. First, there existed a
special window of opportunity for economic expansion throughout the Archaic era. Second,
there were more pronounced intraelite differences along the coast due to the fact that coastal
poleis had a larger potential for economic expansion than inland poleis, which had less access to
the sea and more fertile soil. Third, the prerequisites for a stable democracy had been established
23
Zhen Han and Lihe Dang, Democracy as a way to social compromise
24
Id.
by the Classical era, namely, a large citizenry with congruent policy goals. Here, we go into
further detail on these issues, summarise the thoughts of classicists regarding tyrants, and lay out
our theory.25

Moving to the first factor, Greek expansion found particular favour throughout the Archaic
period. Following the demise of the Mycenaean civilization (c. 1100 BCE), centuries of
shrinkage had left a large amount of empty land and resources available for the rapidly
expanding Greek population. A change in climate that brought cooler, wetter weather to the
Mediterranean Basin was a significant exogenous factor that fueled the rise of the Archaic
period. This change in climate enhanced agricultural productivity and decreased damage from
regional diseases that had been lethal in previous periods (Morris 2010). Greece's proximity to
the commercially active and economically developed Near East allowed Archaic poleis to
quickly establish—or, more accurately, reestablish—significant trading networks. Technological
innovation is a key indicator of the economic dynamism of Archaic period Greece; according to
Boardman (1982, p. 449), the first "Greek studios in command of new techniques and producing
wares which we would regard as wholly Hellenic in character" appear in the seventh century
BCE. A wave of Greek colonisation follows, reflecting the dynamism as well. According to
Graham (1982, pp. 160–62), Greek poleis created 139 colonies between 800 and 500 BCE.
"During the three centuries... 800–500 B.C. the eco nomic social infrastructure of the Greek
world underwent massive alterations which set the framework for the Classical age," writes Starr
(1982, p. 417) of the Archaic period. In terms of economics, the amount produced rose
dramatically in comparison to previous centuries, and the variety of goods and fashions was
considerably greater. Overseas trade flourished during the eras under consideration. In the most
active states, there is a noticeable widespread interest in financial gain, at least among their
metropolitan elements. Although estimates of energy capture show notable improvements,
standard measurements of economic growth (such as gross domestic product) are not available
for the era (Morris 2010).

Second, it was evident that coastal poleis had easier access to sea-based trading channels than
interior poleis did. It is evident that poleis along the coast benefited considerably more from
economic expansion when one considers the fact that their soil was generally less fertile than that
25
Robert K. Fleck and F. Andrew Hanssen, How Tyranny Paved the Way to Democracy: The Democratic Transition
in Ancient Greece, 56 TJLE 389 (2013).
of other poleis. Because of their more diverse range of interests, the elites on the coast were split
apart by the possibility of commercial expansion, but the elites inland remained largely together
due to their more homogeneous interests. The distinctions between the interior and shore are
summarised by Boardman and Hammond (1982, p. xv) as follows: “The social and political
effects of the economic revolution became apparent first in those states of old Greece which lay
closest to the Isthmus [along the coast] and were subject to the impact of new forms of wealth.
The long-established rule of landed aristocracies of birth collapsed through divisions within the
upper echelons of society, and the Greek genius for political experimentation and for political
strife was given free rein.... But in other parts of the mainland [inland] the traditional way of life
persisted, and modifications came slowly.” The distinction is essential, because as Hall (2007, p.
45) writes, “The rise of tyrants can only really be satisfactorily explained against the background
of internal frictions among elites.”26

Thirdly, the democratic poleis that arose from despotism—most notably Athens—grew
prosperous and prospered (Ober 2010). Enough enfranchised citizens must agree on policies to
the point of cooperation rather than conflict over income distribution for there to be a stable
democracy. Greeks in the Classical period were acutely aware of the consequences of internal
strife, having experienced the intraelite fights of the Archaic period. They were known to be
extremely concerned about civil conflict, which they called stasis, and went to considerable
lengths to prevent it (Hansen and Nielsen 2004). They heavily emphasized matching incentives
for policy decisions in order to achieve that goal. For instance, Aristotle contended that in order
to foster consensus on defence, every citizen of a well-run polis should own land in both the city
centre and the polis's borders. Or take into consideration this speech (from commercial litigation)
about the significance of contract enforcement for all Athenians: "Remember that by settling one
issue, you are creating a law that applies to the entire port of Athens. Many of the men who have
made the decision to trade internationally are keeping an eye on you to see how you would rule
in this instance. Lenders will be more willing to release assets from their holdings if you believe
that written agreements and commitments between partners should be enforceable and you will
not support those who violate them. You will profit as a result, and the port will prosper (Harris
2006, p. 143). The less motivation a citizen has to conduct activities that could undermine

26
Id.
democracy, the more closely linked the policy objectives are. Moreover, Greek democracy
prospered until the invasion of the Macedonians.

The democratic spirit continued to evolve, finding its way into various societies over time. The
Roman Republic, for instance, implemented a form of representative democracy where elected
officials represented the interests of the populace. However, as empires expanded, the
centralization of power often led to challenges in upholding the true values of democracy. As
civilizations waxed and waned, the concept of democracy endured, albeit with intermittent
challenges to its essence.

The emergence of democracy was not without its trials. In its infancy, democracy was confined
to a select group of privileged citizens, excluding women, slaves, and non-citizens from the
decision-making process. Moreover, maintaining the delicate balance between the will of the
majority and safeguarding the rights of minorities posed persistent challenges. Struggles for
power, corruption, and external threats also threatened the stability of nascent democratic
systems, demanding continuous adaptation and resilience from those who championed its cause.

Finally, the researcher would like to add the three major criteria to be fulfilled to hold
democracies together27:

1) Reduction of autonomous power centre in control of coercive means within state’s

territory.
2) Insulation of public politics from major categorical inequalities.
3) Integration between interpersonal network of trust and public policies.

ii. Need for Democracy in India

The question of whether India needs democracy or not was long answered and accepted in 1949
through the Constitution of India. We have adopted a democratic setup, but what made us accept
the democratic form of government? It is interesting to note that the Indian population is most
diverse all over the world. Therefore, the minorities that are not addressed through democratic
means create a challenge to the maintenance of law and order. As we talk about individuality in

27
Charles Tilly, Democracy, (Cambridge University Press 2007).
democracy, the people are not the same, they consist of individual and democratic setup require
majority of individuals to take decisions.

Democracy stands as a crucial pillar in the foundation of modern Indian society, embodying the
aspirations and struggles of its people. Since gaining independence from British colonial rule in
1947, India has strived to establish and sustain a democratic system, emphasizing the
significance of inclusivity, freedom, and social justice. This article delves into the profound
importance of democracy in the Indian context, exploring its historical significance, core values,
prevalent challenges, and potential pathways for strengthening its framework.

Democracy, as a political concept, encapsulates the essence of people's participation,

representation, and decision-making within a societal framework. In India, democracy serves as
a mechanism to uphold the diverse fabric of its cultural, religious, and linguistic communities,
fostering a sense of unity amidst pluralism.

Historical Context of Democracy in India

Pre-Independence Era
India's journey towards democracy was significantly influenced by the freedom struggle against
British colonial rule, spearheaded by visionaries like Mahatma Gandhi, Jawaharlal Nehru, and
Bhagat Singh. The demand for self-governance and equal rights laid the groundwork for the
democratic ideals embraced by the Indian Constitution.

Post-Independence Transformation
Following independence, the formation of the Constitution in 1950 solidified India's
commitment to democratic governance, enshrining fundamental rights and duties for its citizens.
The adoption of universal suffrage and periodic elections marked a significant shift towards a
representative and participatory democracy.

Core Values Upheld by Indian Democracy

Secularism and Diversity
India's democratic framework embodies the principle of secularism, fostering an environment of
religious and cultural tolerance. This inclusive approach promotes harmony among diverse
communities, safeguarding their rights and identities.

Freedom of Expression and Speech

The democratic setup in India encourages the free flow of ideas, opinions, and criticisms,
ensuring that citizens can express themselves without fear of persecution. This fundamental
freedom fosters a vibrant public discourse, essential for a healthy democratic society.

Equality and Social Justice

Central to the democratic ethos of India is the commitment to social equality and justice.
Initiatives such as affirmative action and welfare programs aim to uplift marginalized sections of
society, striving to bridge socio-economic disparities and promote inclusive growth.

Challenges to Democracy in India

Corruption and Governance Issues
Corruption and bureaucratic inefficiencies pose significant challenges to India's democratic
fabric, eroding public trust and hindering the equitable distribution of resources. Tackling these
issues remains crucial for the sustenance of a robust democratic governance structure.

Social and Economic Disparities

Persistent social and economic disparities continue to challenge the inclusivity promised by
India's democratic framework. Bridging the gap between the privileged and the marginalized
requires concerted efforts to ensure equal opportunities and access to resources for all segments
of society.

Electoral and Political Challenges

Electoral malpractices, political polarization, and the rise of identity-based politics pose threats
to the democratic process in India. The need for electoral reforms and the promotion of
responsible and ethical political practices is imperative to safeguard the integrity of the
democratic system.

Strengthening Democracy in India

Empowering Local Governance
Strengthening local governance structures empowers communities to actively participate in
decision-making processes, fostering a bottom-up approach to democracy. Devolving power to
the grassroots level enhances accountability and responsiveness, promoting holistic
development.
Promoting Civic Engagement and Education
Promoting civic engagement and education is pivotal in nurturing an informed and active
citizenry. By fostering a culture of political awareness and responsibility, individuals can
actively contribute to the democratic process, ensuring that their voices are heard and respected.

Ensuring Transparency and Accountability

Fostering transparency and accountability within governmental institutions is critical for
upholding the principles of democracy. Implementing robust mechanisms for public scrutiny,
whistleblower protection, and independent oversight can bolster the trust of citizens in the
democratic machinery.

Impact of Democracy on India's Growth and Development

Economic Progress and Social Mobility
India's democratic values have propelled its economic growth, creating opportunities for
entrepreneurship, innovation, and global integration. This inclusive growth trajectory has
facilitated social mobility, enabling individuals to break through historical barriers and contribute
to the nation's development.

Technological Advancements and Innovation

The advent of a democratic society has spurred technological advancements and innovation,
positioning India as a global hub for IT services, research, and development. The
democratization of information and the digital revolution have accelerated the nation's progress
in various domains, leading to enhanced competitiveness and global recognition.

Conclusion
In essence, the need for democracy in India is not just a political imperative but a moral and
social obligation. Upholding the principles of equality, justice, and freedom, democracy serves as
a beacon of hope, ensuring that the voices of the marginalized are heard, the rights of the citizens
are protected, and the nation moves forward on the path of inclusive development and progress.
iii. The Inclusive or exclusionary nature of Indian democracy

Dealing with inclusiveness of Indian democracy is important to know the impact and quality of
democracy in India. A good democracy should ensure maximum involvement of the major
stakeholders. Democratic rights should be available as widely to all people and it should only be
curbed on reasonable grounds. The reasonable grounds should be proportionate to restrictions
imposed on curbing democratic rights.
iv. Indian Legal System and Democracy Conceptualization

1. Group identities
2. Social inequalities
3. Labelled groups
4. Charles Tills criteria analysis
 III. DEMOCRATIC SUBVERSION AND ROLE OF BASIC
STRUCTURE

i. Meaning of Democratic Subversion

ii. Need of Basic Structure Doctrine for preventing Democratic Subversion

iii. Kinds of Democratic Subversion
iv. Recent events of Democratic Subversion
 IV. JUDICIAL ACCOUNTABILITY AND POST-RETIREMENT JOBS

Quid pro quo nexus between the judges and the political parties. Courts on trial
i. ECI case

ii. The Criticism of the Indian Supreme Court

 V. THE EFFECT OF BRUTE MAJORITY ON GOVERNMENTAL
STRUCTURES

Whether BJP have influenced the decision making? Whether any government having brute
majority can affect the democratic structures. It will be analysed in this chapter and we will have
a global study where Brute Majority have adversely affected the democratic system.
i. Majority party tyranny

ii. Rahul Gandhi Disqualification

iii. Threat on Independent constitutional bodies (EC Bill)

iv. The Anti-defection problem
VI. CONCLUSIONS AND SUGGESTIONS