MOVING FROM THE BASIC STRUCTURE TOWARDS A PERMANENT STRUCTURE: FROM POSITIVE LAW TO NATURAL LAW

Abstract

This paper deals with potential lacunae of the basic structure theory as it promises to provide long-term protection to the most innately cherished values of the Indian Constitution, especially in the face of a determined executive and legislature. The paper illustrates instances like those surrounding Hitler wherein the limited amending power and the emergency provisions were used to create a new dystopian constitution. The issue of whether the limited amending power can be used to grant oneself absolute power has been investigated. The attempt has been to examine and propose potential legal means to preempt a future demagogue from destroying the cardinal values of the Constitution. The paper highlights the potential legal challenges and fallouts that could emerge from an attempt to bypass the limitations imposed by the basic structure doctrine, especially by calling for a new constituent assembly. It starts by providing an overview of the idea, origin and judicial development of the basic structure doctrine, as well as by analysing the context and the cases from which the doctrine emerged. The next section of the paper deals with analysing the jurisprudential ideas forwarded by jurists like Conrad, Maurice Haurio, and Schmitt. These jurists in essence laid down the edifice of modern understanding of constituent and constituted power. Further, they have made immense contributions to the understanding of the nature and extent of the constituent power and by borrowing from their ideas the authors have attempted to propose a new alternative legal framework. The new legal framework that has been proposed is based on a novel hierarchical understanding of certain cardinal rights, constituent powers and the constituted powers. The highest echelon of the proposed framework has been envisaged as the unchanging idea of a ‘permanent structure’ based on the natural law philosophy. This limits the usage of the otherwise unfettered constituent power that is expressed and exercised by the people. Constituent power, as a reservoir, continues to exist across different constitutions and epochs. Lastly, constituent power exists in the form of the parliament and the basic structure doctrine which deal only with one ‘particular’ constitution. The paper in the concluding section engages with jurisprudential issues related to natural and positive legal theories while proposing a framework to ensure the continued existence of certain fundamental values.