“Amend as you may even the solemn document which the founding fathers have committed to your care, for you know best the needs of your generation. But the Constitution is a precious heritage; therefore, you cannot destroy its identity.”
[Minerva Mills Ltd. and Ors. v. Union of India and others, AIR 1980 SC 1789]
The doctrine of Basic Structure includes general features of the broad democracy, supremacy of the Constitution, rule of law, separation of powers, judicial review, freedom and dignity of the individual, unity and integrity of the nation, free and fair education, federalism and secularism. The Basic Structure Doctrine admits to identify a philosophy upon which a Constitution is based.
A Constitution stands on certain fundamental principles which are its structural pillars and if those pillars are demolished or damaged, the whole constitutional edifice may fall down. The metaphor of a living Constitution is usually used in its interpretive meaning i.e., that the language of the document should evolve through judicial decisions according to the changing environment of society. A Constitution’s amendment process provides another mechanism for such evolution, as a ‘built-in provision for growth’.
Prima facie, the view that a Constitution must develop over a period of time supports a broad use of the amendment power. Nevertheless, even if we conceive of the Constitution as a living tree, which must evolve with the nation’s growth and develop with its philosophical and cultural advancement, it has certain roots that cannot be uprooted through the growth process.
In other words, the metaphor of a living tree captures the idea of certain constraints: ‘trees, after all, are rooted, in ways that other living organisms are not’. These roots are the basic principles of a given Constitution.[1]
In the words of Carl Friedrich, a German mathematician and physicist:
“A constitution is a living system. But just as in a living, organic system, such as the human body, various organs develop and decay, yet the basic structure or pattern remains the same with each of the organs having its proper functions, so also in a constitutional system the basic institutional pattern remains even though the different component parts may undergo significant alterations. For it is the characteristic of a system that it perishes when one of its essential component parts is destroyed.”
Therefore, it is not merely a matter of which principles are more fundamental than the others. It is not an exercise of ‘ranging over the constitutional scheme to pick out elements that might arguably be more fundamental in the hierarchy of values’, William Harris correctly claimed, adding that: ‘a Constitutional provision would be fundamental only in terms of some articulated political theory that makes sense of the whole Constitution’.
The idea of a hierarchy of norms within the foundational structuralism is to examine whether a constitutional principle or institution is so basic to the constitutional order that changing it – and looking at the whole constitution – would be to change the entire constitutional identity.
Gary Jacobsohn, Professor of Constitutional and Comparative Law in the Department of Government and Professor of Law at the University of Texas at Austin, argues that constitutional identity is never a static thing, as it emerges from the interplay of inevitably disharmonic elements. But changes to the constitutional identity, ‘however significant, rarely culminate in a wholesale transformation of the constitution’. This is because a nation usually aims to remain faithful to a ‘basic structure’, which comprises its constitutional identity. ‘It is changeable’, Gary writes, ‘but resistant to its own destruction’.
Yaniv Roznai in his thesis referred to above, has referred to Water Murphy who argues:
“Thus an “amendment” corrects or modifies the system without fundamentally changing its nature: An “amendment” operates within the theoretical parameters of the existing Constitution. A proposal to transform a central aspect of the compact to create another kind of system – for example, to change a constitutional democracy into an authoritarian state … – would not be an amendment at all, but a re-creation of both the covenant and its people. That deed would lie outside the authority of any set of governmental bodies, for all are creatures of the people’s agreement.”
In other words, constitutional changes should not be tantamount to constitutional metamorphosis. Conversely, one should not confuse constitutional preservation with constitutional stagnation. As Joseph Raz writes:
“The law of the constitution lies as much in the interpretive decisions of the courts as in the original document that they interpret … But … it is the same constitution. It is still the constitution adopted two hundred years ago, just as a person who lives in an eighteenth century house lives in a house built two hundred years ago. His house had been repaired, added to, and changed many times since. But it is still the same house and so is the constitution.
A person may, of course, object to redecorating the house or to changing its windows, saying that it would not be the same. In that sense it is true that an old constitution is not the same as a new constitution, just as an old person is not the same as the same person when young. Sameness in that sense is not the sameness of identity … It is the sameness of all the intrinsic properties of the object. … The point of my coda is to warn against confusing change with loss of identity and against the spurious arguments it breeds. Dispelling errors is all that a general theory of the constitution can aspire to achieve.”
Source
Judgment of Justice J.B. Pardiwala in Janhit Abhiyan v. Union of India (2023)
[1] “Unconstitutional Constitutional Amendments : A Study of the Nature and Limits of Constitutional Amendment Powers”, Yaniv Roznai, Thesis, February, 2014