[By Shivani Tamrakar, Second Year B.A. LL.B. (Hons.) student at NLIU, Bhopal]
I. INTRODUCTION
Since Kesavananda Bharati (1973), the Basic Structure doctrine has stopped Parliament from using Article 368 to alter the Constitution’s essential features, which Hegde and Mukherjea JJ described as “so essential that they cannot be changed or destroyed.”[1] It is tempting to go further and use Hans Kelsen’s theory to call it India’s Grundnorm, because the text can be amended but the Basic Structure cannot.
That reasoning does not hold up once we read Kelsen closely, but rejecting it leaves a question open. This article therefore asks: where does the Basic Structure stand in Kelsen’s hierarchy of norms? Is it above the Constitution, inside it, or somewhere in between? The answer offered here is that it sits inside the written Constitution, at its very top.
The article proceeds in six parts. Part II sets out Kelsen’s hierarchy of norms. Part III explains the Basic Structure doctrine in brief. Part IV shows why it cannot be the Grundnorm. Part V places it inside the Constitution, at its top. Part VI explains how an unwritten doctrine became law. Part VII explains where amendment ends and revolution begins.
II. KELSEN’S HIERARCHY OF NORMS
Kelsen’s Pure Theory of Law describes every legal system as a hierarchy of norms, the Stufenbau. Each norm gets its validity from a higher norm. A rule or notification is valid because a statute allows it. A statute is valid because the Constitution allows it. But what makes the Constitution itself valid? There is no higher written rule to point to.
So the chain has to end somewhere, and Kelsen ends it at the Grundnorm. The Grundnorm is extra-legal: it is not a norm of positive law, and no one enacted it. Kelsen calls it a transcendental-logical presupposition.[2] It is something we must assume if we want to treat the acts of lawmakers and courts as valid law.
This point is often missed in India. In Government of Andhra Pradesh v P Laxmi Devi (2008), the Supreme Court said that “in India the grundnorm is the Indian Constitution,” and later decisions have repeated the line. This reverses Kelsen. As R W M Dias explains, following Kelsen, the Grundnorm is not the Constitution but the presupposition that the Constitution ought to be obeyed.[3]
For India, the Grundnorm can be stated in one line: “the Constitution of India ought to be obeyed.” Two things about it matter here. First, Kelsen’s theory is “pure” because it is value-neutral: it does not ask whether the law is just. The Grundnorm could just as well say that a dictator ought to be obeyed.
Second, amendment does not touch the Grundnorm. When a constitution is changed through the procedure it lays down, the Grundnorm stays where it was. Even a valid amendment that turned India into a communist state would leave it untouched. On Kelsen’s account, only a revolution replaces the Grundnorm, a point taken up in Part VII.
III. THE BASIC STRUCTURE IN BRIEF
Under Article 368, Parliament can amend the Constitution, and it has done so more than a hundred times. Whether this power has limits was asked as early as Sajjan Singh v State of Rajasthan (1964). There, Mudholkar J asked “whether making a change in a basic feature of the Constitution can be regarded merely as an amendment.”
The answer came in Kesavananda Bharati v State of Kerala (1973). Thirteen judges wrote eleven separate opinions, and the case was decided by a majority of seven to six. The judges never agreed on a list of basic features. The six dissenting judges would have placed no limit on the amending power at all. Even so, a clear holding came out of the case.
Nine of the thirteen judges then signed a summary of what the majority had decided. Its effect was clear: Parliament’s power to amend now had an outer limit. The Court has applied this limit ever since. It struck down parts of the Forty-second Amendment in Minerva Mills and the Ninety-ninth Amendment in the NJAC case.
So, the text of the Constitution can be amended, but the Basic Structure cannot. This difference makes it tempting to place the Basic Structure above the Constitution, and to call it the Grundnorm. The next Part explains why that move does not work, and why the difference points somewhere else.
IV. WHY IT IS NOT THE GRUNDNORM
The first reason is that the Basic Structure is a creation of the Constitution, not its source. The Court found it inside Article 368 itself, not outside the Constitution. As the summary signed by nine judges put it, “Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.”[4]
Hegde and Mukherjea JJ made the same point from the other side: “one cannot legally use the Constitution to destroy itself. Under Article 368 the amended Constitution must remain ‘the Constitution’ which means the original Constitution.”[5] To trace the Constitution’s validity back to the Basic Structure would therefore be circular.
The second reason is that the Grundnorm is value-neutral, while the Basic Structure is built on values. Democracy, federalism, secularism and judicial independence are all value choices. Placing them at the level of the Grundnorm would bring back into Kelsen’s theory the very values he worked so hard to keep out. That would no longer be a pure theory.
The third reason is that the Grundnorm must validate the whole legal order, and the Basic Structure does not. Nothing in “federalism” or “judicial review” explains why Entry 52 of the Union List, or a GST notification, is valid law. The written Constitution does that work. The Basic Structure only limits what can be done to it.
V. INSIDE THE CONSTITUTION, AT ITS TOP
If the Basic Structure is not above the Constitution, it must be inside it. The clearest account of why comes from the German scholar Dieter Conrad. He first raised the idea in a 1965 lecture at Banaras Hindu University, and later developed it in his article “Limitation of Amendment Procedures and the Constituent Power.”[6]
Conrad drew on the familiar distinction between constituent power, which makes a constitution, and constituted power, which a constitution creates. But he called that distinction, taken alone, “the weakest” argument for limits.[7] His real case was that the amending power is legislative in character, and so “cannot be equated to the sovereign constituent power.”[8]
Read this way, “amendment” means making “alterations in, not to abolish the whole constitution.”[9] Even a partial change goes too far if “the fundamental identity of the constitution is no longer apparent.”[10] The Supreme Court, too, is a creation of the Constitution: as Shelat and Grover JJ observed, “all the organs and bodies owe their existence to it.”[11] It marked limits that already existed.
Conrad’s argument draws on Carl Schmitt,[12] but it should not be mistaken for Schmitt’s. Schmitt’s wider theory favoured a strong executive: he argued that the President, not a court, should be the “guardian of the constitution,” and he later became known as the Nazi regime’s “Crown Jurist.” Conrad placed the idea inside a rule-of-law framework instead.
Nothing in Conrad’s account stops us from placing the Basic Structure within Kelsen’s hierarchy, on the same level as the Constitution itself. But being on the same level does not mean being equal. Here Adolf Merkl, Kelsen’s student, who helped him develop the theory of the hierarchy, is useful.
Merkl suggested that norms can be ranked in two ways: by which norm sets the conditions for making another, and by which norm can override another. On the second test, if norm A can override norm B, but B cannot override A, then A ranks higher, even if both sit at the same level.
Apply this to India. An amendment can change most provisions: the Forty-second Amendment, for example, added the Fundamental Duties and changed the words of the Preamble. But no amendment can override judicial review. So, the Basic Structure is not a separate level above the Constitution. It is the highest layer within it.
VI. HOW AN UNWRITTEN NORM BECAME LAW
The Basic Structure is not written anywhere in the Constitution. For Kelsen, this is no difficulty. He accepted that a constitution may include “unwritten norms of constitution,” and his Grundnorm need not point to a written document at all. The real question is how this particular unwritten norm became law.
For Kelsen, every judicial decision creates at least an individual norm for the case at hand. A court whose decisions bind beyond the case also creates general norms. In India, a clear example is Vishaka v State of Rajasthan (1997), where the Court laid down guidelines that were “binding and enforceable in law until suitable legislation is enacted.”
The Basic Structure was created in a similar way, but as a limit on Parliament. When the Court held in Kesavananda that “amendment” cannot mean destruction, it chose one meaning from within the range the word allows. As the final interpreter of the Constitution, with the power to strike down invalid amendments, it made that choice binding.
The Basic Structure is therefore valid for the same reason as any other norm in Kelsen’s hierarchy: a higher norm authorised its creation. Its fifty years of steady use matter too, but only as a condition: for Kelsen, effectiveness is a condition of validity, not its reason. It is less exact than Germany’s Article 79(3), but no less law.
VII. WHERE AMENDMENT ENDS AND REVOLUTION BEGINS
The Basic Structure does one more thing in Kelsen’s theory. For Kelsen, the Grundnorm changes only through revolution, which he defined as a change made “in an illegitimate way, that is in a way not prescribed by the first order itself.” When a revolution succeeds and the new order is actually followed, legal science assumes a new Grundnorm.
Courts have applied this idea. In State v Dosso (1958), the Supreme Court of Pakistan, relying on Kelsen, called a successful coup “an internationally recognised legal method of changing a Constitution.” In Rhodesia, the Appellate Division in R v Ndhlovu (1968) held that the regime set up after independence was declared had become the lawful government.
Both decisions proved controversial. The Privy Council took the opposite view of Rhodesia in Madzimbamuto v Lardner-Burke (1968), holding that the regime’s measures had no legal force. Pakistan’s Supreme Court later rejected Dosso in Asma Jilani (1972). But the cases show what kind of event a change of Grundnorm requires.
The clearest warning, though, comes from Germany. In 1933, Hitler’s Enabling Act was passed through the Weimar Constitution’s own amendment procedure, yet it ended constitutional government. Conrad calls the powers it created “powers of revolution,” and the amendment process “a legal cloak.”[13] Germany’s Constitutional Court later treated the Act as valid only under the doctrine of successful revolution.[14]
This is why the content of an amendment never changes the Grundnorm. If Parliament validly amended the Constitution tomorrow, however radically, the Grundnorm would still say that the Constitution ought to be obeyed. What changes the Grundnorm is a break in legal continuity, such as the setting aside of the Constitution in Dosso, followed by a new order that actually holds.
The Basic Structure matters at exactly this point. Under Kesavananda, a law that destroys the Basic Structure is not a valid amendment at all; it is void. So, it cannot change India’s law through Article 368. It could take effect only the way the Enabling Act did: by overriding the Constitution, which is a revolution, not an amendment.
This is the most interesting place the Basic Structure holds in Kelsen’s theory. It is not the Grundnorm, but it marks the edge of the legal order that the Grundnorm supports. In Conrad’s words, limits on amendment exist “to clearly mark the dividing line between orderly change and revolution, to make Rubicon visible for all.”[15]
VIII. CONCLUSION
So where does the Basic Structure stand in Kelsen’s theory? Not at the top of the hierarchy, where the Grundnorm sits as a bare presupposition that the Constitution ought to be obeyed. Not outside the Constitution either, since it is the Constitution’s own limit on a power that the Constitution itself created.
Its place is more exact than either. It is the highest layer of the written Constitution, ranking above every other provision, made binding by the Supreme Court’s final authority. It also stands at the line where amendment would give way to revolution. The Basic Structure is not India’s Grundnorm. It is the Constitution’s guard against a revolution dressed up as an amendment.
[1] Kesavananda Bharati v State of Kerala (1973) 4 SCC 225, 481 [651] (Hegde and Mukherjea JJ); AIR 1973 SC 1461.
[2] H Kelsen, Pure Theory of Law (M Knight tr, University of California Press 1967) 201–05.
[3] R W M Dias, Jurisprudence (5th edn, Butterworths 1985) 361–62, discussing H Kelsen, Pure Theory of Law (M Knight tr, University of California Press 1967) 201.
[4] Kesavananda (n 1) 1007 (view by the majority, signed by nine judges).
[5] Kesavananda (n 1) 481 [651] (Hegde and Mukherjea JJ).
[6] D Conrad, ‘Limitation of Amendment Procedures and the Constituent Power’ (1966–67) 15–16 Indian Year Book of International Affairs 375.
[7] Conrad (n 6) 396.
[8] Conrad (n 6) 423.
[9] Conrad (n 6) 416.
[10] Conrad (n 6) 420.
[11] Kesavananda (n 1) 408 [486] (Shelat and Grover JJ).
[12] Conrad (n 6) 388–93, discussing C Schmitt, Verfassungslehre (1928).
[13] Conrad (n 6) 387–88.
[14] Conrad (n 6) 387 n 34, citing BVerfGE 6, 309, 331 (26 March 1957).
[15] Conrad (n 6) 395.
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