Can the basic structure doctrine provide a remedy for the global democratic crisis?
On this Constitution Day, a look at how the basic structure doctrine has travelled from India to other countries in need of a guardrail against populism and majoritarian governments.
Swarati Sabhapandit
Published on: 26 November 2024, 06:26 am
THERE has been a longstanding debate on whether the judiciary or the elected government should have the ultimate authority in constitutional republics. This debate has been particularly prominent in the US.
In that country, the popular and administrative discourse often positions Congress as the true bearer of people’s will, thus giving it precedence over the judiciary.
Despite the overwhelming support for this narrative, Larry D. Kramer, in The People Themselves: Popular Constitutionalism and Judicial Review, argues that judicial review has established its preeminence in constitutional matters, albeit on shaky grounds.
The quandary lies in the predominant belief that by granting the judiciary the power to determine the constitutionality of legislative acts, the US risks undermining the federal compact of the republic and, perhaps, taking ultimate sovereignty away from the people.
Similarly, Rohit De, in his book A People's Constitution: The Everyday Life of Law in the Indian Republic, explores how the Indian Constitution, shaped by “elite consensus” and containing “alien antecedents”, became part of Indian democracy through the mundane experiences of ordinary citizens.
Although written in different contexts, the books emphasise the role of people in embedding the State (and its instrumentalities) in the everyday lives of citizens (through their interaction with the State) and, thus, expressing the Constitution as an act of popular will.
Simultaneously, they also prompt us to consider a fundamental debate that democracies are facing globally today. On one hand, the notion of popular sovereignty asserts that governments derive legitimacy from their allegiance to ‘the people’. On the other hand, the principle of constitutional legitimacy calls the supremacy of the constitution, the rule of law and the credibility of democratic institutions essential features of liberal democracies.
