A Constitution Without Constitutionalism

At the end of that sequence India had its Constitution, complete and unrepealed, and no constitutionalism.

What restored it

Two things, and the order matters.

An election. In March 1977 the government lost. That is a political fact and not a legal one, and it is the first answer to the question of what limits power.

Then law. The Forty Fourth Amendment of 1978 rewrote the emergency provisions: "internal disturbance" in article 352 was replaced by "armed rebellion"; the Proclamation now requires a written recommendation of the Cabinet; it must be approved by both Houses by a special majority within a month and lapses after six months unless renewed; article 358 was confined to war and external aggression; and article 359 was amended so that the enforcement of articles 20 and 21 can never be suspended.

And the courts moved. Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, struck down the clauses of the Forty Second Amendment that had purported to place amendments beyond challenge and to give the directive principles primacy over the fundamental rights, holding that limited amending power is itself a basic feature.

A worked example

Suppose a government wishes to postpone a general election for three years.

In India today it cannot be done by ordinary law. Article 83(2) fixes the House's term at five years, extendable by law during a Proclamation of Emergency by one year at a time and not beyond six months after the Proclamation ceases. To go further would need an amendment under article 368, and an amendment destroying free and fair elections would face the basic structure doctrine, democracy having been held a basic feature.

In the United Kingdom it could be done by Act of Parliament, and has been: the life of Parliament was extended annually during both world wars. Section 2 of the Parliament Act 1911 expressly excludes a Bill extending the maximum duration of Parliament from the procedure that bypasses the House of Lords, which means the Lords retain an absolute veto on exactly that Bill. That is the British answer, and it is structural rather than judicial.

In the United States it could not be done at all without amending the Constitution, because Article I section 2 fixes the term of Representatives at two years and the Seventeenth Amendment fixes the Senate's at six.

The cases

Facts. Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207, arose from habeas corpus petitions by persons detained under the Maintenance of Internal Security Act during the Emergency, at a time when a Presidential order under article 359 had suspended the right to move any court for the enforcement of articles 14, 21 and 22.

Held, by four to one. No person had any locus standi to move a High Court under article 226 for habeas corpus to enforce the right to personal liberty during the operation of the order. Khanna J dissented, holding that the State had no power to deprive a person of life or liberty without the authority of law even in the absence of article 21.

Why it matters here. It is the constitutional low point of the Indian judiciary and the clearest demonstration that a written guarantee is worth what the institutions enforcing it are worth. It has since been described as erroneous by the Supreme Court itself in the nine-judge decision in Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.

Facts. Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, challenged sections 4 and 55 of the Constitution (Forty Second Amendment) Act 1976, which had given the directive principles primacy over articles 14 and 19 and had declared that no amendment should be called in question in any court.

Held, by the Court. Both were void. The limited nature of the amending power is itself a basic feature, and a power to destroy cannot be a power to amend; the harmony and balance between the fundamental rights and the directive principles is also a basic feature.

Why it matters here. It is the legal half of the restoration, and it decides the second of the three routes above: an amending power cannot be used to remove the check on the amending power.

Distinctions

What beginners get wrong

"The Emergency was unconstitutional." Most of it was not, and that is the point. It was carried out through articles 352, 358, 359 and 368, and the courts largely upheld it. What followed was not the enforcement of the Constitution but its amendment.

"A bill of rights prevents this." India had one of the most detailed bills of rights in the world in 1975.

"It cannot happen where courts are strong." The Supreme Court of India in 1975 had already decided Kesavananda Bharati and was, on any view, a strong court.

Limits and criticism

The distinction can be used too loosely. Every unpopular measure is now described as a breach of constitutionalism. The idea is useful only if it is kept to the effectiveness of limits rather than to disagreement about policy.

Capture is hard to prove and hard to litigate. It leaves no trace in the statute book, which is why the constitutional response to it is political and journalistic before it is legal.

No design is proof against it. Article 79(3) of the German Basic Law is the strongest textual answer in existence, and it is a rule addressed to the same institutions that would be doing the dismantling.

Quick revision

1. Having a constitution is a question of form; constitutionalism is a question of whether limits work.
2. The gap opens by suspension, by amendment, or by capture.
3. India 1975 to 1977: article 352 on internal disturbance, article 358 suspending article 19, article 359 orders suspending the remedy for articles 14, 21 and 22.
4. Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207: no locus standi for habeas corpus; Khanna J dissenting; described as erroneous in Puttaswamy.
5. The Forty Fourth Amendment 1978: armed rebellion, written Cabinet recommendation, special majority within a month, six-month limit, articles 20 and 21 never suspendable.
6. Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789: limited amending power is a basic feature.
7. The first restraint was an election. The law followed it.

Test yourself

1. Explain, with provisions, how the Indian Constitution was used against itself between 1975 and 1977. A Proclamation under article 352 on the ground of internal disturbance brought article 358 into operation, suspending article 19; orders under article 359 suspended the right to move any court to enforce articles 14, 21 and 22; the Thirty Eighth Amendment made the President's satisfaction non-justiciable; the Thirty Ninth removed the Prime Minister's election from judicial scrutiny; and the Forty Second curtailed judicial review and declared amendments unchallengeable.

2. What did the Forty Fourth Amendment change, and why does each change matter? It replaced "internal disturbance" with "armed rebellion", so the ground is narrower; it required a written Cabinet recommendation, so the decision cannot be one person's; it required approval by both Houses by special majority within a month and set a six-month renewal cycle, so the legislature must keep re-authorising it; it confined article 358 to war and external aggression; and it removed articles 20 and 21 from the reach of article 359, so the right to life can no longer be made unenforceable.

3. Why is Minerva Mills the legal answer to the second route, and not Kesavananda? Kesavananda Bharati established that the amending power cannot destroy the basic structure. Minerva Mills applied that to the amending power itself, striking down the clause that said no amendment could be called in question, and holding the limited nature of the amending power to be a basic feature. Without it, the doctrine could have been amended out of existence.

4. Can a constitution be designed so that this cannot happen? Only up to a point. Article 79(3) of the German Basic Law makes certain amendments inadmissible and article 20(4) gives a right of resistance; India's basic structure doctrine does similar work judicially. But every such rule is addressed to the same courts, legislatures and executives that would be involved in dismantling the constitution, so the ultimate check is political: elections, a free press and an attentive public.