TWO questions arise in the debate on exempting 'the basic structure' of a democratic constitution from constitutional amendment. One is why is such protection necessary and the other is what constitutes the basic structure of a constitution.

Neither presents the slightest difficulty in the light of constitutional abuse in all the countries of South Asia. The power to amend is not a power to destroy. It is a power to reform or improve an existing constitutional system. This is particularly true of fundamental rights.

On May 5, 1964 the Privy Council held that Section 29-2 of the Ceylon (Constitution) Order-in-Council, 1948 embodying guarantees of religious freedom and the equality of all religions represented “the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which they accepted the Constitution, and these are therefore unalterable under the Constitution.”

In India the worth and necessity of the doctrine propounded by its Supreme Court in 1973 were proved only two years later; much sooner than anyone expected, driving even critics to accept it. On June 12, 1975 Indira Gandhi's election to the Lok Sabha was declared invalid by the Allahabad High Court. A fortnight later she imposed 'the internal emergency' on false grounds. It was a euphemism for dictatorship. Opposition leaders were arrested, fundamental rights were suspended, meetings were banned and censorship was imposed on the press.

The PM rushed through parliament legislation wiping out the judgment and amending, with retrospective effect, the electoral law on precisely the points on which she had lost. A constitutional amendment ousted the jurisdiction of the courts to try cases where the PM was involved and empowered parliament to set up an authority to decide such matters. No such law was made, of course. The result was a legislative validation of a disputed election leaving the aggrieved candidate no forum in which to contest it.

On November 7, 1975 the Supreme Court struck down the constitutional amendment, applying the basic structure doctrine. It accepted that the doctrine comprised the rule of law, equality before the law, separation of powers, free and fair elections, freedom of conscience, and the state's character as “a sovereign democratic republic”. The case won converts to the doctrine including two Supreme Court judges who had pronounced against it in 1973.

Meanwhile, in August 1975, another constitutional amendment was moved to confer on the PM immunity of the widest possible amplitude against criminal proceedings. It was adopted by the Rajya Sabha, the upper house, but was not moved in the Lok Sabha, thanks to the court's judgment in the election case. A few days after the judgment, however, a full bench of the court was constituted to review and discard the basic structure doctrine. On November 12, 1975 the bench was dissolved after two days' hearing. A move to convene a Constituent Assembly to write a new constitution for the authoritarian state was also dropped. The doctrine had amply proved its worth and usefulness.

In the 1973 judgment itself some of the judges had spelt out the elements of the basic structure. Federalism and “the dignity of the individual” were among them. From 1980 onwards the Supreme Court of India has reaffirmed the doctrine in a series of cases rendering it beyond challenge. Other elements of the basic structure are the power of judicial review, the independence of the judiciary, secularism and, most importantly, the doctrine itself. No constitutional amendment can negate it. If no such rulings were handed down in Britain or the United States, it is because no attempts were made in those countries to destroy the basic structure of the constitution. In public lectures three judges of high eminence in Britain all but endorsed the doctrine as a curb on parliament's sovereignty.

On November 15, 1994 Lord Woolf, later Master of the Rolls, asked what would happen if a party with a large majority in parliament used it to abolish the courts' entire power of judicial review. “If parliament did the unthinkable, then I would say that the courts would also be required to act in a manner which would be without precedent. Some judges might choose to do that by saying it was an unrebuttable presumption that parliament could never intend such a result. I myself would consider there were advantages in making it clear that ultimately there are even limits on the supremacy of parliament, which it is the courts' inalienable responsibility to identify and uphold.” He said these limits were of “modest dimensions”. He believed any democrat would accept them. “They are no more than are necessary to enable the rule of law to be preserved”.

In 1994, Justice Laws said “The constitution must guarantee by positive law such rights as freedom of expression, since otherwise its credentials as a means of honest rule are fatally undermined. But this requires for its achievement what I may call a higher-order law; a law which cannot be abrogated as other laws can, by the passage of a statute promoted by a government with the necessary majority in parliament....

“It is a condition of democracy's preservation that the power of a democratically elected government — or parliament — be not absolute. The institution of free and regular elections, like fundamental human rights, has to be vindicated by a higher-order law very obviously, no government can tamper with it if it is to avoid the mantle of tyranny; no government, therefore, must be allowed to do so.”

In 1995 Justice Sedley said that Dicey's doctrine of the sovereignty of parliament must give way to “a bipolar sovereignty of the Crown in parliament and the Crown in its courts, to each of which the Crown's ministers are answerable — politically to parliament, legally to the courts.” He said later “It is in parliament and the courts, each exercising a discrete though interdependent function of the state, the legislative and the judicial, that the sovereignties of the state reside.”

Britain does not have a written constitution. South Asia's countries do. The observations of the judges apply to us with yet greater force.

The writer is an author and a lawyer.