Constitutional Falsehoods: The Fourth Judges Case and the Basic Structure Doctrine in India

Abstract

What impact does India’s acclaimed “basic structure” doctrine have on the text of the Constitution? Constitutional theorists have long neglected this question in favour of debates surrounding the implications of the doctrine on separation of powers, popular sovereignty and the role of the judiciary in a constitutional democracy. Over the years, the Indian Supreme Court has struck down multiple provisions of the Constitution on basic structure grounds. These provisions have formally remained part of the text, producing constitutional falsehoods—significant disjunctures between text and practice. By considerably extending the contours of the basic structure doctrine, the Indian Supreme Court’s decision in the Fourth Judges Case exacerbates the potential for these falsehoods. This chapter considers how these falsehoods have arisen, the attempts to redress them, and what they mean for constitutional interpretation outside of the courts.