Interpreting without bannisters? The abstraction problem afflicting the basic structure doctrine

Abstract

The Basic Structure Doctrine, developed by the Supreme Court of India to protect the Constitution of India 1950 from undesirable amendments by Parliament, has seen tremendous growth in its 51 years of existence. This paper argues that despite its evolving scope, the doctrine suffers from an abstraction problem: it insufficiently addresses the abstraction level at which basic features should be identified. The judicial techniques employed to identify these features also do not adequately address this problem. A review of the Supreme Court’s application of the doctrine in cases involving a basic structure challenge to constitutional amendments reveals that basic features have been identified at varying abstraction levels. Consequently, this paper proposes a “stratification test” that categorizes the Constitution’s basic features and the facets of these features as two distinct abstraction levels. It argues that recognizing and stratifying varying abstraction levels is essential for effective constitutional dialogue, experimentation, and governance.