CONSTITUTIONAL IDENTITY

“....ignoring our commitments may make us rationale but not free. It cannot make us maintain our constitutional identity".   - Rubenfeld 

      The Supreme Court of India had long realised that in a society undergoing such fast social and economic change post independence, static judicial interpretation of the Constitution would stultify the identity of the Constitution. Accordingly, the Court gave birth to the doctrine of constitutional identity for fulfilling its obligation to act as sentinel for ardently guarding the fundamental rights and other constitutional rights bestowed upon the citizens by the Constitution of India.

     A Constitution does not ipso facto acquire an identity merely upon coming into being. It acquires an identity when time and again it successfully withstands the test of endurance. So was the case with our magnificent Indian Constitution.

Evolution of Constitutional Identity

The concept of Constitutional identity was developed to protect and preserve the dream that our founding fathers had conceived for an independent India, which could have easily been shattered if the Indian Constitution was not made resistant to its own destruction, by the very concept of constitutional identity.Students learn the concept thoroughly at Best Law College in Greater Noida.

The doctrine of constitutional identity, inter-alia acts like an antidote; in the event the power to amend the Constitution conferred on the Parliament under Article 368 acquires character of an autoimmune disease, wherein the immune system mistakenly attacks the body itself. To put it differently, when the power to amend the Constitution becomes destructive of the Constitution itself the constitutional courts have and will continue to use the inoculation of constitutional identity.

Supreme Court’s View

In the Indian context, the doctrine of Constitutional Identity became concretized in the epochal case of Kesavananda Bharati v. State of Kerala, when Justice Hegde and Mukherjea, while articulating the Basic Structure jurisprudence stated thusly:

“one cannot legally use the Constitution to destroy itself  […] The personality of the Constitution must remain unchanged”.

    Similarly, the then Chief Justice, S.M. Sikri observed:  

 “the expression ‘amendment of this Constitution’ does not enable Parliament to abrogate to completely change the fundamental features of the Constitution so as to destroy its identity.”

      This famously came to be known the Basic Structure theory. Thereafter, when the five-judge Constitution Bench of the Supreme Court in Minerva Mills Ltd. v. Union of India, was called in to consider the constitutional validity of the amendment to Article 31C of the Constitution. The Constitution Bench, yet again relied on the precept of constitutional identity.

The Court opined that the theme song of the majority decision in Keshvanand Bharati (Supra) was

   

“Amend as you may even the solemn document which the founding fathers have committed to your care, for you know best the needs of your generation. But, the Constitution is a precious heritage; therefore, you cannot destroy its identity.” 

Conclusion

Thus, the Court kept the flame of Constitutional identity alive Thus, the decisions of the Supreme Court in the 1970’s and 80’s, make it apparent that the theory of Basic Structure was an apparatus to achieve the end result, that is, to preserve the identity of the Constitution, which acts as the foundation upon which the edifice of the entire Constitution rests.

The aforesaid enunciations of law makes it graphically clear that the concept of constitutional identity which began as a safeguard born out of judicial creativity for protecting the Constitution from being destroyed by itself through constitutional amendments, has metamorphosed and has emerged as a substantial part of the affirmative rights conferred by the Constitution and thus cannot be allowed to be abrogated even for a moment.To become a professional lawyer and learn in detail about constitution, join LawCollege in Delhi NCR.