CONSTITUTIONAL IDENTITY: JUDICIAL DEVELOPMENTS AND NEW ERA’s APPROACH TO A PROGRESSIVE SOCIETY
Author: Eshanee Bhattacharya
Co-Author: Shashwat Shukla
ICFAI Law School, Hyderabad
India is a state with diverse socio-geographical spheres, different customs and practices, and prophecies. The Indian soil has witnessed histories like battles, wars, colonialism, and freedom struggle to build an entire nation which has given birth to a diverse population in the state. The rural-urban population of India’s hearts in people from different races, cultures, tribes, and religions each progressing its way in the society but also maintaining their practices, cultures, roots, and most importantly their identity. What protects these diverse spheres is the constitution.
This paper emphasizes the importance of the constitution and on the concept of Constitutional Identity. The nation has seen a lot of socio-political turmoil and developments before and even after the framing of the constitution. Hence, the focus of this paper is to identify the major political and legal developments which have revolved around the constitution without destroying the very sanctity and identity of the constitution itself. Various landmark judgments have evolved the concept of The Basic Structure Doctrine.
Humble attempts have been made in this article to establish a structure between the amending power of the parliament and constitutional identity. The views of eminent judges like Justice H.R. Khanna and Justice Dipak Misra on the theory of Constitutional Identity have been considered as an important aspect of the paper.
The paper brings out the trends of the judiciary to bring out the true essence of the concept of Constitutional Identity which is a philosophical jurisprudence of the sacrosanct basic structure doctrine.
Lastly, the paper also focuses on various landmark judgments that have paved a way to a progressive society yet upholding the fundamental concepts and identity of the constitution.
The Constitution of any country is the Grundnorm i.e. it is the supreme law of the states which lays the foundation of all other laws in the state and no one is above the constitution. Though it appears that the constitution of India, 1950 is neither too rigid nor too flexible in practice; it has been amended so many times from the day it came to existence. Such flexibility of the Indian Constitution has been often criticized as being the bane of our Constitutional System. Political and academic commentators keep on wailing about the incapacity of the government and the political class to govern in line with the Constitution as being the primary motive for the frequency of amendment. The Indian experience insinuates that political struggles find expression in the formal constitution amending process more readily than informal modes through which a constitution may be changed. The limit of flexibility embraced by a Constitution has to be balanced out by a strong need to preserve its normative characteristics as a higher law that prohibits temporary parliamentary majorities of the nation and the concern to preserve the sanctity of the constitution as a higher law is maintained.
Constitutionalism is a system of the government in which the governing power is limited by statutory and enforceable rules of law, and the concentration of power is limited by several checks and balances so that no basic rights of any individual and groups are not affected at any cost and hence are protected. It recognizes the need for a government with all the powers but at the same time, it insists that the limitations shall be imposed on such powers so that they are not uncontrolled and arbitrary. Whereas, the constitution is the fundamental law, written or unwritten, that establishes the character of the government by defining the basic principles to which a society must conform, by describing the organization of the government and regulation, distribution, and limitations on the functions of different government departments; and by prescribing the extents and manner of the exercise of its sovereign powers.
According to Professor Michel Rosenfeld, constitutional identity explains the variations in shaping the subjects, the contents, and the justification provided for in a given constitutional regime. In his opinion constitutional identity is linked to the fact of there being a constitution and the context within which the identity operates. The constitutional identity doesn’t need to require a written constitution, but the constitutional norms, including those created by customs and judicial precedents.
Since the constitution is the supreme law and above all laws it has certain features, certain structural aspects which are sacrosanct, cannot be touched and which form the character, the identity of the constitution itself. Just like every human being, states, government, and even objects have a distinct character and certain other elements that form its identity similarly even the Constitution of states have certain features that form its identity.
The objective behind understanding the jurisprudence of the Theory of Constitutional Identity is to strike a balance between the evolution of laws in the society and the ideas of the framers and forefathers of the constitution when they were framing the constitution. When a constitution is drafted the learned framers of the constitution had a certain idea, a certain goal to build the laws of the nation in such a manner so that every individual’s rights are recognized, a welfare society can be created and at the same time, certain duties of an individual towards its nation can be established. Law is an evolving and dynamic field it changes with the needs of the society and evolving thinking of the generation but what is important is that the judges while framing the judgment and advocates while framing their arguments must always remember that the identity of the constitution must not be touched.
The constitution is a continuing document hence any change in the laws should not destroy the basic identity of the constitution which will disrupt the continuity of it. Under the concept of identities, 2 kinds of identities can be discussed i.e. Identity of the constitution and Identities under the Constitution. The Theory of Constitutional identity arises when there is a legal, fundamental, and political problem between the interests of constitutional ideology and other social, religious, and national ideology.
Scope of Amending Power under the Constitution
Article 368 of the Indian Constitution gives the parliament the power to amend the constitution. The article lays down that the constitution may be amended by the parliament by way of addition, variation or repeal any provision under the provision laid down. Any amendment to the constitution would be initiated by a bill introduced in either House of the Parliament, the bill would then be passed by 2/3rd majority of each house, present, and voting, and the bill would have the President’s assent. However such amendments should not destroy the Basic Structure of the constitution. Although the Doctrine of Basic Structure lacks a textual base it can be concluded from various landmark judgments that the doctrine gives a certain character to the constitution and a definite identity to the constitution which makes it sacrosanct.
The Doctrine of Basic Structure emerged in the landmark Kesavananda Bharti case and evolved further in the Election Case and Minerva Mills case which further gave a structure to the limitations of the amendment to save the constitutional identity. From the works of eminent judges like Justice Y.V Chandrachud, former Chief Justice Sikri, Justice Mukherjea, Justice Hegde and Justice H.R Khanna from various landmark judgments certain elements form a part of the basic structure doctrine which are-
- The supremacy of the Constitution
- Sovereign, Republican and Democratic form of the government
- Free and Fair Elections
- Secular character of the constitution
- Separation of Powers between the Legislature, Executive and the Judiciary
- Federal Character of the constitution
- Judicial Review
- Rule of Law
Hence it can be said that the Constitution Identity should be conceived as the spirit of constitutional culture permeating a legal order. It represents the non-derogable core of the constitution which has a higher normative rank among other constitutional norms. The shaping of this identity and giving it a definitive structure lies in the hands of the judges, advocates, and lawmakers.
Contribution by the Jurists on the evolution of the concept
It won’t be wrong to say that the Basic Structure Theory and the Theory of Constitutional Identity form the backbone of each other. It is a very well-known fact that the doctrine emerged as a landmark judicial theory in the Kesavananda Bharti judgment and has evolved therein handing the nation the legacy of the ingenious work of the Judges.
In the words of Justice Mukherjee and Justice Hegde “Our Constitution is not a mere political document. It is essentially a social document. It is based on social philosophy and every social philosophy like every religion has two main features, namely, basic and circumstantial. The former remains constant but the latter is subject to change. The core of religion always remains constant but the practices associated with it may change. Likewise, a Constitution like ours contains certain features that are so essential that they cannot be changed or destroyed”. Therefore, the intention behind the framers of the constitution was to give the constitution a breathing spirit and preserve the ideals of the constitution for the generations to come.
The constitutional framework of India has witnessed the works of the courageous jurist Justice Hans Raj Khanna who firmly believed in the supremacy of the constitution and constitutional identity as a continuing factor to the constitution. In the landmark Kesavananda Bharti case he held that the constitution must survive without a loss in its identity. He said that “The word ‘amendment’ postulates that the old constitution survives without a loss in its identity despite the change and continues even though it has been subjected to alterations” 
Former Chief Justice of India, Justice Dipak Misra, known as the warrior of Gender Justice who has paved a way for a progressive society as rightly said “Constitutional Identity is Constitutional Personality that is changeable but is resistant to destruction. Parliament cannot destroy this identity but can change it”
Justice D.Y. Chandrachud, famously known for his progressive views and crystal clear authoring of his judgments believed constitutional Identity as a multi-faceted concept. Rejecting the notion of the Adhaar Bill as Money bill he held that “The Constitution also recognizes a multitude of identities through the plethora of rights that it safeguards. PART L The technology deployed in the Aadhaar scheme reduces different constitutional identities into a single identity of a 12-digit number and infringes the right of an individual to identify herself/himself through a chosen means. Aadhaar is about identification and is an instrument which facilitates a proof of identity. It must not be allowed to obliterate constitutional identity.”
Therefore we see that the concept of Constitutional identity has developed at great lengths over the period of time.
Judgments that paved the way for Constitutional Identity
The Kesavananda Bharti case held that constitution is a breathing document and that its’s identity should be maintained for its continuity. It was held that “…one must not use the constitution to destroy the constitution. Power of amendment cannot be such as to denude the identity of the constitution….constitution is a breathing document”. The Minerva mills judgment interprets the constitution as a legacy by the framers of the constitution that should be continued for the generations to come. Justice P.N. Bhagwati had beautifully explained the Identity Test wherein he believed that while analyzing the basic structure doctrine, the focus should not only be on any amendment affecting the fundamental rights but focus should also be given whether it is altering the constitutional identity or not. The case held that “…Amend as you may to meet the needs of your generation but the constitution is a precious document by the founding fathers, so its identity cannot be destroyed” The very famous Coelho Judgement which was regarding the 9th Schedule of the constitution affecting the basic structure doctrine expanded the scope of the doctrine and the M. Nagraj Judgement on reservations on promotions developed the nexus of the ‘essence of rights test’ and the ‘Identity test’, wherein the Supreme Court had included certain fundamental rights under the purview of basic structure doctrine. The court will inquire whether any amendment will violate the fundamental rights guaranteed under the constitution but also whether it is violating essential features of the doctrine itself.
The very historic Navtej Singh Johar the case further reinforced the concept. The Judgement unanimously held by former Chief Justice Dipak Misra, Justice D.Y Chandrachud, Justice Indu Malhotra, Justice R.F Nariman and Justice A.M. Khanvilkar not only developed the concept of Identity of the Constitution but also Identities under the Constitution. The case deals with decriminalization of the colonial Section 377 under the Indian Penal Code 1860 which criminalizes sexual activity between two consenting homosexual persons. The case has been remarkable and historical in its ways which goes beyond recognizing the rights of the members of the LGBTQIA+ community but also protecting the Rule of Law as a basic constitutional identity. The rule of law is the backbone of Article 14 of the Indian Constitution and treats all persons equal before the law. The case delved deep into the question of identity establishing and discovering the concept of ‘Constitutional Morality’ and ’Transformative constitution’.
The court had upheld the decriminalization of the section and held unanimously that Section 377 of Indian Penal Code was discriminatory as it failed to give the basic rights to persons of the gay community and such a discriminatory law deprived them of their Right to Life, personal liberty and privacy under Article 21, Rights of equality under Article 14, Discrimination on the grounds of Sex under Article 15 and Right of Speech and expression under Article 19 of the Constitution. It held that Sex includes Gender as well as Sexual Orientation and that gender expression is a matter of free speech. This verdict reinforced that no provision can be brought to cast a dent upon the constitutional identity.
The Judicial Developments and the opinions and observation of the judges we can conclude that the ideals of the framers of the constitution personified the constitution into a living and breathing document. The main objective behind the constitutional identity is continuity because a seamless interpretation of this principle has everything for all generations. Law is dynamic and it will always change with time, behavior, and needs of the society at a point of time hence, any change within the continuing framework of the constitution will always be welcomed. Laws should be changed with time but the identity of the constitution must be preserved and not destroyed at any cost.
 Anna Sledzinska Simon, Constitutional identity in 3D: A model of individual, relational, and collective self and its application in Poland International Journal of Constitutional Law, Volume 13, Issue 1, January 2015
 INDIA CONST. art. 368, cl. 2.
 Kesavananda Bharati v. State of Kerala, AIR 1973 S.C. 1461.
 Indira Nehru Gandhi v. Raj Narain, AIR 1975 S.C. 2299.
 Kihota Hollan v. Zachillhu, AIR 1993 S.C. 412.
 Subhesh Sharma v. Union of India, AIR 1991 S.C. 631.
 Indra Sawhney v. Union of India, AIR 1993 S.C. 477.
 Anna Sledzinska Simon, Constitutional identity in 3D: A model of individual, relational, and collective self and its application in Poland International Journal of Constitutional Law, Volume 13, Issue 1, January 2015.
 Kesavananda Bharati v. State of Kerala, AIR 1973 S.C. 1461.
 Hon’ble Mr. Justice Deepak Misra, Supreme Court on the Concept of Constitutional Identity, The CAN Foundation.
(May 1, 2020), https://www.hnlu.ac.in/index.php/students/call-for-papers-moot-court-competition-seminar-workshop-invitation-etc/1426-hon-ble-mr-justice-dipak-misra-on-constitutional-identity-can-webinar-uploaded-on-dt-26-04-2020.
 Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
 Ibid 5 note 3.
 Shivendra Singh, RESERVATIONS IN PRIVATE UNAIDED EDUCATIONAL INSTITUTIONS: LEGAL AND THEORETICAL REFLECTIONS, 53, Journal of Indian Law Institute, 72, 84(2011).
 Minerva Mills v. Union of India, (1980) 2 SCC 591.
 I.R. Coelho v. State of Tamil Nadu, AIR 2007 S.C. 861.
 INDIA CONST. Added by the Constitution (First Amendment) Act, 1955.
 Navtej Singh Johar & Ors. v. Union of India. Secretary Ministry of Law and Justice, W. P. (Crl.) No. 76 of 2016.
 INDIA CONST. art.21.
 INDIA CONST. art 15, cl. 3.
 INDIA CONST. art 19, cl.1, cl.