 stay healthy and let's observe this scruplessly. Now today's topic analyzes the basic structure doctrine which saved and protected the constitution's worldwide, especially the Indian constitution. I personally consider Justice Mudolkar as the real champion and unsung hero of the basic structure doctrine. Since his lordship was the one who profounded the doctrine in Surgeon Singh versus State of Rajasthan on 13th of October 1964. The recent judgment of the Kenya High Court in David versus Atani General delivered on 13th May, 2021, has provided abundance material for the constitutional experts to debate on the doctrine threadbare. Again, we'll come you to the seminar on this topic. We have with us today two eminent young speakers who would take us through the origin, scope and the limitations on the basic structure doctrine. Let me give a very brief introduction about the speakers. Mr. Gautam Bhatia is a lawyer and a legal writer. He studied law in National Law School of India University of Bangalore and the universities of Oxford and Yale. He practiced for four years at various courts in New Delhi and is presently completing PhD at the University of Oxford. He's the author of several books and his work has been cited by the Supreme Court of India and also by the High Courts of Bombay, Kerala, Tamil Nadu and Jaman Kashmir. Welcome, Mr. Gautam Bhatia. Thank you, thank you so much. Now, Mr. Siddharth Sijoria, I'm sorry, Mr. Siddharth Sijoria studied law in Amiti Law School, Noida, India and also Central European University of Budapest, Hungary. He practiced law under the guidance of late Mr. T. R. Andyarujina, former solicitor general of India. He's also panel advocate for the state of Maharashtra before the Krishna Water Dispute Tribunal. He's the author of several law articles and he has participated in many seminars. He's presently practicing before the Supreme Court of India. I welcome Mr. Siddharth Sijoria. Thank you. Now, I request both the learned speakers to take our decision. Thank you, sir. Thank you, thank you so much. So the way we're doing this is I'll start and I'll contextualize the judgment and talk briefly about it. And then Siddharth will bring a more comparative lens to the discussion and maybe after that, you know, we can have a conversation in Q&A and a discussion after that. So I wanna start by saying that, you know, when we think of quotes or prominent constitutional quotes from other countries, we often think of the US, you know, Canada and the UK Supreme Court earlier the House of Lords. Sometimes we think of South Africa, maybe Australia, but a lot of really interesting work happens outside these big name quotes as well. And one excellent example is the Kenyan judiciary, the High Court, the Court of Appeal and the Supreme Court, three tiers of the Kenyan judiciary. And that's not just the basic structure judgment that came out last week, but also last three or four or five years in very interesting judgments that have come out of the Kenyan judiciary. Just last month there was judgment on the right to housing and the right to access housing and right against eviction. So that judgment came out of the Kenyan High Court. It's called Mitu Bell. And then they had their own version of Adha litigation that took place a year or a year and a half ago. And there are other judgments of that kind. So that's a very interesting quote and some of the most innovative constitutional advancements are presently taking place in Kenya. So I'm glad this session is happening and their courts often refer to our judgments and there's a lot that we can learn from what they're doing now as well. And this judgment, in fact, is a good example of that. So I'll briefly first contextualize the Kenyan constitution and the facts that gave rise to this judgment. So Kenya like many other African countries gained its independence from colonial rule around 1960 or thereabouts. And all of these African countries had one round of constitution making at that time much like the Indian constitutional rafting in 1947 to 1950. But in many of those countries soon after that because of various contextual and structural reasons they lost their democracies and they became one party states or military dictatorships of various kinds. And so effectively their original constitutions became redundant, they were pretty much ignored. That state of affairs in many of these countries including in Kenya went on for not 20, 30 years. And then things began to change once again in the 1990s and the 2000s. So in many of these countries there was a second round of constitution making that took place in 1990s and 2000s. Countries like Botswana for example. Of course, South Africa is this famous example 1994 after apartheid ended. So if you look at the African countries a lot of their constitutions date back from either the mid 1990s or the 2000s because that was when they basically regained their democracy from the dictatorships or one party states and then started the process afresh. And so in that context the Kenyan constitution dates back to 2010 and it was the culmination of wide ranging political and public discussions even through a disputed election in 2007 and so on. So the 2010 is the date the Kenyan constitution came into being and therefore it's taken on board many of the principles and ideas that have come into constitutional thinking over centuries. And many of which are were famous and not had access to because there weren't still big ideas at that point of time. And that is something we'll see in the judgment. And one other thing is that the 2010 was the date of this constitution. And after that it's under the constitution you have these three tiers of the Kenyan courts the High Court, the Court of Appeal and the Supreme Court. And each of these courts is authorized to examine the compliance of statutes and so on with the constitution. So in that context let's take a quick look at the Kenyan constitution itself and in particular at the amendment process because of course that was at the core of the dispute in this particular case. So there are three constitutional provisions in chapter 16 of the Kenyan constitution that deal with amendment articles 255, 256 and 257. So 255 I'll come to in a moment but basically there are two ways or two processes through which you can amend the Kenyan constitution. The first is under article 256. This is the kind of familiar amendment process. So you introduce a bill into the parliament to amend the constitution and it needs a two thirds majority to pass in each house of the parliament, right? So this is something similar to the Indian process. This is something that's familiar across the board and so on. So that is the first method subject to some other qualifications that are not relevant for our purposes here. That is the first method of amending the Kenyan constitution. The second process is article 257 which is what they call amendment by popular initiatives. So this process is that any citizen or citizen group can propose an amendment to the Kenyan constitution and they need to collect at least one million signatures of registered voters. So you need to get one million signatures endorsing the proposed amendment. And then that amendment goes to that equivalent of the election commission which is the independent electoral and boundaries commission which verifies the procedural requirements. And then it goes to all of the county assemblies which is of decentralized administration. So various counties broadly equivalent to districts in the Indian context. So the county assemblies then approve off or reject the proposed amendment. And if a majority of the counties accept the amendment then it goes to parliament where a simple majority is required for passing it. So this second process of amendment is supposed to emanate from the people and then go through the various institutions like county assemblies and parliament. And if it passes through that then it becomes an amendment under the Kenyan constitution. But that's the second way the second way of amending the constitution. Now, there are two ways under 256 and 257. Now, there are a set of constitutional provisions in the Kenyan constitution that require an even higher threshold. So if you go through articles 256 or 257 then for most of the provisions once you satisfy the requirements of these two articles the constitutional provision that you want to amend will stand amended. Except for one group of provisions which for example deal pertain to sovereignty of Kenya or the Bill of Rights or term of office of the president or the judicial independence and so on. So that list of exceptional provisions is set out in the article 255. And if you want to amend any of these provisions then in addition to going through the two routes I just mentioned you have to also do a referendum after that. So basically within the Kenyan constitution you have two classes of provisions. One is regular provisions which you can amend through one of these two processes. And then you have these higher tier second level provisions which you require a further referendum to amend. So you can see that and if you look at these this clause of provisions this list of provisions it looks a lot like something like a basic structure. So you can see that even internal to the Kenyan constitution you already have a set of special provisions that require a higher threshold of amendment. So that is the broad structure of amendment under the Kenyan constitution which was what was the point of contention in this case David Nadee versus attorney general. Now the context of this case was as follows. Founder of Kenya man called Jomo Kenyatta. So his son Uhuru Kenyatta has long been governing Kenya as the president. But in 2017 the election between Uhuru Kenyatta and his opponent, Rela Odinga was very bitterly contested and there were widespread allegations of fraud, intimidation of voters and so on. In a remarkable judgment Kenyan Supreme Court overturned the election and ordered the second election to take place which was boycotted by Rela Odinga. So Uhuru Kenyatta became president without a contested election. But of course there's a lot of bitterness between the supporters of Rela Odinga and of Uhuru Kenyatta. So the atmosphere was very viscated. So in an attempt to get over this kind of divide in the Kenyan society, Uhuru Kenyatta and Rela Odinga embarked on what was called the golden handshake where they agreed to put aside their differences and come to some kind of unified understanding or consensus. And as a result of this consensus, the president proposed something called the Building Bridges Initiative, called the BBI. Now the BBI began life as a gazette notification that sought to investigate through a committee various issues around governance, policy making, laws and so on. That was how it began life. But by the end of the process, it had come up with a set of constitutional amendments which were of a wide ranging nature, altering the boundaries of the constituencies, changing the functions of the president, you know, and many other things of that kind. So they basically were basically what began life as an advisory body making recommendations about national unity and so on. Somewhere along the way, it became about amending the Kenyan constitution in a very wide ranging and far-reaching manner. So then they said that, look, this is now going to take the form of this popular initiative under article 257. So we shall treat it as if it came from the people. And they began gathering signatures and they collected around four million signatures. And then they began putting it to the county assemblies for vote as is prescribed by the constitutional text. Now at that time, a wide range of people challenged these constitutional amendments, ranging from individual people, lawyers, Kenyan law society. So very wide spectrum of individuals and groups who challenged these amendments as violating the process in the articles 256 and 257 and otherwise being in contravention of the basic structure of the Kenyan constitution. Now it's important to recollect that at this point of time, there was no such thing as an art, defined basic structure doctrine in Kenya. So this was the first case where that claim was, made in the context of asking the court to strike down a constitutional amendment. And also it's important to note that these amendments hadn't been passed yet. But in Kenyan constitutional law, you can actually, you are allowed to challenge something when it's still in the process. Because it will, I mean, if it's unconstitutional and it saves everyone's time. So it doesn't have to go through the whole process of becoming a law, you can challenge it even beforehand while it's still in parliament and while it's still undergoing the constitutional processes of coming into force. So this was challenged while it was actually still moving through the various, various gears in the Kenyan legal and constitutional system, right? So now this became the challenge. And of course there were various sub-challenges involving whether county assemblies can modify amendments or they can only say yes or no. If you say you want to have like, if you want to say amend five constitutional provisions, can you put a package deal where all five have to be given a yes or no vote or do you have to put each amendment separately for a yes or no vote? So there are many issues and total 17 issues were framed by the Kenyan High Court for disposal. And many of those are, you know, we can discuss them later in the interests of time and sticking to the main topic. I'll just consider some of the main issues. So now the history of the Kenyan constitution played a very important role in the court's finding. So I'll first maybe briefly describe the court's finding and then explain how the court arrived at that finding. So the court held that there exists a basic structure to the Kenyan constitution. But the basic structure is slightly misleading in this case because the court did not say that there is any Kenyan provision that is beyond amending power altogether. So if you look at basic structure in the Indian context, if you look at basic structure doctrine in other countries like Colombia or say in Germany where you have certain unamendable provisions in the constitutional text, basic structure means you cannot amend it under any process that is known or within the constitution. If you want to change that, there has to be a revolution or a coup or something. And then in any case, the constitution is dead, you know. So basic structure means you cannot touch those provisions. It's completely beyond the purview of the amending power, any legal amending power. The articulation of the basic structure in this case was not that kind of basic structure. So here what the court held was that there are a set of important crucial provisions that are basic structure and therefore cannot be amended under articles 256 and 257. So through parliament or through popular initiative and through referendum, you can't amend those. But there exists a third and even higher level process in which you go back to the people and you have to have a detailed four step process of educating people, spreading awareness, having a constant assembly, and then you can even amend those provisions. So basically it's the idea is that you don't need to have a revolution or a coup to amend the basic structure, but you have to go outside the institutions and go back to the people as a body if you want those things to be amended. So that is in a sense what the holding was. Now to arrive at that holding, there were basically two arguments that the court made, both of which were grounded in the specifics of Kenyan constitutional history. The first was what the court called a culture of hyper amendment. So what the court said was that ever since the first Kenyan constitution was framed, it was completely disrespected by presidents one after the other. And because the amending threshold was so low, every time there was something inconvenient that happened, the president would just get the constitution amended and get their way. And this was so effectively there was a complete lack of respect for the constitution. It was equivalent to an ordinary statute. And so it was degraded to the level of just being changed at the will of the executive. Now I mean, it's interesting because if you look at the Indian history, we've had 103 amendments in 70 years. And the example the High Court of Kenya gave us are 26 amendments in 35 years. So actually it's less frequent than the Indian frequency of amendments. But the High Court found that that entire, it was a culture of hyper amendment and that was leading to the degradation of Kenyan democracy and the Kenyan constitutionalism. That was the first argument the court gave. Second argument that the court gave and this is a more important argument is that it looked at the history of Kenya, one-party military state that existed in the 70s and 80s and which was finally removed in 1991. And it looked at the 19 year long process that led to the culmination of the constitutional sounding in 2010. So between 1991 and 2010, there's 19 years that took to draft and passed the Kenyan constitution. And by the way, interestingly, the main draftsmen of the Kenyan constitution actually is an Indian by descent. His name is Yashpal Ghai. He's Kenyan, but his ancestors are Indian. So he actually played the most major role in drafting the Kenyan constitution. So what the court found was that if you look at the 19 years that took to ultimately found and frame the Kenyan constitution, at each step, the importance of public participation and the public as a whole, citizenry as a whole was predominant. So there were multiple drafts that were put forward that required detailed civic participation. In fact, the one draft that the Kenyan elites tried to capture and then tried to pass through forcefully was defeated in a referendum by a 60 to 40%. So by almost 2,000 majority. And on the other hand, the drafts that finally came into the Constituent Assembly were the product of very extensive and substantive participation by the Kenyan public. And if you look at the history, this took place in four steps. First was what they call civic education where you educate people about what the constitution making process is about and what it means. Second is that public participation where the people give their views about the issues and give feedback and provide comments and their thoughts. And the third step is where you have public consultation discourse which kind of frames the issues through the representatives that are in the Constituent Assembly. So third step is having a Constituent Assembly. And the fourth step is then once you have a final draft then you have a referendum that needs to pass it. So that you take it back to the people and the people then have a referendum that decides to pass or not pass the constitution. That was how the 2010 constitution had been passed and that was how the entire history had led up to that point. And so the court then found, and so I'll quote this paragraph, it's Para 470 and this is the heart of the judgment. The court found that what we can glean from the insistence on these four processes in the history of our constitution making is that Kenyans intended that the constitutional order that they so painstakingly made would only be fundamentally altered or remade through a similarly informed and participatory process. It's clear that Kenyans intended that each of the four steps in constitution making would be necessary before they denatured or replaced the social contract. They bequeath themselves in the form of constitution of Kenya 2010. So this the court called primary constituent power. Primary constituent power belongs to the people as a constituent body. And that's as opposed to secondary constituent power which is a popular initiative where million signatures and then referendum. That's number two in the hierarchy. And the third is the constituted power which is the parliament's power to amend the constitution. So you may remember the Indian debates about the distinction between constituent power which is when parliament sits as an amending body under article 366 at 365. And vis-a-vis parliamentary legislating power. That was a debate in the Indian context. So that's something similar in the Kenyan context but they have three rungs. So one is the constituent power that exists outside of parliament and with the people. So if you want to alter the basic structure or damage or destroy as the phrase is or change that basic structure for that you have to go back to the constituent power which is the people. But if you want to amend something else which is not the basic structure then you can take recourse to the institutional provisions secondary constituent power or constituted power within the constitution. But that in a sense is the holding of this judgment. So and I said the really important part is that as opposed to say Indian basic structure doctrine or other countries in the Kenyan context you can actually change the basic structure but you have to go outside of parliament outside of institutions if you want to actually change that. But it's still short of a core of revolutions. It's still a prescribed process that involves public participation, public debate or public consultation and not someone of violent change that they want to replace the constitution. Now as in the Indian case the High Court also did not provide an exhaustive list of such basic features. It did however hold that in this case the alteration of the electoral constituencies and the attempt of the of the BBI proposed BBI bill to take power out of the hands of the independent electoral body and effectively allow the executive to dictate to that body how to its work. That was clearly a violation of the basic structure because of the importance of elections and a fair impartial electoral process to the very upholding of democracy. So then they struck down the amendment bill on the basis that it sought to alter this part of the basic structure and therefore it could not have come through anything but the primary constant part. So that in a sense is what the holding of the court and the reasons that it gave for its holding. But a number of other very interesting issues in the case for example, the court said that if the president himself proposes this amendment process that happened in this case then you can't say it came from the people. So the whole referendum plus popular initiative process and article 257 where one way of amending the constitution is by one million signatures that follow a proposal by the people that cannot apply if the president himself is the one who's kind of like tried to initiate this process because his power is of a different order. He's an institutional head. The president is not equivalent to an ordinary citizen. So if he is trying to influence, if he is trying to initiate and control the amending process then you can't say it's something proposed by the people that two very different things. So that was another the ground on which they struck down the amendments and so on. So and the whole judgment is around 320 pages but it's actually really, I think it's worth reading because there are so many issues and there are no wasted words. It's not that they go on on some story and which is not relevant to the actual judgment but they actually take up those pages to really go deep into the law and explain what they're doing. So that in a nutshell is what it's about and with that I'll hand over to Siddharth and we can come back for questions and discussion after that. Sorry I couldn't unmute myself. I think Gautam you have given a wonderful picture of the entire case and what was before the court as an issue and I'll just discuss how this judgment discusses certain elements to be basic structure and how the court define what is the basic structure and how do they come to the conclusion that certain features of the constitution cannot be amended and I will be giving a comparative perspective on some of the interesting aspects of the case. Firstly, how the court goes into the history of the case to decide whether certain features of the constitution can be amended or not. And secondly I discussed specifically on the idea of constituent versus constituted power as it was discussed in the case and then see how the Indian courts have discussed the issue of constituent powers and lastly I will discuss on what Gautam talked about popular initiative and how in this case this should have been called as a abuser of constitutionalism what one constitution scholar David Landau calls it. So firstly, how like Kenya as Gautam explained had its own experiences with constitutions is 1963 and then finally they had so many hyper amendment situations where ultimately in 2010 a new constitution came into existence. So all throughout the history of the constitution of Kenya we saw as it was given in the judgment that the Kenyans have seen one party where corruption and political permanency was established in the country and the people wanted to change the entire system where people could become the sovereign in the real sense of the term. And unlike India where the basic structure doctrine was derived from the scope of the word amendment in article 368, the Kenyan constitution derives the power of the amendment and calls something basic to the constitution because of the history because in 2010 and before that many of the constitutional amendment bills or constitutional review code which were introduced they all focus on introducing public participation and more focus on why people should be more informed and people should be given a chance to put forward their view on the amendment and on the structure of the constitution. So like Gautam explained that basic structure doctrine in the Kenyan constitution was derived from social history of the constitutional making. Now this is also not something which was very unique to the Kenyan constitution making because if you look at the judgment of a Colombian basic structure case or another African country being in when they discuss and they talked about the basic structure case and that in their country, the court have focused on why, for example, in Colombia when they were introducing changes to the constitution 91 there was a national consensus against corruption against the permanency of an individual into power and they wanted to, they relied on the theory of constitution making history today to discuss and to say that the amendment which was introduced in Colombia that wanted to introduce new term limits to the, for the president, Uribe in the constitution that would have made him to be there in permanently. Similarly in Benin, there were certain amendments which were introduced by the parliament where they wanted to increase the term limits for the president and they also wanted to increase the tenure of the parliamentarians. There also the court have gone into the history of the constitution making and how the national consensus against permanency in office was considered to be something which is against the very idea of the social history or the constitutional making history that was incorporated in the original constitutional text. So as we see in many other countries as well, the courts have relied on the idea of social history or the constitutional making process to be one where we see that basic structure has to be inferred not from the text of the constitution itself but also to be inferred from the way the people have adopted the new constitution and what was the intent of the people or the national consensus while adopting the constitution. Now when we look at it, how we see it in India we haven't had any experience with the constitution. We have had one constitution throughout and we have seen that in India when we were introducing the basic structure doctrine in 1973 in the famous Kishanand Bharati case we did not have something else to rely on. So we discussed the ambit of the word article 368 to discuss what is the contour of the amendment and how does amendment of the word amendment itself does not mean to change the very structure of the constitution. And secondly, something that was very interesting from this perspective was how the courts have discussed that there are three ways to exercise sovereignty. Firstly, by primary constituent power that rests with the people of Kenya and who reserved the ultimate right to remake the constitution or remake it. Secondly, when the court says that then there is a secondary constituent power that has to be exercised in terms of article 250, 255 and 257 where people have been given more preference over remaking of the constitution in the parliament itself. And the thirdly, how the constitution can be amended by constitution can be amended by only passage of amendment built by the pion itself without involvement of the people. So these were the three issues, these were the three basic points that the court took into consideration while reducing the basic structure doctrine within the Kenyan constitution. And this was something that I found when I was reading Indian constitution or Indian constitutional law cases. I found out that in model and also in many other constitutional cases where today in the model constitutionalism where basic structure theory is adopted in many jurisdictions as a important mechanism to keep a check on the parliament and the executive that they distinguish between the power of the parliament as a constituted body and the other, the constituent power that resides with the people. But when we look at in India from 19, like in Kishan and Bharati case or before that, even in Gholaknath or even in the very text of 368 where parliament has been described as itself the constituent power. So there has not been any discussion in any of the constitutional law cases where they have actually distinguished between the constituted power or why the parliament is a constituted power and hence is power to amend the constitution is a limited. But the court have gone ahead and described that the parliament is a constituent power and it hasn't discussed in any of the cases in India where it is the primary constituent power that parliament exercises or it is the secondary constituent power that the parliament exercises. So what the courts throughout Kishan and Bharati is until the very last case I've discussed and has followed is only this that the basic structure theory is something that limits the power of the parliament who is itself a constituent body. And there is no limitation as such but you have to focus and you have to by reviewing the constitutional amendment the judicial role is restricted to discover whether the identity of the earlier constitution has been replaced or it has still intact. So I think when we look at Kenyan judgment and when we look at the Indian cases where basic structure has been discussed I think the very reason for adopting basic structure in Kenya is very different from what we have. Like there are a lot of common element for the basic structure doctrine and the very reason for adopting it is very similar to what is in India but the doctrinal basis for saying that basic structure theory in India is very similar to that when adopted in the Kenyan jurisdiction is very different because in India the constituent the parliament has itself been described as the depository of constituent power even article 368 of the Indian constitution that starts with the not understanding anything in the constitution, the parliament in exercise of its constituent power. So I think what has not happened in India until now is a discussion on the very word and what is the extent of the, what is the very nature of the parliament whether it exercises derivative constituent powers or it exercises constituent power or there is a limitation on the power of the parliament because it is a constituted body. So I think there is this distinguishing feature between the Kenyan case and the Indian case and like Gautam pointed out earlier that I think one of the interesting features of this case is that the court makes a very important point that the primary constituent body which is the people have the power to make the changes of the constitution and it can remake the constitution by having a constituent assembly and the constituent assembly would have to follow the public participation rule. I think what the court also does in this case is that they limit the constituent power itself by making a way of exercising that primary constituent power because now I think what the court have done is in this case, from my understanding is that court have actually, I think I have not come across any judgment or anywhere else in any court where the exercise of primary constituent power itself is restricted. So this is very new feature and I must appreciate I think this is one of the most interesting feature of this judgment because I think the court have itself started by saying that we will focus on our transformative constitutional definition and I think the court have relied on the interpretation that the structure of the Kenyan constitution in the way it has moved forward is by adopting transformative interpretation of the constitution and I think this judgment is very interesting because unlike other cases where the primary constituent power is unlimited and you can think of situation where people come out and there are riots everywhere and then there is a mob rule that can be initiated but this judgment actually precludes that from happening because I think by introducing the concept of public participation as a way to exercise to reach primary constituent power is very necessary and something which should be studied. And I think third interesting point that I found in this judgment was with concerning the idea of popular initiative which I think Gautam pointed out very clearly how the court in one of its paragraph called out that president cannot be the referee and the runner in the same game or he cannot be the cricket player and the umpire in the same game. I think that was very important feature of the judgment because I think there was the, like I think Gautam in his article discusses the constitutional silences and this was one of the constitutional silences that was being abused by the very process of introducing a BBI, this building bridges because what the argument of the respondent in this case was that the argument of the respondent that the government said before the court is this that look, there is no limitation in the constitutional text that you can only initiate a popular initiative by individual private citizen and even the president in its capacity as the private citizen can introduce changes and can initiate the popular initiative as contemplated in the article 257. I think that the court made a very interesting argument by relying on article one and reading it together with 255, the amendment chapter where they said that parliament, like the people exercise their sovereignty directly or indirectly and article 257 where the popular initiative right is being given to the citizens that can only be exercised by individuals, citizens who do not have direct connection or who do not have a say in the parliamentary amendment procedure as given in the article 256 and 255 where the people cannot directly participate in the amendment procedure. So I think this was one of the, I think this was one of the important part of the entire judgment where they have said that this phenomenon of popular initiative which is very new as the concept of their citizen, the representative of people cannot become ultimately the beneficiary where they can abuse what the court also said was a technical subterfuge of the constitution or misusing the constitutional provisions. So I think this was very interesting from the perspective that the court actually looked at the usage or abuse of the constitutional provisions by initiating something called the building bridges and completely derogating the constitutional terms. So I think this is also very interesting because in modern constitutionalism, in many of the constitutional courts, the court uses the idea of abusive constitutionalism where the court actually looks at the intent and how the courts, how the executive act function to start or initiate an amendment. For example, like I'll give you an example of Columbia where the constitutional court was supposed to, where the constitutional court was supposed to review an amendment to the constitution where the president has gone ahead and introduced amendment to the constitution where he exceeded the number of term limits on his presidential term limits. For instance, in Columbia, the only two term limits were allowed to the president and he introduced another term limit which was seen to be problematic by the courts and what the president did in that case was that he referred that question to the referendum and referendum in the referendum. So even in there, the court said that the people, like in the Kenyan court where the people, where the court have said that referendum cannot be a mechanism to look at whether the people have actually exercised their sovereign will or not because in a referendum, the people only answered by yes or no in a vote. And ultimately, it is the parliament who gets to translate the original will into a legislation. So there also the courts have found problem with the idea of a referendum like we have seen in the Colombian case. So altogether, I think it was interesting case and there are more, but I think there's another interesting feature in this judgment that I wanted to reflect upon was the idea that the court have said, like I guess Gautam also pointed out that the court have not list out what is basic feature but they have given that it is not an exhaustive list but an illustrative list. But I think where the court have said that they have also reserved the right to declare a particular clause that is an eternity clause. That is also very interesting feature because that eternity clause are mostly defined by the constitutional makers at the time of constitutional making. But here the court have reserved the right to actually declare a provision of the constitution to be there for eternity and they have given some examples. But that could also be very interesting to see in future how the courts are going to or how the courts are going to look at it and how the court can actually go ahead and declare something like this to be the basic features of the constitution. So I think this was, I think after Gautam has made a wonderful introduction in the answer of the case. This is what I wanted to make my contribution from a comparative perspective. Thank you. Mr. Baskaraj. Yeah. I request Mr. Mohan Katarki sir to interact with the learned speakers. Kindly unmute yourself Mr. Mohan. Mr. Vikas, can you kindly unmute him? He's also an institution. The way he takes things forward. Mohan sir, you will have to unmute yourself. Unmute. Okay. Yes, yes. Is it okay now? Yes, sir. Okay, thank you Mr. Baskaraj. May I first congratulate both Gautam and Siddharth for excellent presentation on the very first principle of the law that is who has the power to amend the constitution, who makes the constitution. We always study as a part of basic structure that is how it is taught in the Indian law schools. But this judgment of Kenya throws up on some new questions that what is the relationship between the state and the constitution? In the Keshan on the Bharti case, these things are sought to be discussed, but the court did not go beyond certain limits because judicial body has to interpret the constitution as it exists. And it found an easy way of putting a limitation on the amending power by implying basic structure doctrine with an article 368 of the constitution. This is by an interpreting process, right? The court also hinted that if the constitution has to be changed outside the legal process, it can be done by a coup or a revolution. We all know as a student of international law that international community is not going to ask you the question whether the new government which has come into place has come into place by a constitutional method or not. If there is a government which can effectively exercise its sovereign power, and if the international community is satisfied that this government is indeed exercising a power, then they will grant recognition. And that's how the rule of recognition in international law create a state, okay? And so far we have seen many states which have come into picture in the international field, except only one state that was in Afghanistan, Taliban was functioning as a state without being recognized by any power in the world except its friend Pakistan. Leave it aside. Now the Kenyan constitution takes forward the doctrine of constitution power and says that there are two layers. One is the simple amendment by the parliament, the legislative body. Second is by the people that is by referendum. Now the Kenyan Supreme Court interestingly has invented a third layer or a third run. It is a completely judicial invention like our courts are invented, the EGM system in the selection of judges like that they have invented a completely new process where they say something which is very basic to the existence of the Kenyan constitutional order can be amended by only the people by following the procedure which is something different from the referendum which is already contemplated in the constitution. So that as a result, the constitution power in the Kenya which was vested in the parliament and the people by way of a referendum is now vested in the people again of course but by different procedure that is by consultation and do various things and that is a elaborate process. Okay, so this is a new invention. I don't know whether our court would any time have a would consider this as a process to amend the basic structure. If at all the basic structure becomes necessary to be amended by the people, okay? So my only point is that the Kenyan Supreme Court by inventing this third layer has attempted to constitutionalize extra legal or extra constitutional change, right? So that's all I can say and whether this is right or wrong is a different question but as long as the people of Kenya accept the judicial verdict, it is right. It may look strange to us that by judicial fiat, by judicial decree, a one more layer of amendment of the constitution is created. Yeah, how do you reflect both of you? Thank you very much. Yeah, no, I think that first of all, it's, I think first of all, I think that everyone knows the story isn't over yet because after this high court judgment there's going to be the Court of Appeal and the Supreme Court now. I mean, I don't know if the relevant parties will appeal but I expect that they will appeal and so you will have like at least two higher courts reviewing this judgment. I think that it will be interesting to see where this process takes us forward. Now, on the issue of inventing a new doctrine. So I think that again, see, I obviously am not an expert on Kenyan constitutional law. So I'm speaking as an outsider who's read the judgment and generally interested, it'll be interested in a while in the Kenyan in Kenyan constitutionalism. So I think what struck me really about this judgment was that the two things. One is that the court took great pains to actually locate its argument in a social history of Kenya. So it wasn't as if the court just said that there are certain provisions that are so important and so primordial that hence we declare that from now on there is this primary constitutional power. The argument was located in a historical context that in the court tried to show that there was a certain idea of public participation that was fundamental to the Kenyan constitutional imagination. Now, I think that whether it's right or wrong is something that Kenyan historians would be best positioned to answer because history is always controversial and specifically when a court makes historical claims, there's always ground for objection and I'm sure that there would be scholars who would say, look, the court's articulation of Kenyan history is flawed, it's one sided, it misses important points and so on. So I think that that's a debate that I can't answer and ultimately I would be interested to know what Kenyan historians and constitutional historians have to say about that. But for me as an outsider, what's interesting is that they make this serious attempt to say, look, the reason why we are saying this is because there's always been this idea of primary constitutional power in the Kenyan constitutional imagination and our job as the court is to basically bring it out. So we are tapping into our history to kind of make this argument. And the second is, I think, and this is also really important is that Kenyan High Court does not stop at saying, oh, look, here are these provisions and future possible provisions, which now are not going to be touched by anyone. And if you want to change them, like go have a revolution, go have riots, then in any case, when you have a revolution, courts don't really exist anymore, right? So the court doesn't stop at that. The court actually says, and as Mohan Sir rightly said, the court uniquely kind of gives this process and it says this is how, if you do want to amend the basic structure, here is the process you have to follow. And presumably therefore, in say a future scenario where there is an attempt, say in Kenya, maybe like five or 10 years later to follow this judgment and to try and amend a basic structure provision by doing that four step process of going to the people, civic education, awareness, consulate assembly and referendum, then that itself might be challenged before the court saying, look, but you haven't actually followed the correct process for amending the basic structure. And then there will be a second judgment that says a judicial review of whether or not they correctly tried to amend the basic structure or not. I think that there are many, many possible issues that going forward may arise. And I think that you are right when you say that, ultimately the proof of the pudding is in the eating. So if this judgment, the best way of answering whether this judgment is right or wrong is maybe the verdict of history. Whether it's sustainable, if it's possible going forward, whether people respect it and whether actually this becomes something that's workable, it's something that only history can answer. So that if you want to add to that. Like you were asking in relation to India, supposedly what happens in India, I think when I was reading as also only on the basis of doctrinal comparisons of different judgments, I think in India and in Kenya, like on the first instance, we see that the judgment goes into the entire process in the very beginning, how the constitutions in 1961 faced certain problems and then how there was an era of hyper amendments and then later on one single party rule has reduced the country to nullity and how because of the problem with the constitution that people face finally since 2002, there were many attempts to revisit the constitution and how public participation has become one of the key criteria to determine whether people's involvement in the sovereign body was reflected in an attempt to amend the, because if you look at what BBA tried to do here was to introduce changes, not only to one or two provisions of the constitution, but to at least 13 to 15 chapters of the constitution. So it was like, at the first instance, it was like re-enacting the constitution. So sometimes I think this was one of the important aspects of the constitutional amendment that were being sought to be added and without public getting to know what is being done to the constitution because the judgment at length discusses how the reports of the constitution review, the sorry, BBI was only made available online and people, the indigenous people or the people who couldn't read because of their blindness, they were not able to read the impact of what this might lead to. So when you look at Kenya, the reading of primary constituent power with the people is reflected from the history because if you look at how people involved in the constitution making process became important for any form introducing any changes to the very nature of the constitution. But when we look at Indian India, I think the very origin of the Indian constitutions, democratic origins are challenged because our constituent assembly when it was drafting the constitution, there was no direct involvement of the people as such in the constitution making process and even the elections of the constitution member were erect indirectly through the provinces. So I think doctrinally what India has been able to sustain is that it has been able to prevent any misuse of the abuse of the constitution by a manual process. If we look at several judgments throughout, but I think the introduction of a new layer in Kenya was reflective in the history, but in India, the tomorrow, if they would want to introduce that primary power resting with the people, then I think there would be a lot of, I think there would not be any social history to show that people's involvement in the constitution making is what I would look when comparing the two cases, India and Kenya. Thank you very much. All I can say is that the new procedure which the Kenyan court has created and if that gets endorsed by the higher court in Kenya, this is the beginning of the process of constitutionalization of the constitution power itself or people's sovereignty which is vested in the people, it is the way of constitutionalization of that. How far it is successful one doesn't know, but still it doesn't prevent, it doesn't prevent a revolution or a coup if it takes place. And if the international community were to recognize that revolution and grant recognition to the state of digital recognition, then the new region can still come in, outside all this, even in Kenya itself, okay? Thank you very much. A lot of Kenyan participants today, that's a very fascinating fact. And we have Joshua Gould who is studying in the Rangabad itself, Dr. Ambedkar University. So we are unmuting him to have his insights and he's saying that two, three lawyers from Kenya would also like to share his knowledge. Yeah, Mr. Board. Mr. Basraj. Yeah, I can see a few lawyers from Kenya and the African continent. You said some, one of the judges- Yeah, he had shared with me that some general counsel that is Yvans Hojada will share and he's also there, Mr. Board is there. We're asking him to unmute himself, to show. Yeah, yeah, I'm sure he's going to share for inviting me. I need to. Yeah, I'm sure you're sure. Yeah, thank you so much for inviting me to this webinar. I'm so glad to be part of it and I've invited some advocates and lawyers and I let them give their perspective. I don't know if advocates, Alicia Ongoya, the counsel advocate, Alicia Ongoya can be able to give a brief perspective on this. We need to unmute him. The host will have to unmute him for that. Yeah, he's just saying he's muted. Yeah. What are you saying, you're going to unmute? Alicia Ongoya. Yvans Hojada. Yeah, we are asking Yvans to unmute. Oh, good evening from Nairobi. My name is Yvans Hojada. I was involved in the matter for one of the petitioners in the BBI matters. Now, specific, can I be heard? Am I clear enough? Now, thank you very much. In terms of the basic structure doctrine, you will understand my predicament. The matter is going up on appeal. So I'll be very much constrained in terms of what I will say. In terms of general concerns from being appellant, in terms of their appeal points, they say that the basic structure doctrine is basically an emanation from India and that this concept was born in a context where the parliament and the Supreme Court had differences. And they say that the margin of determination for the case of an under case was a very slim margin. Another issue that is being raised with the basic structure doctrine is the indeterminacy with which the court tried to conceptualize it in Kenya. It is indeterminate to know what exactly is the basic structure. How can we identify the basic structure? And the concern is that we may in the future have what they are calling judelistic legislation in the sense that courts will begin to legislate and determine what the basic structure is. So those are the concerns being raised. And we don't know what will come of it. Let's see what you're saying, especially at the appellate level. It was reflecting that the bandwidth is quite low. So Mr. Basraj, any other questions or? We'll ask once again. I think they wanted you to unmute Mr. Alisha, Mr. Alisha, who I can see on my window. Okay, we'll do it. Yeah, I can see him. I think we have done it. We have done it. Hello, can you hear me? Yeah, please go ahead, sir. Thank you, thank you so much. Just a few reflections. Number one, it's important to note that this is not the first time. I'd like to see you in the video. You can start the video. Sorry. Yes, sir. Can you hear me, I'm sorry, I'm in a bit of a sunny environment. Good to see. Thank you, thank you so much. So I was saying that this is not the first time that courts in Kenya are invoking the basic structure doctrine to assert the constituent power of the people in the constitution making process. This happened way back in 2004, in the now famous case of Reverend Timothy Ingeoya and others versus the attorney general, when Kenya was making its earlier attempts to overhaul its constitution, which is one of the historically accountable processes culminating into the question of Kenya 2010. You remember at that time, there was a process in motion to undo and completely redo the constitution, which was potentially ending up at the constituent assembly, which in Kenya, an historical panelist called the Bournemouth Conventional Conference. That was Kenya's constitutional assembly at that time. And the court then led by Justice Aaron Getonga-Ringera asserted that the people had a constituent power to do and undo their constitution, and that could not be delegated, meaning that people could only exercise that by way of a referendum. So a referendum became a mandatory feature, a mandatory feature in Kenya's constitutional making process through the judicial intervention in the Ringera case. I'm just emphasizing this to emphasize the fact that the growth of Kenya's constitution has had significant inputs from judicial intervention, and this is one such judicial intervention that is aiding in the growth of the constitution. For me, the most important thing about this is that it re-centralizes the role of the people. It brings to the center the role of the people in the process of doing and undoing their constitution. Somebody mentioned about Kenya's history. Kenya has a very strange history with its constitution. Between 1964 and the year 2010, when Kenya and did its old constitution, there was consensus that political elite recognized the original. So what courts are doing, no, political elites can no longer saying that the people are still creating massive civic awareness, then people's participation through constituent assembly, then people's participation through a referendum, particularly where they're, and this court attempt encapsulates the core values article 10, a complete catalog. Time the court is invoking this document, it will have been advised to give what it's called a complete catalog of it, that they're moving into the future. If you touch on the provision, then that will be civic education, ultimately. There's an issue of the bandwidth out there on this. Yeah, Mr. Vashrach. Yeah, one question to Mr. Gautam. See, from what I understand from the entire speech, is that the Kenya High Court does not say that the basic structures cannot be amended. Yes, more of a procedural propriety and impropriety that is re-clogged in the entire judgment. Am I correct? So you're correct on the first bit that it does not say that you cannot amend the basic structure, but the threshold that it puts, I think is more than procedural, it's a very substantive threshold. So the four-part test, civic education, public consultation, constituent assembly, and then a referendum. I think that is a mix of procedure and substance, because as Siddharth said, like one of the whole issues in this case was that they only put the bill in, I think English language, I'm a little hazy now on the details. So one of the reasons actually was that they didn't actually make the bill available in all the languages and available so that visually impaired people could access it in Braille because Braille is actually really consciously recognized in Kenya, what I get from the judgment was that. So I think it's the threshold that they place on amending the basic structure is a very high procedural plus substantive threshold. It does not categorize the basic structure, like we have like secularism, democratic form of Kormans, et cetera. It does not categorize. It does give indicators, it gives indicators and one of the things that it talks about is a free and fair election. So the attempt to alter the constituency boundaries and to try and bring the IEBC, the independent electoral body, under the control of the executive, which is under article 89 of the Kenyan constitution. So it does say, for example, article 89, which deals with electoral boundaries and the process of elections, that is part of the basic structure and give some more examples. But I think like in the Indian case, it does not say, okay, here is a list, and henceforth this is the list. Yeah, so that's one thing it doesn't do. I was speaking to Mr. Siddhar. Of course, this is a peculiar situation. The Pakistani Supreme Court rendered almost 1,000-page judgment, most of which is in Urdu, as Mr. Siddharth said. Said that you invented basic structure because you fought with Srimit Indira Gandhi. You had a tug-of-war with Indira Gandhi, therefore you come out with, we don't have that problem. Therefore, they almost rejected the basic structure doctrine in Pakistan. That is number one. Second one is the martial law is not provided in the constitution. It's a judicially invented on the basis of doctrine of necessity. So these two things I just wanted to, I had this doubt for a very long time and this is the item I should get it clarified. Number one, they rejected it. Second one is how can the doctrine of necessity provide for martial law, which is not there in the constitution and get a judicial approval of it? Yeah, I think the doctrine of necessity, I mean, Siddharth may correct me if I'm wrong. I mean, I think it's a subterfuge. You know, it's basically, it's a classic example. It's a bit like the judgment in that famous, in that famous British case in which Lord Atkin had the dissent. I'm putting the name right now. Libyans, Libyans, Libyans Anderson, yeah, yeah. Where basically, I mean, the court figures out that look, it's not going to be able to interfere and if it does, it's not going to be respected. So the court has to somehow salvage its own authority in that situation. And so it invents something, like doctrine of necessity is one of the examples where the court arises that look, I mean, if it goes against the government, that will be the end of it as a court. So it needs to then cook up something. So I think necessity is one of those examples. And you'll find that, I think all over the world, courts have often done that when they are faced with a situation in which they clearly have no real choice in the matter when the government is very aggressive or very powerful, and there's not much that courts can do. So I would say that necessity belongs to that category of judicial inventions. And there's a joke that whenever the president military coup took place in Pakistan and whenever the president was supposed to take a vote of the constitution, there was a joke that they already destroyed it. So like there's no constitution, they already destroyed the constitution. So that is where the doctrine of necessity comes in. And their comment that you fought with the government and you came out with this, of course, there was a need for that. And that was the right moment when the government allegedly tried to destroy and tamper with the government. And I think what happened with this basic, sorry, this imagine to answer Basara's question, see what happened in Pakistan in mid 50s when the first time the military rule was imposed, that was the martial law was imposed by issuing a decree suspending the constitution of Pakistan, right? And it was challenged in the court. And the court sustained the suspension of the constitution based upon the doctrine of necessity. They did the sit withering away. Then they said a military takeover of the power by martial law is a necessity to protect and preserve the state. That's how the Pakistan put it. The second time when Musharraf did the same thing, the same procedure he adopted, he issued a decree suspending various provisions of the constitution which were unsuitable to him for excessive of his power and grabbed the power. That was again challenged in the American, sorry, the Supreme Court of Pakistan that the Pakistan invented a new theory as if they are sitting as a superpower over the martial law. They said that under the doctrine of necessity, you can have a martial law, but for a period of two years. As if beyond two years, the martial law cannot remain. Okay, but as a matter of fact, whether it can remain or not, but at the moment the Pakistan military has accepted a limited judicial review of the imposition of the martial law, which is extra constitutional, but under the doctrine of necessity, it has been accepted. This is how I believe it happens. And while discussing this case in 1956, the first time the question of basic structure also discussed by the Pakistan Supreme Court. One English judge of the Pakistan Supreme Court referred to Kuli. Kuli refers to the American case where in a federal court in America, this basic structure was first discussed, basic features, but the Supreme, the lieu against that was not granted by the US Supreme Court. But that principle which Kuli discusses is a treatise of constitution, was cited by the Pakistan judge in 1956, which was picked up by Mudolkar later in India in a proper shape. That's how I understand, okay? Thank you. One more question to Mr. Gautam and Siddharth. Now this is again bothering me. Now the argument suggested in Shankari Prasad and Sajjan Singh that, at least in Sajjan Singh, Justice Mudolkar pointed out the basic features. The Golaknath rejected, the majority judgment of Justice Subara rejected the Dr. Naab basic structure, saying that courts cannot supervise every amendment, whether it gels with the constitutional framework or not. But the Golaknath had the test of article 13.2, article 13.2 vis-a-vis the fundamental rights. Now ultimately the Vaman Rao had some sort of a touch and go scenario, which ultimately landed on the lap of the Supreme Court in Kohelo. Now Kohelo identifies three triangles, a golden triangle, 1419 and 21. Now are we back to Golaknath having this 13.2 test without reference to the basic structure? What Kohelo does is it identifies 1419 and 21 as basic structures. And again, can we say that we are back to Golaknath on this aspect? So that do you want to answer this? Yeah, I think this is what some people call modified Golaknath because now you cannot, the 13.2 directly controls the amendment as such, but you like in IR Kohelo, they introduce the two tests, the effect test and the direct test. Now, mostly what the courts have to do is to look at the effect that it is producing on the foundational value of a right, which is something that is what happened even in the Kenyan case, where they said that particular clause cannot be declared as unimaginable, but you have to look at the context in which certain amendment has been brought in. And I think this is what Wabanrao and IR Kohelo did, where they did not say that violation of fundamental right would itself become unconstitutional, but you have to look what is the effect on the foundational value of that right. So I think we haven't gone back to what Golaknath did because Golaknath even said that the power of the amendment comes from 248, then 368, which was rejected in other cases also. But I think what we can, at best, call it as a modified Golaknath. This is what I- I'll just add to that quickly, which is that if you look at Nagraj's case, 16, 4A and 4B, right? 16, 4A and 4B carry forward and catch-up rules were brought into the constitution to specifically get over Supreme Court judgments interpreting from 16, 4A and 16, 4, like 16, 15, 14, is part of the same equality code. So to the extent that you tinker, tinker with the scheme of 14, 15, 16 or 19 or 21, that's okay. That's not a basic structure challenge. So you can say, for example, that, you know, I mean that henceforth 50% you can insert into the constitution saying that limit is 50% or is not 50%, those kinds of things, you know, in my view are not violations of basic structure. But if tomorrow you say that we are removing equality from the constitution, you know, or we are completely repealing free speech. Now, no right to free speech. Then that becomes a violation of basic structure. So to the extent, that extent 14, 19, 21 are part of the basic structure. But what is equality? What is free speech? What is life and personal liberty are themselves contested concepts? There are argument over what is actually, what does equality mean? You know, what is free speech? So if within that you make changes, following Koilo, that is fine. So you can alter the conceptions, various conceptions, various ideas of equality, but you can't do away with, you know, the thing altogether. So, and of course that's a difficult distinction it won't always be very clear. So that will, I mean, courts have to, you know, use common sense and I think good sense to decide those cases. But I think any basic structure doctrine, whether in Kenya or in India or anywhere else ultimately relies on judicial good sense, you know, to not overstep and to ensure that it's used in rare cases and only when there is genuine threat to fundamental constitutional values. I request Mr. Vikas to offer the order of thanks. Thank you to all those participants who have been watching us live on the YouTube, Facebook and on this platform. And most specifically to our Kenyan friends who have joined me from Kenya. And it also shows the immense popularity of Mr. Mohan Katarki, Mr. Pasaraj, Dakshaligal, Siddharth Sijoria and above all Gautam Bhatia also. So the fact that people from pan world are joining on this virtual platform and these is what we were always talking about on these platforms that because of the lockdown they were testing time but there are certain things which have been we are all connected on a platform like Mr. Gautam is in the UK and we have been able to connect with him and somehow the time also matched up. And the way they have interpreted the basic structure taking to queue from what Keshav and Bhati, Gokal and all were suggesting were saying and coupled with how the Kenyan judgment has expressed its view. I think like what they said a judgment of more than 300 pages I was just going through the blog written by Mr. Gautam Bhatia the way he made it short and crisp I think there couldn't be much crispier and like what we said I was today reading an article of an interview of Mr. Gokal Trotki maybe in Taksha Legal also it was shared wherein said that the judgment should be short they should be around 40 to 50 pages that instead of 500 pages it can be crispier and when I read his articles two articles on 13 pages each on his blog of Mr. Gautam Bhatia you could just have a bird eye view and you could actually understand what things have gone and after hearing him as well as Mr. Siddharth and Mr. Mohan the entire concepts actually got much much clearer and before we part for the day again we would all request that keep on wearing your mask get vaccinated and maintain the social distancing and we have seen large number of countries and world where people have actually after maintaining all this thing the lockdown effects now they've got better and there are many countries where there are zero cases my sister in Australia she says that you're actually we don't even know what is the concept of this COVID so we are all there are there are challenges but we can actually move forward and tomorrow friends we will understand the basic definitions of the transfer of property act by Mr. S. Mukant so kindly do connect with us tomorrow at 4 p.m. and on behalf of Daksha Legal and all those participants who are watching us live on the YouTube, Facebook and on this platform we are thankful to Mr. Siddharth Sijoria Mr. Gautam Bhatia and above all the insights we had earlier with Mr. Pukumohan Katarkhi the senior advocate in Supreme Court so three lawyers who have created the niche in the Supreme Court of India but on the platform we had different like we say Ganga Yamuna and Saraswati and Allahabad where we connect on and we get the common point so thank you everyone once again and do stay connected with us and everyone stay safe, stay blessed and may Allah be with you