Lessons from Germany for us

In one of Franz Kafka’s best-known works, The Metamorphosis, the protagonist, Gregor Samsa, wakes one morning to find himself inexplicably transformed into a huge insect and subsequently struggling to adjust to this new condition. Resembling this Kafkaesque nightmare, does a constitutional liberal democracy based on the rule of law instantaneously metamorphose into a totalitarian state based on autocracy? It sometimes happened in modern world history. One such instance was the abrupt end of the Weimar Constitution of German Republic in 1933.

The Weimar Constitution was the constitution that governed Germany during the Weimar Republic era (1919–1933). The constitution declared Germany to be a democratic parliamentary republic with a legislature elected under proportional representation. Universal suffrage was established, with a minimum voting age of 20. The nation was made a democratic federal republic, governed by a president and parliament. It guaranteed individual rights such as the freedom of speech and assembly to each citizen.

Privileges based on birth or social statuses were abolished. Official recognition of the titles of nobility ceased and further creation of noble titles was discontinued. The rights of the individual were made inviolable. Persons had the right to be notified within a day of their arrest or detention as to the authority and reasons for their detention and be given the opportunity to object.

Privacy of correspondence, of mail, telegraph, and telephone was made inviolable. Germans were entitled to free expression of opinion in word, writing, print, image, etc. Censorship was prohibited. Germans had the right to assemble peacefully and unarmed without prior permission. The citizens were entitled to form clubs or societies, which were permitted to acquire legal status. This status could not be denied because of the organization’s political, socio-political or religious goals.

In his book The Rise and Fall of the Third Reich, historian William L. Shirer described the Weimar Constitution as “on paper, the most liberal and democratic document of its kind the twentieth century had ever seen...”

Less than a month after Adolf Hitler’s appointment as Chancellor in 1933, the Reichstag Fire Decree invoked Article 48 of the Weimar Constitution, suspending several constitutional protections on civil rights. The Reichstag Fire Decree was issued by German President Paul von Hindenburg on the advice of Chancellor Adolf Hitler in immediate response to the Reichstag fire.

The articles suspended by the decree were 114 (habeas corpus), 115 (inviolability of residence), 117 (correspondence privacy), 118 (freedom of expression/ censorship), 123 (assembly), 124 (associations) and 153 (expropriation).With Nazis in powerful positions in the German government, the decree was used as the legal basis for the imprisonment of anyone considered to be opponents of the Nazis, and to suppress publications not considered “friendly” to the Nazi cause.

The Enabling Act was the next Nazi assault on the Weimar constitution. The Enabling Act of 1933 was an amendment to the Weimar Constitution that gave the German Cabinet — in effect, Chancellor Adolf Hitler — the power to enact laws without the involvement of the Reichstag. The combined effect of the two laws was to transform Hitler’s government into a legal dictatorship.

Under the Act, the government had acquired the authority to pass laws without either parliamentary consent or control. The Enabling Act, for all intents and purposes, reduced the Reichstag to a mere stage for Hitler’s speeches.

As per Article 368 of the Indian Constitution, Parliament is entrusted with the constituent power to amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article. The scope of this amending power of Parliament has always been shrouded with ambiguity. The Supreme Court’s initial position on constitutional amendments was that any part of the Constitution was amendable and that the Parliament may amend any provision of the Constitution, including the Fundamental Rights and article 368.

In 1967, the Supreme Court reversed its earlier decisions in Golaknath v. State of Punjab. It held that Fundamental Rights included in Part III of the Constitution are given a “transcendental position” and are beyond the reach of Parliament. It also declared any amendment that “takes away or abridges” a Fundamental Right conferred by Part III as unconstitutional. By 1973, the basic structure doctrine triumphed in Justice Hans Raj Khanna’s judgment in the landmark decision of Kesavananda Bharati v. State of Kerala. In this landmark ruling, the Court adjudicated that while Parliament has “wide” powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution.

The Basic Structure Doctrine was propounded by a distinguished German jurist, Professor Dietrich Conrad. In 1965, while on a visit to India, Conrad delivered a lecture on “Implied Limitations of the Amending Power” to the Law Faculty of the Banaras Hindu University.

Prof. Conrad was deeply influenced by the disaster of the Weimar Constitution in formulating the Basic Structure Doctrine. Prof. Conrad asked a thought-provoking question in the lecture: “Could a constitutional amendment abolish Article 21, to the effect that forthwith a person could be deprived of his life or personal liberty without authorisation by law? Could the ruling party, if it sees its majority shrinking, amend Article 368 to the effect that the amending power rests with the President acting on the advice of the Prime Minister? Could the amending power be used to abolish the Constitution and reintroduce, let us say, the rule of a Mughal emperor or of the Crown of England?”

He argued that the amending powers of Parliament are impliedly limited and the basics of Constitution are beyond the amending power of Parliament. In order to avoid the disaster of Weimar Constitution in future, the Eternity Clause was incorporated in the Basic Law of the Federal Republic of Germany in 1949. The Eternity Clause established that certain fundamental principles of Germany’s democracy can never be removed, even by Parliament.

In the Kesavananda Bharati case, the Supreme Court Bench upheld the Basic Structure Doctrine with a wafer-thin majority (7-6). The Doctrine has not yet been enshrined inside the text of the Constitution. Neither the Doctrine has been clearly defined nor have the basic features been enumerated. Furthermore, our Constitution is not fortified by the eternity clause. In short, the immune system or firewall of the constitution remains fragile. So the Kafkaesque nightmare of Weimar disaster may well haunt the Indian Constitution in coming years.