Basic Structure – I: History and Evolution

Over the next series of posts, we hope to discuss the famous basic structure doctrine: its history and evolution and, considering that it now appears to be a definite feature of our constitutional landscape, the possible arguments in its defense. Given the complexity of the issues, and the sheer length of some of the cases, simplification is necessary; and it is easy enough, at times, to slip into the error of oversimplification. For that, apologies in advance.

Article 245 of the Constitution invests the Parliament with the power to make laws subject to the provisions of the Constitution. Article 368 provides the Parliament with a special type of power, i.e., to amend constitutional provisions. This power can be exercised through a two-thirds majority in both Houses of Parliament and, in some cases, with the additional consent of half the number of State legislatures. The article remains silent, however, upon the exact nature, scope and limitations (if any) of the amending power. The question, therefore, arises: is the Parliament’s power to amend the Constitution unfettered and free from all restraints? For example, can the Parliament, if it so desires, repeal the Constitution entirely, and convert India from a secular democratic republic to a theocratic despotic monarchy, subject to fulfilling the procedural requirements of Article 368?

In the case of Kesavananda Bharati v. State of Kerala, a thirteen-judge bench of the Indian Supreme Court, by a majority of 7:6, answered that question in the negative. It was held that the Parliament could only amend the Constitution to the extent that it did not “damage or destroy the basic structure of the Constitution.” By subjecting Constitutional amendments to judicial review, the Court essentially placed a substantive non-legislative check upon the Parliament’s amending power.

An inquiry into the legitimacy of the basic structure doctrine must therefore answer three fundamental questions: first, in democracies that follow the principle of separation of powers, can any form of restriction upon the Parliament’s law-making powers be justified? (Or, in States such as India, that have a written Constitution, the question is slightly modified: is any restriction upon the Parliament’s power to change, alter or even abrogate the Constitution, through the means of a Constitutional amendment, justified?) Secondly, if yes, then is the judiciary the correct organ to impose such a restriction? And thirdly, if yes again, then what is the content of the basic structure doctrine to make it a valid restriction, keeping in mind the separation of powers, upon the amending power?

Let us begin with the history of the doctrine. The argument that the Parliament’s amending power is subject to substantive limitations was first raised in Sankari Prasad Deo v. Union of India. The Constitutional challenge had arisen with respect to Part III of the Constitution, which contains fundamental rights such as the rights to life, equality, freedom of expression etc. The challenge in Sankari Prasad was premised upon the wording of Article 13 of the Constitution, which prohibits the State from making any law in violation of any fundamental right enumerated in Part III. It was argued that a Constitutional amendment was “law”, properly called; and so, under Article 13, it was impermissible for the State to amend Part III of the Constitution. The argument was unanimously rejected by a constitution bench of the Supreme Court, which held that the Parliament had the power to amend any provision of the Constitution, without exception.

The question came up again fourteen years later in Sajjan Singh v. State of Rajasthan, also before a Constitution bench. Gajendragadkar C.J., speaking for himself and two others, upheld Sankari Prasad. However, Justices Hidayatullah and Mudholkar expressed doubts about the verdict. Hidayatullah J. opined that the many assurances given in Part III made it difficult to visualize fundamental rights as mere “playthings of a special majority.” Mudholkar J. observed that the framers may have intended to give permanency to certain “basic features” such as the three organs of the State, separation of powers etc. He also questioned whether a change in the basic features of the Constitution could be defined as an “amendment” within the meaning of Article 368, or whether it would amount to rewriting the Constitution itself.

The position of law was then reversed in I.C. Golak Nath v. State of Punjab. An eleven judge bench of the Supreme Court, by a slender margin of 6 to 5, and by divided majority opinions, held that the Parliament had no power to amend Part III of the Constitution. All provisions dealing with fundamental rights were thus placed beyond the reach of the legislature.

The Parliament’s response was immediate and telling. In order to overcome Golak Nath, it enacted the Twenty-Fourth Constitutional Amendment. This provided, inter alia, that the prohibition in Article 13 would not apply to an amendment of the Constitution under Article 368. It also substituted the words “amendment by way of addition, variation or repeal” for only “amendment” in Article 368. The Constitutional validity of the Twenty-Fourth Amendment, amongst others, was strongly challenged. In order to obtain a conclusive judicial ruling upon the exact scope, nature and limitations of the amending power, a thirteen-judge bench of the Supreme Court was constituted. The case was Kesavananda Bharati v. State of Kerala.

Eleven separate opinions were delivered in Kesavananda. The complexity of the issues notwithstanding, it may safely be said that by a majority of 7 to 6, the Court held that whereas the Parliament’s amending power was plenary, and extended to every provision of the Constitution (thus overruling Golak Nath), the Parliament could not damage or destroy the basic structure of the Constitution. In order to determine the basic structure of the Constitution, recourse was had to the preamble, the Constitutional “scheme”, the struggle for independence from colonial rule, and the drafting history of the Constitution. Chief Justice Sikri, in his majority opinion, provided five such “basic features”: supremacy of the Constitution, republican and democratic form of government, secular character of the Constitution, separation of powers between the executive, legislature and judiciary, and federal character of the Constitution. Similar lists were prepared by the other majority judges.

The basic structure doctrine was crystallized in three further decisions of the decade. In Indira Nehru Gandhi v. Raj Narain, a Constitutional amendment dealing with the election of the Prime Minister and the Speaker was struck down for violating the basic features of democracy (Mathew and Khanna JJ.), the rule of law (Ray C.J.) and equality (Chandrachud J.). In Minerva Mills v. Union of India, the Parliament attempted to overturn Kesavananda by inserting the 42nd Amendment, which expressly stated that the amending power was unlimited, and not open to judicial review. The amendment was struck down by the Court on the ground that the limited amending power of the Parliament was itself part of the basic structure. Lastly, in Waman Rao v. Union of India, it was held that laws placed in the 9th Schedule, and thus beyond the pale of fundamental rights review, would nevertheless have to be tested on the touchstone of the basic structure before they were given immunity.

The next two decades saw the consolidation of the doctrine. In a series of judgments, which may collectively be called the Tribunals Cases, it was held that judicial review of the Supreme Court under Article 32, and of the High Courts under Article 226, was a basic feature. First enunciated in S.R. Bommai v. Union of India, and then crystallized in the decisions of Ismail Faruqui v. Union of India and Aruna Roy v. Union of India, the Court developed the concept of the basic feature of secularism as an attitude of even-handedness towards all religions. In I.R. Coelho v. State of Tamil Nadu, the Court added Articles 14 (right to equality), Article 19 (fundamental freedoms) and Article 21 (right to life) to the list of basic features.

It is also important to note certain other landmark judgments where basic structure challenges were rejected. In Kuldip Nayar v. Union of India, both secret ballots, and domicile requirements for election to State legislative Assemblies were held not to be basic features. In M. Nagaraj v. Union of India, the Constitutional amendment introducing Articles 16(4A) and 16(4B), was impugned. These articles dealt with certain specifics of affirmative action. Rejecting the contention that these provisions damaged equality, the Court observed that they only enunciated certain specific rules of “service jurisprudence”, not affecting the basic feature of equality under Articles 14, 15 and 16 of the Constitution.

This brief overview highlights the following salient points: first, basic structure review is a substantive limitation upon the power of the Parliament to amend the Constitution, i.e., Constitutional amendments must conform to certain standards or values, and must not be in violation of certain substantive content, in order to be constitutionally valid; secondly, the task of adjudicating content-based violations of the basic structure must be performed by the judiciary; and thirdly, the components of the basic structure doctrine, such as democracy, the rule of law, secularism etc., have been enunciated in a highly abstract manner, permitting varying and different interpretations. It is this framework that must be kept in mind while analyzing the legitimacy of the basic structure doctrine

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One response to “Basic Structure – I: History and Evolution

  1. Pingback: Basic Structure – VIII: Conclusion (of sorts) | Indian Constitutional Law and Philosophy

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