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THE SCOPE AND LIMITS OF THE BASIC STRUCTURE DOCTRINE DEVELOPED BY THE SUPREME COURT POST KESAVANANDA BHARATI DECISION

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INTRODUCTION

The Indian constitution is a living document with a dynamic approach that demands to be updated time and again in response to the raid societal changes. The constitutional forefathers therefore were mindful of incorporating the provisions to introduce amendments to the rulebook which were laid down under Article 368. The article vests such amending power to the parliament and prima facie appears to be absolute in nature with no restrictions while altering or modifying the existing laws. Many amendments were sensed to be an exhibition of such arbitrary powers under article 368 which aimed at heightening parliamentary sovereignty and could possibly lead to ‘politicisation of the constitution’[1]. The judiciary grew suspicious of the encroaching and uncontrollable amending powers of the parliament and decided to limit them. A thirteen judges’ constitutional bench in Kesavananda Bharati v. State of Kerala[2] agreed upon that while it is not explicitly stated in article 368, there exist certain provisions which do not fall under the amending ambit of the parliament. Such provisions are so intrinsic to the constitution of the country, that if amended it would destroy its very spirit and essence. These provisions form the basic structure of the constitution and are not subject to any alteration or amendment by any authority, thereby impliedly restricting the parliamentary powers under Article 368.

The judgement ran across pages but failed to specify what exactly comprises the basic structure. The majority of judges who admitted the existence of a “basic structure of the Constitution” did not agree with the list of the principles included in this concept. Each judge drew a different list.[3] The absence of consensus led to unexplained ingredients of the judgement. No exhaustive list of what provisions fall under the basic structure doctrine was formulated. This indicates an undefined scope of the doctrine which is to be explained over time by the judiciary on a case to case basis. Indira Gandhi v. Raj Narain [4](election case) became the first case to confirm the application of the doctrine as well as attempted to explore and clarify its faded essence. The question arose for the constitutionality of the 39th amendment where clause (4) and (5) of Art.329-A were criticized on the basis that they barred the functioning of law and judicial review practices during election proceedings for Prime Minister and the Lok Sabha speaker, thereby violating the democratic principles of the constitution. The court noticed that free and fair elections is an essential feature of democracy and because the clauses obstruct such a practice, it impliedly violates the principle of democracy.  The judgement categorically held that democracy is an ingredient of basic structure of the Indian Constitution, which renders the amendment illegal. Equality among citizens is a primary pillar for a democratic nation which emerges from the concept of rule of law. As in, a real democracy can only exist in the presence of rule of law. The Court therefore held that rule of law also forms part of the basic structure of the Constitution of India[5]. The decision by bringing both democracy and rule of law as unamendable features of our Constitution, upheld the identity of the Constitution of India, and can be considered as a worthy successor of Kesavananda.[6] Amongst discussions , the judges however rejected the contention on various grounds of judicial review being an ingredient to the basic structure doctrine which indeed hints for a suspicious and doubtful position in light of its vitality when compared with other principles discussed in the same judgement which met the criteria to be listed in the doctrine. The majority judgement of 3:2 in the election case itself limited the applicability of the basic structure doctrine solely to constitutional legislation’s, thereby stating that no ordinary legislation can be subjected to the test of the doctrine. However, the position was overruled in a lot of subsequent cases and the position yet remains unclear. Over the years, the Supreme Court has been applying the doctrine of basic structure to invalidate ordinary legislations, sometimes directly, at other times tangentially.[7] CJ Beg in State of Karnataka v. Union of India[8] as well as Justice Khehar in Madras Bar Association v. Union of India[9] and Supreme Court Advocates on Record Association v. Union of India [10] have affirmed that ordinary legislations must be subjected to the test of basic structure doctrine, thereby indicating an extending scope.

The basic structure doctrine was cemented into the spirit of the constitution through the judgement of Minerva Mills v. Union of India[11]. “ It developed a test for basic structure doctrine , where every amendment would have to be determined on consideration of various factors such as the place of the particular feature in the scheme of the Constitution, its object and purpose and the consequence of its denial on the integrity of the Constitution as a fundamental instrument of country’s governance to measure whether it forms a part of the basic structure or not .”[12]  The doubtful stance of the court in elections case where judicial review could not be listed into the ingredients of the doctrine was overruled. An effort to eradicate the concept of judicial review was made through the 42nd amendment act which had the ability to disrupt the power balance between the organs and significantly diminishing judicial powers. The court by declaring judicial review as an essential component of the basic structure, struck down the provision. While elaborating on the idea, the judgement further mentioned how a smooth judicial review practice is contingent on effective separation of powers, hinting about latter also being an ingredient to the basic structure doctrine. The analysis of the judgement hints a digression in the outlook adopted by the court while defining the doctrine in former cases. The reasoning behind listing judicial review as a component of the doctrine was not that it was one of the foundational pillars of the constitution but the thought that its presence is essential to regulate the amending powers of the constitution via a judicial scrutiny. The reasoning sounds contrary to the originating spirit of the basic structure doctrine and invokes suspicion towards misuse of judicial powers. However, the decision seems to be righteous in order to keep intact the sanctity and ensure a sustained life of Kesavananda Bharti judgement. Even though the judgement held that the amending powers of the parliament must be limited , it did not conclusively hold that limited amendability of the Constitution was a feature of its basic structure.[13] This could give a possible opportunity to the parliament to discredit the Kesavananda Bharti decision which was just being done through the 42nd amendment act by removing the concept of judicial review from the constitution. Therefore, the judgement in Minerva Mills case ruled out the possibility of any future move to annul the position of Kesavananda Bharti case on limiting the amending powers of the parliament. While discussing on the question of harmony and balance between the directive principles and fundamental rights, the Court held that such a peaceful balance is an essential feature of the basic structure of the Constitution of India[14]. Any clause which shall disturb it was held to be beyond the amending powers of the parliament.

The scope for basic structure doctrine is witnessed to be broadened over time. The Supreme Court in S.R.Bommai v. Union of India [15]extended the doctrine’s application to assess the powers of certain constitutional authorities. While conclusively declaring secularism and federalism as essential components of the basic structure, the court put a stop to any acts of arbitrary removal of the state government under the provisions of Article 356. The judgement therefore limited the uncontrolled powers of the president which could pose a potential harm to the basic structure doctrine. It is essential to observe how the scope for the doctrine was widened to include within its ambit, the constitutionality of powers by the executive authorities as earlier the doctrine was only limited to test the validity of amendments and could not challenge the powers of already established authorities. The basic structure doctrine also serves as a standard for a meaningful interpretation of the constitution. The court in Shri Kumar Padma Prasad case[16] while holding independence of judiciary as one of the features of the basic structure said “it would be ‘logical and consistent’ with the constitutional scheme to read the provisions dealing with appointment of judges in the light of and in accordance with a feature of basic structure.” The judgement by acknowledging the principle of basic structure as a significant criterion to construct and interpret the country’s constitution incorporated a new sphere to the doctrine.

The eminence for fundamental rights was strengthened in the case of M Nagraj & Ors. v. Union of India & Ors.[17] by holding that all these rights are interlinked with certain values which build the framework of our constitution and make it an ‘organic whole’. These values like secularism, democracy, reasonableness, social justice must be preserved at any cost. While elaborating the concept in I.R. Coelho (dead) by L.R.s v. State of Tamil Nadu [18], it was explained how these principles act as a wall around the fundamental rights, which has to remain forever, limiting the ability of the majority to intrude upon them, That wall is a part of basic structure[19]. It was reiterated that any amendment which can injure the identity of the constitution (including the ninth schedule under its application)  by harming its core features , is incompatible with the basic structure doctrine and therefore would be void .  In the Nagraj case, a new standard regarding judicial review of amendments in the shadow of basic structure doctrine was developed. A constitutional principle shall first serve as a part of the constitutional law which stands binding over the legislature, only after which it will be considered as a component of the basic structure.

A serious limitation to the basic structure doctrine was imposed via Waman Rao v. Union of India[20] where it was categorically held that the application of the doctrine stands prospective in nature which signifies that only those amendments that are executed subsequent to the date of Kesavananda judgement I.e. 24 April ,1973 can be judicially challenged for their constitutional validity as per the basic structure doctrine. Therefore, it ruled out any scope of questioning an amendment which got incorporated into the constitution prior to the date, be it violative of fundamental pillars of the constitution or not. There was a further attempt at restricting the doctrine’s application in Sampath Kumar v. Union of India[21] where the court diminished the virtue of judicial review which was held as one the salient features of the basic structure. While declaring administrative tribunals to be functional, it was held that if any legislation fully violates judicial review, it is only then that it can be considered as contrary to the basic structure. This impliedly allowed for a partial stripping of judicial review, thereby scaling down the doctrine’s scope to it. However, the attempt was rendered futile through L. Chandra Kumar v. Union of India[22] where by subjecting tribunal judgements to a review before high court’s division bench , it can be inferred that judicial review amongst other ingredients of the basic structure once incorporated in the doctrine’s list in no way shall either be substituted or retracted in any manner. The judgement therefore restored the judicial review, its maturely entrenched position.   

The unambiguous status of basic structure doctrine in the Kesavananda judgement therefore allowed for a room to the judicial mind to unfold its layers and crystallise its nuances over time. The largely appreciated doctrine however also invites criticism on the account of overarching powers of the judiciary, which even extend to the judgement being referred as a step towards the ‘Government of Judges’[23]. A scrutiny of post- Kesavananda position of basic structure doctrine majorly reveals its widened scope with every judgement bringing within its purview the sacred shades of the constitution which are fundamental to preserve its colour.  Every case aids a better understanding of the doctrine while simultaneously responding to the social changes. Vishakha judgement for the first time witnessed ‘feminising of the basic structure doctrine’ which must serve as a precedent to cases like Sabrimala for permeating the doctrine’s ambit to questions like women’s rights being an integral component of the basic structure. [24] The basic structure doctrine proves its existential importance as a protective shield between power ridden parliament and the citizenry, contingent on the wise application of judicial mind.

Author(s) Name: Carishma Bhargava (O.P. Jindal global University, Sonipat)

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[1] Alan Brinkley, Nelson W. Polsby and Kathleen M. Sallivan, New Federalist Papers (1997), pp. 63-64.

[2] (1973) 4 SCC 225: AIR 1973 SC 1461

[3]  THE DOCTRINE OF BASIC STRUCTURE IN PRE AND POST KESHAVANANDA’S CASE’ (Southcalcuttalawcollege.ac.in) accessed 10 June 2020.

[4] 1975 AIR 865, 1975 SCR (3) 333

[5] Ibid.

[6] V.R. Jayadevan, ‘Basic Structure Doctrine and its Widening Horizons’ (2003) CULR, Vol.27

[7] Setu Gupta, ‘VICISSITUDES AND LIMITATIONS OF THE DOCTRINE OF BASIC STRUCTURE’ (2016) ILI Law Review

[8] 1978 (2) ELT 564 Kar. “But, if, as result of the doctrine certain imperative are inherent in or logically and necessarily flow from the constitutions ‘basic structure’, just as though they are its express mandates; they can be and have to be used to test the validity of ordinary laws just as the other parts of the constitution so used.

[9] (2014) 10 SCC 1.

[10] (2016) 5 SCC 1. See, para 221.

[11] AIR 1980 SC 1789

[12] Ibid.

[13] V.R. Jayadevan, ‘Basic Structure Doctrine and its Widening Horizons’ (2003) CULR, Vol.27

[14] A. I.R. 1980 S.C. 1789. at p. 1806 j. Chandrachud. The significance of the perception that Parts III and IV together constitute the of core commitment to social revolution and they together are the conscience of the Constitution is to be traced to a deep understanding of the scheme of the Indian Constitution

[15] 1994 SCC (3) 1

[16] 1992 SCR (2) 109

[17] 2006 (8) SCC 212.

[18] 1972 (2) SCC 133

[19] Justice BS Chauhan, ‘Doctrine of Basic Structure: Contours’ (2018) accessed 10 June 2020.

[20] AIR 1981 SC 271

[21]  1987 SCR (3) 233

[22] 1987 (1) SCC 124

[23] Dr. Harichand, ‘Amending Process in the Indian Constitution’ (1972) p.440

[24] Upendra Baxi , legal scholar, ‘HOW TO FEMINIZE THE BASIC STRUCTURE DOCTRINE’ (speech at 25th Justice Sunanda Bhandare Memorial Lecture, 29 November 2019. IIC Multipurpose Hall, New Delhi)