The CONSTRUCT OF BASIC STRUCTURE IN THE INDIAN CONSTITUTION--.. The Origin & the Evolution

In our growing up years whenever we had occasions to learn the elementary lessons in Civics, I used to wonder how a great nation like the UK could function and thrive without a written Constitution, especially the one that is known as the mother of all democracies. Today when we discuss the Indian Constitution, we are confronted with a similar surreal situation of a constitution without a written down basic structure for its own Constitution.? How such a situation in India has come about is in itself is a fascinating story.? This article gives glimpses of the historical developments that has brought us to this position with a heady mixture of law and politics. Over a period of time what is perceived as elements of the basic structure has evolved as per the interpretation of the Supreme Court anchored on the cases that have come before it. The immediate provocation to bring up the issue for discussion here is the speech given by Shri Ranjan Gogoi, former Chief Justice of India who said in the Parliament “The doctrine of the basic structure of the Constitution has a debatable, very debatable jurisprudential basis”.? The Honourable Justice should know!? This Doctrine posits that certain fundamental principles and essential features of the Constitution are beyond the reach of the Parliament.? In that sense this Doctrine is considered by many as a judicial coup against the Parliament and through that the Executive, especially since its introduction marked a significant departure from the constitutional principles? enshrined in the original text.? A time is sure to come to debate the scope and legitimacy of this Doctrine sooner than later.

Just the other day, on 24th of April 2023 we crossed an important milestone in the history of our nation. Fifty years back on that very date in 1973 India got a judicial verdict with a wafer-thin majority from its highest Court that reiterated the ?raison d'être of our celebrated Constitution.? Subsequent developments in the political firmament of our nation clearly went on to demonstrate the possible consequences of what it could have been if the verdict on that fateful day in this case had gone the other way. ?This case of His Holiness Kesavananda Bharati Sripadagalvaru vs State of Kerala decided after the longest hearing of sixty-six days in the Supreme Court by the largest bench of 13 judges of the Court.? The apex Court is considered to have decided by a majority of 7 to 6 judges the Parliament did not have unfettered power to amend the Constitution if it affects its “basic structure”.? This case was the culmination of a struggle for supremacy between the Supreme Court of the nation and its Parliament which began with the former holding in Golaknath vs State of Punjab in1967 by a majority of 6 to 5 that the Fundamental Rights could not be amended by the Parliament.? The Government of the day made the reversal of this case a political issue on the ground that the Court was preventing necessary amendments of the fundamental right to property for necessary economic reforms. In order to ensure that a favourable judgment from the Court the Government sought the constitution of the largest Bench in the Supreme Court and appointed new judges who were expected to decide in favour of the supremacy of the Parliament.

The concept of a "basic structure" was read into the Indian Constitution for the first time in this case.? ?These are a body of fundamental principles and features that are considered sacrosanct and cannot be altered or amended through the regular constitutional amendment processes. These principles form the core essence of the Constitution and are believed to be essential for preserving its character and ensuring its democratic and foundational nature.? As there is no written text, this component of basic structure has to be gleaned from judgments of the apex court from time to time. Let us fasten our seatbelts and take a roller coaster ride in to the past to see where and how we had landed ourselves in.? In order to do that we will need to go over the following landmark constitutional cases decided by the Supreme Court:

1.?????? The Shankari Prasad and Sajjan Singh Cases (1951 and1965): “The Supreme Court held that the Parliament has absolute power to amend the Constitution under Article 368”.

2.?????? Golaknath vs State of Punjab (1967): “The Parliament cannot amend Fundamental Rights and this power rests only with the Constituent Assembly”.

3.?????? Kesavananda Bharti vs State of Kerala (1973): “The Parliament could amend any part of the Constitution; but it cannot alter the basic structure or essential features of the Constitution”.

4.?????? Indira Nehru Gandhi vs Raj Narain (1975): “The doctrine of basic structure reaffirmed and invalidated the provision of keeping election disputes involving the PM and the Speaker outside the jurisdiction of all courts”.

5.?????? Minerva Mills vs The Union of India (1980): “The judicial review and harmony between Fundamental Rights and Directive Principles added to the basic structure”.

6.?????? Waman Rao vs The Union of India (1981): “The doctrine would apply to constitutional amendments enacted after the Kesavananda Bharti case”.

7.?????? Indira Sawhney vs The Union of India (1992): “The rule of law was declared as a part of the basic structure of the Constitution”.

8.?????? S R Bommai vs Union of India (1994): “Federalism, Secularism, Democracy, Unity and Integrity of the nation and social justice were reiterated as basic structure of the Constitution”.

9.?????? Supreme Court Advocates-on-record Association and Anr vs Union of India (2014): “The National Judicial Amendment Act was unconstitutional”.

The idea of the Basic Structure Doctrine was first conceived by the Supreme Court in the landmark case of Kesavananda Bharati v. State of Kerala (1973). This case was a pivotal moment in Indian constitutional jurisprudence, as it established the principle that while the Parliament has the authority to amend the Constitution, it cannot change or alter its basic structure. The court's reasoning behind the basic structure doctrine was to ensure that the essential principles of the Constitution, which form the bedrock of India's democratic and federal structure, remain intact and immune from arbitrary changes that might undermine the democratic fabric of the country.? While the exact elements what constitute the basic structure have not been clearly defined, the Court has identified certain principles that are considered part of the basic structure. These principles include:

1.?????? Supremacy of the Constitution: The Constitution is the supreme law of the land, and any attempt to dilute or undermine its authority is not permissible.? In the 2017 Right to Privacy case, the Supreme Court declared the right to privacy a fundamental right, which is now protected under the basic structure doctrine, demonstrating its role in maintaining constitutional stability.

2.?????? Democratic form of government: The structure that ensures representative democracy, regular elections, and the rule of law.? For instance, in the 2020 Bihar state assembly elections, the Doctrine played a crucial role in upholding democratic values when the Election Commission of India conducted the elections amid the COVID-19 pandemic, ensuring free and fair elections while adhering to safety protocols.

3.?????? Rule of law: The principle that all individuals and institutions are subject to and accountable under the law. The 2020 nationwide protests against the Citizenship Amendment Act showcased the importance of the Doctrine in protecting citizens’ rights to express dissent and hold the government accountable.

4.?????? Judicial review: The power of the judiciary to review and strike down laws that are unconstitutional.? The Basic Structure Doctrine was tested for the first time after its enunciation in 1975 in the case of Indira Gandhi vs Raj Narain.

5.?????? Secularism: The principle of maintaining a separation between religion and state.? A recent example is the 2019 Supreme Court verdict on the Ayodhya land dispute case. The court ruled in favour of constructing a Ram temple at the disputed site while allocating an alternative piece of land for the construction of a mosque. This decision highlighted the secular nature of the Indian Constitution.

6.?????? Federal structure: The division of powers and responsibilities between the central and state governments. In 2019, the abrogation of Article 370, which granted special status to Jammu and Kashmir, has been challenged in the Supreme Court. The Court’s decision on the abrogation of Article 370 will have an impact on the sanctity of the Basic Structure Doctrine while ensuring that federalism is maintained unharmed.

7.?????? Unity and integrity of the nation: The preservation of the territorial integrity and unity of India.? Axioms like secularism, democracy, reasonableness, social justice, etc., are overarching principles which provide the basis of fundamental rights and are beyond the amending power of Parliament.

8.?????? Protection of fundamental rights: Safeguarding the fundamental rights of citizens. In 2018, the Supreme Court decriminalized homosexuality by striking down Section 377 of the Indian Penal Code, thereby upholding the rights to equality and personal liberty.

9.?????? Independence of the judiciary: Ensuring the autonomy of the judiciary and its ability to provide checks and balances on other branches of government. In 2018, the Supreme Court struck down the 99th Constitutional Amendment and the National Judicial Appointments Commission (NJAC) Act, asserting that these provisions would undermine the independence of the judiciary by giving the executive undue influence over the appointment of judges.

The concept of the basic structure provides a certain level of flexibility to the Constitution, allowing it to adapt to changing times and circumstances. However, the Doctrine places limits on the extent to which the fundamental character of the Constitution can be altered through amendments. The basic structure doctrine serves as a safeguard against any potential abuse of the amending power by the Parliament, preventing changes that could undermine the core principles of democracy, justice, and the rule of law that the Indian Constitution is founded upon.

Though one may be tempted to focus on the legal nuances of this epic legal battle, it is crucial to keep in mind the political overtones surrounding the case while the Supreme Court was ceased of the matter. It was necessary for the political establishment to reassert itself in the aftermath of the decision in Golaknath (above) which held that the Parliament cannot amend or abrogate Fundamental Rights and this power rests only with the Constituent Assembly.? An opportunity arose to test this premise when His Holiness Kesavananda Bharti challenged the Constitution 29th Amendment Act 1971 and the Kerala Land Reforms Act 1969 were put in the 9th Schedule to the Constitution.? This challenge raised the question whether Golaknath case was rightly decided by the Court.? A Bench of 13 judges was constituted principally to consider the Golaknath case.? His Holiness Kesavananda Bharathi played no part in the historic case apart from lending his name just as Henry Golaknath had played no part in the Golaknath case.? Both of them only lent their names to the Court’s decisions without directly benefiting from the decision. That was not the case for the government of the day led by Mrs Indira Gandhi. The majority judgment of Golaknath was written by Chief Justice Subba Rao to which Justices Sikri and Shelat were parties who later were also members of the 13-member Bench in Kesavananda case.? As the Golaknath case was being reconsidered in the Kesavananda case, these judges ought not to have taken part in the latter case as per well-established precedents. Until 1970 appointments of judges were made on the recommendations of the Chief Justice. This practice was reversed with a major faceoff expected in the higher judiciary, particularly in Golaknath.? The Chief Justice was consulted only after a choice of appointments were made of judges. As per the autobiography of Justice P Jagannathan Reddy who was himself one of the 13 member Kesavananda Bench “there were ministers who set themselves to advise the Prime Minister to introduce constitutional amendments so as to vest the Executive with full powers by overruling Golaknath’s case and appoint judges who were committed to a policy as highlighted in the Parliament during the debate on this aspect”.

All said and done, these were the 13 wisemen (all men) who sat on the Bench that would redraw the counters of the Republic’s Constitution.? They were CJ SM Sikri, Justices JM Shelat, KS Hegde, AN Grover, AN Ray, PJ Reddy, DG Palekar, HR Khanna, KK Mathew, MH Beg, SN Dwivedi, AK Mukherjee and YV Chandrachud. Mr TR Andhyarujina, former Solicitor General India, had this to say about the outcome of the government’s effort to pack the Bench with “committed” judges. “Government’s initiative to appoint judges to decide in its favour only partially succeeded. But the composition of the thirteen judges bench from day one of the hearing presented a picture of a divided Court for 66 days”.? Andhyarujina is the renowned author of the book “Kesavananda Bharti Case”.? If the judgment were not delivered in this case by 24th April 1973, this longest case in history would have had to be tried again through another Bench as Chief Justice Sikri was retiring on that very day! As if the suspense involved in the case was not enough, Justice Beg fell ill engendering fears that at the end of it all there would be a necessity to constate a new Bench to hear the case de novo.? As things turned out Justice Beg recovered from his sickness and delivered a separate judgment on 24th April 1973 holding that there was no limitation on Parliament’s power to amend the Constitution.? Six judges on Bench through separate judgments felt that the amending power was limited by various inherent and implied limitations in the Constitution.? The other six judges felt that there no such limitations and that the Parliament could amend the Constitution without any restraint.? Justice H R Khanna, however, rejected the theory of “inherent and implied limitations of the Parliament’s power to amend the Constitution”.? He, however added in his judgment that any amendment to the Constitution had necessarily to retain “the basic structure and framework of the Constitution after the amendment”.? In conclusion, in his judgment he stated “The expression ‘amendment of the Constitution’ does not enable Parliament to abrogate or take away fundamental rights or to completely change the fundamental features of the Constitution so as to destroy its identity.? Within these limits Parliament can amend every article”.? The view of the majority in the end had this to say duly signed by 9 judges stating inter alia that Golaknath’s case was overruled and more importantly that Article 368 does not enable Parliament to alter the basic structure of the Constitution.? This case saw some of the leading legal luminaries of the day like Mr N A Palkhiwala representing the Petitioner and Mr Niren De, the Attorney General representing the Union.

The government on its part delayed the announcement of the name AN Roy as the new Chief Justic in order to ascertain the stand taken by various judges on the Bench in this case.? As a consequence, Justices Shelat, Hegde and Grover were superseded for obvious reasons.? The government also filed a petition to the apex Court to review its earlier decision in Kesavananda. On 10th November 1975 a new Bench of 13 judges commenced its hearing to review the earlier order. Two days later this Bench was dissolved abruptly without even bothering to give a reason for this move thereby bringing the curtains down on a momentous struggle in Indian legal history.? Though no reasons were given for dissolving the Bench so abruptly legal pundits were of the view that the Chief Justice had developed cold feet about the manner in which he had ordered the Review and the inherent merits of the Review itself.

Having seen how a new concept of a basic structure theory entered the Indian constitutional lexicon let us now understand how this Doctrine has impacted the constitutional morality of the land ever since.? First, the concerns:

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1.?????? The Doctrine lacks a clear definition of the basic structure, which can lead to differing interpretations and confusion.? A recent example is the 2020 debate on the Citizenship Amendment Act (CAA), where the question of whether the CAA violates the basic structure of the Constitution remains contentious.

2.?????? Some experts argue that the Basic Structure Doctrine allows the judiciary to exercise excessive control over the legislative process.? For instance, in the 2019 National Judicial Appointments Commission (NJAC) case, the Supreme Court’s decision to strike down the NJAC Act raised concerns of judicial overreach.

3.?????? Critics contend that the Doctrine could disrupt the balance of power between the three branches of government. The 2019 Sabarimala case, where the Supreme Court’s verdict allowed women of all ages to enter the temple, led to concerns about the judiciary’s disproportionate influence over constitutional matters and its interference with the legislative domain.

4.?????? The Basic Structure Doctrine has raised concerns about the erosion of parliamentary sovereignty, as it limits the Parliament’s ability to amend the Constitution. The 2018 Triple Talaq Act debate saw critics arguing that the judiciary’s involvement in assessing the constitutionality of the Act might undermine the democratic principle of a representative government.

5.?????? The Doctrine might make it more difficult to amend the Constitution, even when such amendments are necessary to address changing societal needs or correct perceived flaws in the document. For example, the debate surrounding the Uniform Civil Code has been hindered by concerns about violating the basic structure.

6.?????? The lack of a definitive list of elements that constitute the basic structure can lead to subjectivity in the judiciary’s decision-making process. The 2018 verdict on Section 377 of the Indian Penal Code, which decriminalised consensual same-sex relations, illustrates the potential for subjectivity and unpredictability in the application of the Doctrine.

7.?????? Since the determination of the basic structure is left to the judiciary, there is a risk that judges’ personal beliefs or political inclinations could influence their decisions. The 2019 Ayodhya verdict, where the Supreme Court ruled in favour of constructing a Ram Temple at the disputed site, raised concerns about the potential for political bias in the judiciary’s decision-making process.

The Need and Necessity of the Basic Structure Doctrine in Future

1.?????? Preserving Constitutional Integrity: The Basic Structure Doctrine helps maintain the core values and principles of the Constitution. By safeguarding the fundamental elements, it ensures that the Constitution’s essence is not compromised, even as it evolves over time.

2.?????? Judicial Review: The Doctrine plays a crucial role in enabling the judiciary to review and, if necessary, strike down amendments that violate the Constitution’s basic structure. This power of judicial review is essential in preserving the sanctity of the Constitution and preventing potential abuses of power.

3.?????? Balancing Power: By limiting the Parliament’s ability to make sweeping constitutional amendments, the Basic Structure Doctrine helps maintain a balance of power among the branches of government. This balance is vital for the proper functioning of a democratic system.

4.?????? Adaptability: While the Basic Structure Doctrine limits the scope of constitutional amendments, it also provides flexibility for the judiciary to interpret the basic structure in the context of changing societal needs. This adaptability allows the Constitution to remain relevant and effective in addressing future challenges.

5.?????? Upholding Democratic Principles: By preserving the basic structure of the Constitution, the Doctrine helps uphold democratic principles, such as the rule of law, the separation of powers, and the protection of individual rights. These principles are essential for the continued functioning of a healthy democracy.

6.?????? Promoting Constitutional Stability: The Basic Structure Doctrine contributes to the stability of the Constitution by preventing radical or arbitrary changes that could disrupt the nation’s political and legal systems. This stability is important for maintaining public trust in the Constitution and fostering a stable political environment.

(Source: The Hindu, The Indian Express, The Hindustan Times, Outlook India, and Livelaw)

In conclusion, please permit me to quote an excerpt from the book “Nani Palkhiwala: The Courtroom Genius”.

“Subsequent events have shown the necessity of the basic structure doctrine and it has been the bulwark against repeated attempts of politicians to subvert the Constitution. It is now accepted by everyone in India that Parliament should not be given unlimited power to amend the Constitution. Whatever its defects and the manner in which the case was heard, and judgment delivered, the formulation of the basic structure theory saved democracy and preserved the rule of law. Our political leaders, with nothing else in mind but political vote banks and the next election, will never be able to destroy the basic features of our Constitution. And, finally, the marathon hearing yielded no relief to His Holiness Kesavananda Bharati or any of the other petitioners. But they have the consolation of being responsible for the basic structure doctrine and saving Indian democracy”.

Thank you.

Venkat R Venkitachalam