Another Republic Day, Same Question — ‘What Really Is The Basic Structure Of The Constitution?’

In the first part of this special series, on the 74th Republic Day, we will be deliberating on the ‘basic structure’ doctrine, expounded by the Supreme Court in the landmark case of Kesavananda Bharti v. State of Kerala. 

By a 7:6 majority, a 13 judge bench of the Supreme Court had held that, while the Parliament had authority to amend the Constitution, it did not have the authority to amend the ‘basic structure’ of the Constitution. 

Recently, the Vice President of India, Jagdeep Dhankar stated that parliamentary sovereignty and autonomy are quintessential for the survival of democracy and cannot be permitted to be compromised by the executive or judiciary. 

Referring to the basic structure doctrine, he said, ‘with due respect to the judiciary, I cannot subscribe to this’. 

This statement of the Vice President forces us to re-visit the history behind the basic structure doctrine and evaluate whether the basic structure doctrine is in fact necessary, in Indian Democracy. 

Events Preceding Kesavananda Bharti Judgement 

Soon after independence, several laws were enacted by the Congress-led Parliament. The courts came down heavily on the government and struck down several land reform laws, as they transgressed fundamental rights. 

Therefore, as a counter move, the parliament placed these laws in the Ninth Schedule of the Constitution — as any legislation placed in the Ninth Schedule would not be subjected to review by courts.

The Ninth Schedule was created with the primary objective of preventing the judiciary from interfering with the moves of the then Congress government. 

While the Judiciary was following the principles of the Constitution, the ruling party brought in measures to surpass judicial review of parliamentary actions.

As the Supreme Court sought to curtail the powers of the parliament, through a spate of amendments around 1971 and 1972, the Parliament sought to regain its lost ground. 

Absolute powers of amendment of the Constitution, now, vested with the Parliament, so much so that even fundamental rights could be amended by it. The President was made duty bound to give his assent to any amendment bill passed by the Parliament. 

These amendments were majorly related to the Congress party agenda of Land Reforms. This uncontrolled amending powers of the parliament came under challenge before a 13-judge bench of the Supreme Court in Kesavananda Bharti v. State of Kerala. 

Keshvananda Bharti And Beyond

Kesavananda Bharati, who was a monk, challenged the 1969 Land Reforms enacted by the communist government, which had affected his Mutt. Under the reforms, the Edneer Mutt lost a large chunk of its property. 

He argued that this action violated his fundamental right to religion (Article 25), freedom of religious denomination (Article 26), and right to property (Article 31).

The 13-judge bench of the Supreme Court delivered eleven separate opinions, with a majority of 7:6. The primary question before the Supreme Court was whether the power of parliament to amend the Constitution is unlimited.

In other words, could Parliament alter, amend, abrogate any part of the Constitution — even to the extent of taking away all fundamental rights?

The minority, however, in their dissenting opinion, were wary of giving the Parliament unlimited amending power.

The minority view delivered by Justice A N Ray (whose appointment to the position of Chief Justice over and above the heads of three senior judges, soon after the pronunciation of the Kesavananda verdict, was widely considered to be politically motivated), Justice M H Beg, Justice K K Mathew and Justice S N Dwivedi upheld the validity of all three amendments challenged before the court. 

Justice Ray held that all parts of the Constitution were essential and no distinction could be made between its essential and non-essential parts.

All of them agreed that Parliament could make fundamental changes in the Constitution by exercising its power under Article 368. Article 368 of the Constitution lays down the procedure for amending the Constitution. 

Subsequently, in order to overcome the negative impacts of the Kesavananda Bharti Judgement, the Parliament sought to amend Article 368 of the Constitution itself, by adding that no amendment of this Constitution made under this article shall be called in question in any court, on any ground.

It was also clarified that there shall be no limitation, whatsoever, on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution, under this article. 

In the Minerva Mills Judgement (1980), this move of the government was declared unconstitutional and the Supreme Court held that the limited power of the amendment of Constitution is itself a basic feature of the Constitution, which cannot be transformed into an unlimited amending power.

It was held that if the parliament could enlarge its limited amending power into an unlimited one, then it would be meaningless to a place a limitation on the original power of amendment.

Judicial Activism And Basic Structure Doctrine

One of the major criticisms of the majority opinion in the Kesavananda Bharati judgement, is that there was no unanimity about what actually is the basic structure.

The Supreme court did not clarify what the limit and extent of the basic structure doctrine is, and through this, the Supreme Court strengthened its power of judicial review much more.

Therefore, the criticism of the Vice President at this point in time cannot be said to be uncalled for. As in a way, the Supreme Court has now become the final arbiter of the Constitution. 

The Supreme Court can declare duly enacted Constitutional Amendments as unconstitutional if they violate the ‘basic structure’. The final authority to determine the extent of ‘basic structure’ of the Constitution vests with the Supreme Court only. 

Therefore, the question that rises here is how judicial discipline can be maintained. While judges are restrained by the text of the Constitution, the final interpretation vests in their hands.

Using the basic structure doctrine, a Supreme Court bench struck down the National Judicial Appointments Commission (NJAC). 

This case represents a glaring misuse of the basic structure doctrine by the Supreme Court. No attempt was made by the Supreme Court to explain, how judicial primacy in appointment is a part of the basic structure doctrine. 

Therefore, the criticism of the basic structure doctrine by the Vice President in light of NJAC Judgement, should indeed be meditated upon by the Supreme Court, along with necessary guidance from the executive.