Gogoi Is Right On Basic Structure Doctrine: It Has Judicial Manoeuvre Written All Over It

Former Chief Justice of India, Ranjan Gogoi, set the cat among the pigeons when he remarked that the idea of the Constitution having an unalterable basic structure is “debatable”.

Speaking during the debate on the Delhi Services Bill in the Rajya Sabha a few days ago, where one member invoked the idea of “basic structure” to oppose the bill, Gogoi said: “There is a book by (Tehmtan) Andhyarujina, the former Solicitor General of India, on the Kesavananda Bharati (1973) case (which brought forth doctrine of the “basic structure”). Having read the book… my view is that the doctrine of the basic structure of the Constitution has a debatable, a very debatable, jurisprudential basis.”

His comment drew an immediate riposte from the sitting Chief Justice of India, D Y Chandrachud, whose constitutional bench was hearing the article 370 case.

When his attention was drawn by Kapil Sibal to Gogoi’s statement in Parliament, the CJI replied: "Mr Sibal, when you refer to a colleague, you have to refer to a sitting colleague. Once we cease to be judges, whatever we say, they're opinions, they are not binding.”

This is absolutely true. In fact, even observations made in  courts during hearings do not amount to anything more than opinions unless written down in a judgement.

But we also need to point out here that the current CJI believes in the concept of the “basic structure,” and, in one of his recent lectures, he remarked: “The basic structure of our Constitution, like the North Star, guides and gives certain direction to the interpreters and implementers of the Constitution when the path ahead is convoluted.”

However, we need to understand why former CJI Gogoi made his remark, and why he is right in pointing out the problems in resorting to the “basic structure” argument every now and then.

There is merit in saying that Parliament cannot have unlimited power to amend the Constitution, but it is a bit rich to conclude that an unelected judiciary will always have the last word in deciding what those basic features of a constitution written in the late 1940s are today, or what they should be. 

The undeniable features of our Constitution are the following, and they cannot be changed without overwhelming rationale.

One is that we are a democracy, and our rulers need to periodically ask for permission from citizens to decide if they can continue to represent them.

It follows that elections must be free and fair, and citizens must not be arbitrarily deprived of their freedoms, etc.

It also follows that other basic features can be deduced from these two premises: one is that there must be a separation of powers between institutions of the state; and another is that every law must pass the test of fairness and reasonableness in its intent and content.

Put simply, there is no basic structure beyond these commonsense principles that should apply to any democracy.

Unfortunately, those “liberals” who do not like the kind of people the voters actually end up electing, want to use the judiciary to nullify the decisions made by elected representatives. Even more unfortunately, the judiciary has been willing to play ball on many occasions.

The constitutional courts, ie, the high courts and the Supreme Court, frequently enter the legislative domain through the use of three devices: one is, of course, the basic structure doctrine, which gives them an entry into legislative areas.

The second is the use of public interest litigation (PIL) in order to junk or rewrite existing laws. Or even write new ones. The enabling third device is Article 142 (read what it says here), which allows the judiciary to directly make the law whenever it feels it is needed. 

And this need to rewrite or make the law can be arbitrary and often unacceptable, as when the court decided to ban the opening of bars on highways or impose taxes on SUVs entering polluted Delhi. How can taxation ever be a judicial right?

But this article is not about the general ways in which the constitutional courts encroach on the legislative sphere, but to question the doctrine of the “basic structure” itself. As we shall show later, the method used by the court to arrive at this doctrine is itself questionable.

The doctrine emerged in the Kesavananda Bharati case, which was decided by a mammoth 13-judge bench in 1973. (Read the summary and some details about the case here, here, here). You can read about the roundabout way in which the bench arrived at the doctrine by patching up a summary that did not quite flow from the actual judgements written by 11 of those judges here.

In this case, Swami Kesavananda Bharati, head of the Edneer Mutt in Kerala’s Kasaragod district, challenged the state government’s right to impose curbs on the management of the math’s religious properties.

The Swami asked the court to allow it manage its properties without government meddling.

The details of the case, and outcomes for the mutt, are not important here, for it is in this case that the 13-judge bench trotted out the idea of the “basic structure” of the constitution which cannot be tampered with by any legislature at the state or central levels.

The judgement held that “the basic structure of the Indian Constitution could not be abrogated even through a constitutional amendment. Parliament…cannot cease to be a creature of the Constitution and become its master.” (Italics mine)

Many questions arise even if one were to accept this principle.

One, can we have the “basic structure” argument used repeatedly in judicial verdicts when it has not been clearly outlined?

Two, how has the Supreme Court applied this principle where it is itself an interested party?

For example, one can argue that the separation of powers should be part of the basic structure, but when appointing judges to the higher judiciary, why is the Supreme Court collegium the deciding authority?

Where is the separation of power here?

Three, if Parliament, a creature of the Constitution, cannot become its master, as the Kesavananda Bharati judgement said, can the judiciary, which too is a creature of the Constitution, become its master either?

As things stand, the judiciary can overturn a law, appoint its own members, and make new law under Article 142. This sounds more like kritarchy, or rule by judges, not constitutionalism.

Four, how can the abolition of a fundamental right (the right to property) not attract any judicial intervention? Is basic structure to be interpreted by the judiciary based on its own ideological moorings? Or the specific composition of the bench hearing any matter?

Five, can a constitution that has been amended more than a hundred times in 75 years, with more changes underway, be said to have upheld any basic feature originally continued in it?

Six, even assuming the judiciary should be the master and not the Constitution, why is it that the ninth schedule, which disallows laws listed under it from being examined by the judiciary, has passed muster?

If the judiciary can be specifically barred from examining some laws, why not give Parliament more leeway in law-making too?

Seven, in the Kesavananda Bharati judgment, the verdict in favour of “basic structure” was a wafer-thin 7:6 in a 13-judge bench, which implies that nearly half the bench did not agree with the idea.

One of them was the current CJI’s father, Y V Chandrachud, who later went on to become CJI himself.

In fact, 11 of the 13 judges wrote their own separate judgements, leaving scope for conflicting interpretations of it. But for the intervention of the head of the bench, CJI S M Sikri, the basic doctrine idea may have remained shrouded in legal confusion.

But in a controversial move, says this article in Bar & Bench by Sachin Datta, a Supreme Court advocate, CJI Sikri got nine of the 13 judges to sign a simpler summation of the effective parts of the verdict thus. He got them to sign an order sheet which, inter alia, read in paragraph 2:

“Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution”.

This is remarkable, for Article 368, which details Parliament’s powers to amend the Constitution with a few exceptions, has this to say in clause (5):

“For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.” (emphasis mine)

If the Sikri bench got nine judges to sign this, it must have drawn its strength from Article 13(2) of the Constitution, which seeks to strike down laws that are “inconsistent with or in derogation of fundamental rights”.

Article 13(2) reads:

“13 (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.”

But yet, the judiciary never made a big fuss about the abolition of property rights, which remained a part of fundamental rights till the second half of the seventies.

Another problematic aspect of the Kesavananda Bharati “basic structure” doctrine is that there was an effort to set up another 13-judge bench to reconsider its verdict, but somehow that effort bit the dust quietly.

Read what this report by T R Andhyarujina, the senior advocate that Ranjan Gogoi referred to in the Rajya Sabha, had to say on this, here.

Worse, Andhyarujina, who had a ring-side view of the Kesavananda Bharati case at the time it was being heard in the Supreme Court, wrote this in SCC Online three years ago:

“As an active participating lawyer in the 76 days' hearing of Kesavananda spread over five months in 1972-1973, and being privy to some of the inside goings-on in that case, I have maintained that the so-called decision in Kesavananda, that Parliament has no power to amend the basic structure of the Constitution, was not truly the decision emerging from 11 (separate) judgments in that case.” (Italics mine)

Wow! Just wow! The “basic structure” doctrine was not the result emanating from the 11 judgements in the Kesavananda case itself, but from some manoeuvres later.

Andhyarujina explains how this happened: “It is important to note how the review of Kesavananda came about. The 11 judgments in Kesavananda Bharati were controversial from the moment they were delivered in the Court on 24-4-1973.

At the end of the delivery of the judgments by 11 judges, Chief Justice Sikri produced a “The View of the Majority” by way of six propositions for the signatures of all the judges. Proposition 2 of “The View of the Majority” was (that) “Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution”.

This “View of the Majority” was not debated or considered in open court before it was given to the other judges to append their signatures. Four judges, justices A N Ray, K K Mathew, M H Beg and S N Dwivedi visibly and almost indignantly refused to sign it in open court. It was signed by the remaining nine judges of the court. Only the court archives show this.” (Read Andhyarujina’s full column here. The link will need you to register before reading the full article).

Here’s the obvious truth: the verdict in the Kesavananda Bharati case, which gave us the “basic structure” doctrine, is itself the result of judicial manoeuvring, even legerdemain. Eleven different judgements were reduced to a half-page note that the CJI effectively asked his 13-judge bench to sign, four of whom refused.

We need to discuss this as much as whether or not there is something called basic structure to the Constitution. More so when it seems to have been manufactured as a last-minute, and possibly over-simplified, summation of 11 different judgements.