Basic Structure Doctrine Turns 50 Next Year—Why That's 50 Years Too Many

As our nation celebrates 75 glorious years of independence, we cannot help but dwell upon our constitutional history and its highs and lows – every achievement and every disappointment that has gotten us to where we are today. Any scrutiny of constitutional history is incomplete without a thoughtful deliberation on the doctrine of basic structure coined in the case of Kesavananada Bharati.

Even though the doctrine has been positioned as unchallengeable by stalwarts of Indian constitutional law, it is imperative to highlight the tremendous damage this doctrine has done to the development of Indian jurisprudence and its far reaching impact on the lives of the common citizen.

The first question that comes to mind while deliberating upon the doctrine of basic structure, is why the Hon’ble Court felt the need to coin it in the first place.

Article 13(3) of the Indian Constitution defines ‘law’ to include any ordinance, order, bye-law, rule, regulation, notification, custom or usage but does not include the term ‘amendment’. What this essentially meant is that, while judges had the power to judicially review ‘law’ as it was defined in Article 13, they did not have the power to review constitutional amendments.

The doctrine of basic structure was thus propounded by the judiciary, to give unto themselves, the power to sit in review over constitutional amendments to ensure that the core of the constitution, as the founding fathers envisaged it, was not defaced.

While the intention was noble, the practical implication of its coinage was far from pleasant.

The Court, in its eagerness to deal with the imaginary problem of executive excesses, borrowed this doctrine from the works of Dr. Dieter Conrad, an acclaimed German jurist whose thoughts were largely influenced by Adolf Hitler’s exercise of dictatorial powers and the consequent amendment and subversion of the German Constitution. Having no Indian precedent to rely upon where a constitutional amendment had been challenged on substantive grounds, Mr. Nani Palkhivala , who argued the case, based his passionate plea before the Bench, largely on the research of Professor Conrad.

The 66-day hearing saw intense emotions on display and finally yielded 11 judgments from the 13 judge bench, which were detailed and informative treatises with no real conclusion on the two real questions that actually needed to be answered – what specifically constitutes the basic structure of the constitution and to what extent can Parliament exercise its amending power.

A judgment delivered by the Supreme Court attains precedential value as far as its ratio decidendi or the crux of the decision, is concerned. In the Kesavananda Bharati judgment, there was no unanimity among the judges as to what constituted the basic structure insomuch as a different set of features is enlisted by each judge with one of them even quoting a part of the Preamble as it is.

Besides, the theory of implied limitations, which is the very basis of the basic structure doctrine in its prevalent form, was propounded by only six of 13 judges. Justice Khanna, the seventh judge whose judgment is counted as a majority opinion, expressly disagreed on this count.

Most people already know that ‘Kesavananda Bharati’ was argued for a period of about 66 days in 1972. What is not often spoken about is the decision to review the judgment taken by the then Chief Justice AN Ray in the year 1975.

While the prevalent political climate at the time was obviously not apt to review a judgment that coined the basic structure doctrine, with Indira Gandhi’s Emergency wreaking havoc, there is now no doubt that the judgment did require an honest review.

During the review, the only question repeatedly asked to the Ld. Attorney General was if the doctrine impeded any measures sought to be brought by the government in public interest. The Attorney General answered in the negative. The review of ‘Kesavananda Bharati’ went on for a grand total of two days after which the Bench was suddenly dissolved.

Though the Ld. Attorney General could not point out any impediment the doctrine posed in the two odd years it had been in force, there are now a host of cases in which the doctrine of basic structure and its ever increasing scope has caused substantial difficulties.

It, in fact, threatens to cause a potentially disastrous faceoff between the legislature and the judiciary due to a complete disregard for the doctrine of separation of powers.

It is unfathomable, how the doctrine of basic structure as a precedent changed the entire judicial landscape of the country despite a complete lack of any majority consensus on what it actually means or stands for; its only ticket to universal legitimacy being that Mrs. Gandhi imposed the Emergency shortly after the doctrine was propounded, confirming the worst fears of both judges and academics.

So what if the Preamble to the Constitution was actually amended during the Emergency under the watchful eyes of, and with the explicit consent, of the Judiciary to define India’s economic character to be “socialist”, against the express wishes of the framers of the Constitution – a change that has tremendously hurt our country’s growth potential over the years and continues to do so. A change that was permitted to be made despite the basic structure doctrine, only because it aligned with the political philosophy and worldview of the judges who then occupied the Bench.

The basic structure doctrine reached its lowest point of application in recent times in the NJAC case where the 99th constitutional amendment for the formation of a National Judicial Accountability Commission, a constitutional amendment passed with a strong parliamentary mandate, was nullified by the Supreme Court by quoting the doctrine even at a time when critical discussions about the opaque nature of the collegium system were rife.

In a hypothetical basic structure doctrine that is fair to we, the people of India, judicial accountability should be as much a part of the basic structure as is judicial independence. But the law as it currently stands, makes that an impossible conversation to have.

What is even more worrying is the ever increasing contours of the application of the doctrine, not just what it shields in substance.

Until the year 2010, in the cases of Kuldip Nayar v. Union of India[2006(7) SCC 1], Ashok Kumar Thakur v. Union of India [2008(6) SCC 1] and Madras Bar Association [2010(11)SCC 1], the Hon’ble Supreme Court held that only constitutional amendments were subject to a basic structure review and legislative measures were not subject to the application of the doctrine. By the year 2014, in the case of Madras Bar Association v. Union of India[2014(10) SCC 1] and later in 2016 in the case of Supreme Court Advocates on Record Assn. v. Union of India[2016(5)SCC 1] the Court took a diametrically opposite stand to now say that the basic structure review would apply even to ordinary legislations if the challenge raised to them was based on one of the basic features of the Constitution.

This new enlargement of the scope of the doctrine, puts at risk crucial legislations and executive actions with possible international repercussions such as the Citizenship Amendment Act and the revocation of Art. 370, challenges to which are currently pending before the Hon’ble Supreme Court. It will become impossible for any government to function effectively, if every other legislation passed by it has to effectively be cleared by the Hon’ble Courts before they can be unquestionably implemented.

It may not be completely improper to say that this tool of excessive judicial review is being utilised by busybodies to create dissonance in seamless governance with the eventual goal of a policy-paralysis.

The truth is that the basic structure doctrine which claims to preserve the core values of the original constitution, has itself proved to be against the basic structure of the constitution by striking at, and majorly obliterating, the doctrine of separation of powers, which is a core feature of the original constitution.

It has permitted and facilitated crucial changes to the original constitution, which when challenged, were judicially justified only on the basis of the basic structure doctrine, without having to delve deeper to decide upon their actual legality. These changes have actually completely changed the structure and fabric of the original constitution.

It is widely accepted and understood that judges deliver judgments on the basis of their formative years, their lived experiences and their political and philosophical leanings. In fact, the story about John Marshall, one of the most famous American Chief Justices, goes that after his Bench of nine judges would hear important constitutional cases, he would turn to his colleague Joshua Story J. and say “Story, this is the decision. Now you go and find the reasons for it”. This attitude, when scrutinised in the Indian context, is extremely frightening because in America, not only are judges elected by the Senate, but also the judiciary does not enjoy such wide and unchecked powers of review.

In India, a question that is extensively focused upon and repeatedly asked is – how far can we trust Parliament and our elected representatives? Would it then be completely misplaced to ask the question – how far can we trust our unelected judicial representatives?

A reading of the Kesavananda Bharati judgment gives a sense that the Hon’ble bench was desperately trying to save some aspect of the Constitution – they just did not know what or how to.

As we embark upon our 75th year of independence, it is vital for the legislature, executive and the judiciary to take it upon themselves to exhume the remains of this judgment and answer these unanswered questions and give the nation the clarity that it deserves.