The Kesavananada Anniversary:Basic Structure Doctrine

The objective of the Constitution makers inspired by the freedom movement was to usher in an egalitarian society by bringing about socio-economic reforms. Agrarian reforms were high on the Government's agenda. With this end in view land reforms legislation was brought. This came into conflict with the fundamental right to property, as it then obtained. Courts declared as unconstitutional land reforms laws as offending the right to property. The judiciary appeared as the stumbling block on the road to social reconstruction. The political executive had to respond keeping in view its promises and the public sentiment. Parliament, which was then the Provisional Parliament till the first general election in 1952 and comprising the same persons who were members of the Constituent Assembly enacted the Constitution 1^st Amendment in 1951. It introduced Arts 31A and 31B into the Constitution to shield agrarian reforms and other nationalization schemes against attack on the ground of inadequacy of compensation. It also brought in the device of Schedule IX which immunized all laws included therein from any challenge on the ground that it infringes any of the fundamental rights. It is a historical truth that some of the purposes and objectives of the Constitution would have been delayed or defeated but for this amendment.

In Sankari Prasad vs. Union of India (AIR 1951 SC 458) the Court held that Parliament's constituent power certainly included the power to amend fundamental rights and 'law' in Art 13 refers only to ordinary legislation and not constitution amendments. "To make a law which contravenes the Constitution constitutionally valid is a matter of constitutional amendment, and as such it falls within the exclusive power of Parliament."

We first come across the idea in the context of a constitution and constitutional amendment in the judgment of Cornelius, CJ of Pakistan in Fazlul Quadar Chowdhry vs Muhd.Abdul Haque (PLD 1963 SC 486) where he took the view that though the Pakistan President under the 1956 Constitution of Pakistan was empowered to remove difficulties, he had no power to remove a fundamental feature of the Constitution. The power would not extend to altering the fundamental features. Sankari Prasad was followed in Sajjan Singh vs. State of Rajasthan (AIR 1965 SC 845), but doubts about that legal position were expressed by Hidayatullah and Mudholkar, JJ. Hidayatullah, J. said that fundamental rights are not the playthings of a majority. Mudholkar, J. observed whether the basic features of the Constitution should be given a permanency; and whether making a change in a basic feature can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution.

Almost immediately in February 1965, Prof. Dieter Conrad, Head of the Department of Law, South Asia Institute of the University of Heidelberg, West Germany delivered a lecture on Implied Limitations on the Amending Power to the Law Faculty of Banaras Hindu University. Our great constitutional lawyer M.K.Nambyar borrowed this from the Professor and presented it to the Supreme Court in Golak Nath case. The Court, however, did not express any opinion in that regard and decided the case on a narrower basis in February 1967- Golak Nath vs State of Punjab (AIR 1967 SC 1643). There was also an article by Prof. Conrad- Limitation of Amendment Procedures and the Constituent Power (India Year Book of International Affairs XV-XVI 1966-67). The seed that was planted by Dr. Conrad, adopted in the arguments of the redoubtable Nambyar in Golak Nath was brought to flower and fruition by the impassioned advocacy and forensic brilliance of Nani Palkhivala in Kesavananda Bharati vs State of Kerala (AIR 1973 SC 1461).

In Golak Nath it was held 6:5 that Parliament had no power to take away or abridge any fundamental right and 'law' in Art13 included a Constitution amendment and therefore the inhibitions/limitations in Art 13(2) applied to that also. The stage was then set for the biggest and most significant constitutional case in India's history- the largest bench hearing for the maximum number of days and writing the longest judgment -Kesavananda Bharati vs State of Kerala (AIR 1973 SC 1461). The challenge was to the Constitution 24^th, 25^th and 29^th Amendments. By the Constitution 29^th Amendment the Kerala Land Reforms laws were included in Schedule IX. The Court was faced with an unenviable task. The Golak Nath judgment appeared to have laid down too wide and too wild a proposition which was clearly unsupportable and had to go. The Court wanted to save the Constitution from, what was alleged and the majority of the Court also believed to be, onslaughts on the Constitution. Over a period of time many laws were included in Schedule IX, rather indiscriminately.

It is against the backdrop of the foregoing that the issue of the basic structure of the Constitution arose and the Court dexterously evolved the basic structure doctrine which while holding that amendment to any part of the Constitution including Part III was permissible, sought to rein in that power by declaring that such amendment should not, however, destroy the basic features, framework or structure of the Constitution; what the basic structure is, is for the Court to decide as and when situations arise and cases present themselves.

The purported view of the majority as signed by 9 of the 13 Judges on the Bench in Kesavananda was: "Art 368 does not enable Parliament to alter the basic structure or framework of the Constitution." The special 13-Judge Bench declared the law in these terms, the challenge to various Constitution Amendments was repelled except that the second part of Art 31 C which made the declaration thereunder non-justiciable was held to be invalid as offending the basic structure. Khanna, J. whose judgment tilted the balance approvingly quoted Prof. Conrad: "Any amending body organized within the statutory scheme, howsoever verbally unlimited its power, cannot by its very structure, change the fundamental pillars supporting its constitutional authority."

For the first time in Kesavananda the Court by a slender majority of 7:6 declared that while Parliament had the power to amend every part of the Constitution including Fundamental Rights in Part III and there were no implied limitations on the amending power, the power did not extend to amending 'the basic structure of the Constitution', a term not found in the Constitution. No Court until then had asserted a power to annul a constitutional amendment on the basis of such a nebulous concept and one that originated from the Court itself- a judicial innovation and a bold one at that! Six judges held that the amending power was limited by various inherent and implied limitations, while six other judges held that there were no limitations on the amending power. Khanna, J. expressly rejected the theory of inherent or implied limitations and held the amending power was plenary, but the word 'amendment' by its limited connotation did not permit abrogating the Constitution and therefore subject to retention of the basic structure or framework of the Constitution, any part of it could be amended.

Commenting on these developments, Granville Austin in his Working of a Democratic Constitution remarked: "The nine judges (who signed the summary of the Kesavananda judgment) seem to have performed an act of statesmanship, even of legerdemain. The Court mollified the Government by overruling Golak Nath and upholding the three amendments, in effect nearly returning to the Sankari Prasad case position, while preserving, indeed strengthening, its own power of judicial review. The history of Golak Nath is a cautionary tale of unintended consequences. The fears for civil liberty and for institutions of the Constitution that fed that decision's rigid restrictions on amendment evoked amendments hazarding liberty and the Constitution- as their use during Mrs. Gandhi's Emergency soon would demonstrate. The amendments, in their turn, produced Kesavananda which entrenched the Fundamental Rights- as even the Constituent Assembly had not done- while strengthening the courts under the Constitution."

The Kesavananda judgment salvaged something precious. This doctrine was accepted and applied in Indira Gandhi vs Raj Narain (AIR 1975 SC 2299). As Chandrachud, J. said the ratio of the majority in Kesavananda Bharati is that the power of amendment cannot be exercised so as to damage or destroy the essential features or basic structure of the Constitution, whatever those expressions may comprehend. And Minerva Mills vs Union of India (AIR 1980 SC 1789) stated the theme song of the majority in Kesavananda: "Amend as you may even the solemn document which the founding fathers have committed to your care, for you know best the needs of your generation. But the Constitution is a precious heritage, therefore you cannot destroy its identity."

This then is the genesis and purport of the basic structure doctrine. Thereafter the theory has been invoked and applied in many cases- some justifiably, some indiscriminately and sometimes wholly unjustifiably.

When we try to understand and define basic structure and dwell upon the doctrine, difficulties arise. Is there a match between the label and the thing? To quote T.S.Eliot, "When a term has become so universally sanctified as 'democracy' now is, I begin to wonder whether it means anything in meaning too many things." Perhaps, much the same can be said about the basic structure doctrine.

The raison d'etre for the basic structure doctrine apparently is: Every measure or action-executive or legislative-has to conform to the limits set by the Constitution. It is open to challenge and judicial scrutiny on recognized grounds. A legislation can be assailed only on the ground of lack of legislative competence, violation of fundamental rights or any other constitutional limitations. The ultimate power and responsibility of law making vests in the legislature. But Parliament exercises not only legislative power. While acting under Art 368 Parliament exercises constituent power and the product of that exercise is an amendment to the Constitution which is not amenable to substantive challenge on any grounds of challenge to a legislation. It is to ensure that by the process of amendment the Constitution is not denuded of its core or made to suffer a loss of identity that the doctrine of basic structure has been judicially conceived and evolved as a substantive and only ground to challenge a constitutional amendment. Every exertion of constituent power, including the inclusion of laws in Schedule IX, after 24 April, 1973- the date of the Kesavananda judgment- is subject to judicial scrutiny and interference on the touchstone of the basic structure. It is to be applied wisely and cautiously in appropriate cases.

Few constitutional issues, it is rightly said, can be presented in black and white, they are no matters of icy certainty. In law, particularly constitutional law, there are no absolutes. Differences of degree imperceptibly merge into differences of kind. But a trained judicial perception would be capable of discerning the nuances and which of the gradations make genuine difference. That alone is the real assurance for the proper use of the judicial power. The basic structure doctrine is the only substantive ground of attack against a constitutional amendment. It is unavailing as a ground of judicial review of legislation, and certainly not of executive action. That is the consistent trend of the Supreme Court decisions, whatever some untenable drift may suggest. The doctrine is wisely and well advisedly confined to such challenge. Otherwise it would open a Pandora's box. It would pervert the constitutional scheme. Indeed it may not be wrong to say that invoking the basic structure doctrine to test the validity of ordinary legislation would amount to undermining and destroying the Constitution's basic structure. As Krishna Iyer, J. picturesquely put it, "The constitutional fascination for the basic structure doctrine cannot be made a Trojan horse to penetrate the entire legislative camp."

By its very name and the reason that the basic structure doctrine is to ensure that the core of the Constitution is not destroyed or abrogated, basic structure and the touchstone of testing constitutional amendments is and must be what is contained in the original Constitution and not what is added later either by an amendment or judicial gloss or interpretation and whose legitimacy and correctness itself may be in serious doubt. The basic structure of the Constitution can only relate to what is contained in the Constitution. Thus when an amendment to the Constitution is challenged as damaging the basic structure, it would have to be tested with reference to what the Constitution originally said; and not with reference to judgments or later interpretations. Or else the basic structure will not be basic and firm but fluctuating.

The expressions basic features, basic structure, basic framework have been interchangeably employed. For the first time Chelameswar, J. in his dissent in NJAC gave another dimension, and with respect rightly so, distinguishing basic features from basic structure or framework. The two expressions convey two different ideas. Basic features are the components of the basic structure. The basic structure of the Constitution is the sum total of the basic features. Either a particular article or set of articles can constitute a basic feature. Amendment of one or some of the articles constituting a basic feature may or may not result in the destruction of the basic structure. It all depends on the context. The basic features identified so far are not just constitutional provisions alone but also emanations. They may not be emanation of any single article, but concepts emanating from a number of articles each of them creating rights or obligations or both. They are referred to as elements. For example, democracy is a basic feature. It is based on universal adult franchise embodied in Art 326 which is an element of it. The prescription of a minimum age for exercising the right is a component. But an amendment varying the minimum age for exercising franchise will not be abrogative of the basic feature of democracy resulting in the destruction of the Constitution's basic structure. As to when the abrogation of a particular basic feature can be said to destroy the basic structure depends upon the nature of the basic feature sought to be amended and the context of the amendment. There is no universally applicable test vis-à-vis all basic features. "In law context is everything." All this, in a way, is really an elaboration of what was laid down in Indira Gandhi (AIR 1975 SC 2299), Waman Rao (AIR 1981 SC 271) and Bhim Singhji (AIR 1981 SC 234).

Significantly, before any of these judgments way back in 1974 itself Palkhivala stated: The principle that the basic structure or framework of the Constitution cannot be altered gives a wider scope to the amending power than the principle that none of the essential features of the Constitution can be damaged or destroyed (see: Our Constitution Defaced and Defiled, p 149).

The Kesavananda doctrine represents the high watermark of judicial innovation curtailing Parliament's power of amending the Constitution on some vague, evolving concept incapable of definite or precise formulation giving the judiciary a unique power of nullifying constitutional amendments. The basic structure doctrine shifts the emphasis of democratic constitutionalism and alters the very foundation on which constitutional power is divided between the plenary amending body and the judiciary.

Can it not be said that our Constitution as enacted failed to meet the aspirations of the nation? Land reforms and agrarian revolution were high on the political agenda during the freedom struggle. Did the constitutional provisions or some of them and the judicial interpretation thereof prove to be stumbling blocks on the road to this reform? Did that not necessitate and justify the Constitution First Amendment? To recall the words of a scholar, "….Conformity to the rule of law is not itself an ultimate goal. …After all the rule of law is meant to enable the law to promote social good. …Sacrificing too many social goals on the altar of the rule of law may make the law barren and empty."[Joseph Raz, The Rule of Law and its Virtue (1977) 93 L Q R 195,211].

Successive judgments have simply proceeded on the basis that Kesavananda has held that an amendment to the Constitution cannot alter its basic structure. This has expanded in a manner which was perhaps never foreseen by its authors and as T.R. Andhyarujina said it is doubtful if even its ablest and most vocal exponent, Palkhivala really argued for this outcome when he espoused implied limitations on Parliament's amending power. The doctrine has become a constitutional axiom and has passed into the currency of legal and political thinking.

The basic structure doctrine is a product of its time and history. The doctrine is neither an unalloyed blessing nor an unmitigated disaster. Like many other tools it has to be judiciously and cautiously employed. It is a rare weapon to be used sparingly. Unjustified and indiscriminate invocation and application of the basic structure doctrine will itself be an abrogation of the Constitution's basic structure. As held by the Supreme Court in Ambika Prasad Mishra vs State of Uttar Pradesh (AIR 1980 SC 1762), "It is fundamental that the nation's Constitution is not kept in constant uncertainty by judicial review every season because it paralyses by perennial suspense all legislative and administrative action on vital issues deterred by the brooding threat of forensic blow up."

The basic structure doctrine prohibits amendment to the Constitution in such a manner that would destroy its basic structure or framework. What is basic and immutable is the all important issue. What is given by the Constitution can be taken away. But certain human rights and fundamental freedoms- like the right to life and liberty, human dignity and so on are not the gift of any law or Constitution; they are recognized by the Constitution, without such recognition, the Constitution itself would be incomplete. What is not a gift of the Constitution but is something which inheres in every person is immutable and beyond the reach of the constituent power. It is such rights or concepts which are basic and cannot be abrogated. That, however, is the position in any civilized society/polity even in the absence of the Kesavananda doctrine.

Be that as it may, we will constantly remember Palkhivala and his stellar contribution to our constitutional jurisprudence. When comes such another?

Age shall not weary him, nor the years condemn; at the going down of the sun and in the morning we will remember him.