[This post is part of a special series celebrating 47 years of the decision in Kesavananda Bharti v. State of Kerala, wherein the Supreme Court of India laid down the 'Basic Structure Doctrine'].Borrowing of legal principles from different legal systems is not a new concept and it has been happening since centuries. Though foreign judgments do not have binding value, but always...
[This post is part of a special series celebrating 47 years of the decision in Kesavananda Bharti v. State of Kerala, wherein the Supreme Court of India laid down the 'Basic Structure Doctrine'].
Borrowing of legal principles from different legal systems is not a new concept and it has been happening since centuries. Though foreign judgments do not have binding value, but always have a persuasive force. Indian Judgment "Kesavananda Bharti v. State of Kerala [[1]] - (hereinafter referred to as "Kesavananda Case") delivered in 1973, has been influencing the foreign legal systems since then. The "Basic Structure Doctrine" formulated in Kesavananda Case persuaded many constitutional courts, leading to recognition of this principle in their countries. This doctrine aims to ensure that essential features of a Constitution should not be destroyed and supremacy of the Constitution be preserved. In this article, I have listed out the instances where this landmark judgment was cited and relied by foreign courts.
After 16 years of Kesavananda verdict, Bangladesh Supreme Court also recognised the Basic Structure Doctrine in Anwar Hossain Chowdhary v. Bangladesh [[2]]. In this case, M.H. Rahman, J. observed:
"…At times, I had the feeling that the Court is rehearing Kesavanand, the appellants relying on the majority decision, the respondent relying on the minority one." [[3]]
In this case, the eighth amendment to Bangladesh's Constitution was challenged, whereby the Parliament had established six permanent benches of the High Court Division. [[4]] These benches were conferred with exclusive territorial jurisdiction, which negated the provision of transfer of cases from one court/bench to another. Further, as per amended provision, on nomination by the Chief Justice, the Judges were deemed to be transferred to the permanent bench. [[5]]
The Bangladesh Supreme Court after careful consideration by a majority of 3:1 held the amended Article 100 as ultra vires, observing as follows –
- Impugned amendment in the name of creating permanent benches has attempted to create a parallel to High Court Division. Setting up rival courts to High Court Division and introducing territorial divisions amounts to disruption of constitutional fabric. [[6]] In Bangladesh, unitary form of the State has been adopted; which is also reflected in unitary structure of the Supreme Court. [[7]] The impugned amendment has effect of disturbing this unitary feature of judiciary.
- Provision regarding transfer of cases is essential for dispensing justice, which has been negated by virtue of this amendment; thus, impairing 'Rule of Law'. [[8]]
- Parliament being a creation of Constitution, derives all its powers from Article 7 [[9]] and thus, does not have unlimited power to amend the Constitution. [[10]]
- The Constitution has erected three structural pillars e.g. Legislative, Executive and Judiciary. By virtue of this amendment, one structural pillar i.e. Judiciary has been destroyed, which is not permissible. [[11]]
- If an amendment of a constitutional provision is the same thing as a law it is the Constitution whose position will fall down to the level of ordinary legislation. [[12]]
- Independence of judiciary is a basic feature of the Constitution and transfer of judges by a deeming provision is violative of Article 147. [[13]]
While discussing the impact of Kesavananda Case in foreign countries, it is really important to refer Pakistan's standpoint, since one school of thought (as discussed in earlier post), considers that Basic Structure Doctrine in India was inspired from judgment of Chief Justice AR Coohelius of the Pakistan Supreme Court in Fazlul Quader Chowdhry v. Mohd. Abdul Haque [[14]], wherein Hon'ble Justice used the phrase "Fundamental feature of the Constitution." However, until 2015, the Pakistan Supreme Court refrained from accepting Basic Structure Doctrine in clear terms; but on August 5, 2015, a historic judgment was delivered by a bench of 17 Judges in District Bar Association v. Federation of Pakistan [[15]], wherein unamendability of fundamental provisions of Constitution was recognised. In this case, only four judges out of seventeen rejected the notion of implied limitations on powers of Parliament to amend the Constitution. [16] Other five judges accepted 'implied limitations', but not 'Doctrine of Basic Structure'. [16] This Judgment though cleared the clouds on acceptability of the Doctrine in Islamic State; but challenge to the impugned amendments failed.
Two Constitutional amendments were challenged in this case – one amendment introduced new procedure for the judicial appointments and second, empowered the military courts to try criminal cases involving particular class of individuals. [[16]] While assailing the said amendments, counsels from both sides heavily discussed Kesavananda Case. The plurality opinion written on behalf of eight Judges after outlining origin and history of Basic Structure Doctrine observed that this principle laid down in Kesavananda Case has been neither universally accepted nor rejected. [[17]] Each country has decided its applicability looking into its own constitutional history and experience. The Court discovered that in Constitutional history of Pakistan, the issue regarding applicability of Basic Structure Doctrine had been encountered or touched upon in nine cases; though not definitely determined. After analysing all these cases, the plurality of Judges held that:
"…Constitution is not a bunch of random provisions cobbled together but there is an inherent integrity and scheme to the Constitution evidenced by certain fundamental provisions, which are its Salient and Defining Features." [[18]]
It was further opined that it is not possible to exhaustively list down the basic features, however, "…Parliamentary Form of Government and Independence of Judiciary are certainly included in the Prominent Characteristics." [[19]]"[But]…for deterring (sic) the Salient Features of the Constitution …, we cannot and should not look outside the Constitution to abstract, political, philosophical, moral and ethical theories…" [[20]]
I would like to emphasize that Indian Supreme Court also has not provided a comprehensive list of basis features; it needs to be decided on the facts of each case whether a particular feature is 'Basic Feature' or not.
Pakistan Supreme Court further addressed the issue of 'Supremacy of the Parliament v. Supremacy of the Constitution' and held that- "The Parliament too is a creature of the Constitution and has only such powers as may be conferred upon it by the said Instrument." [[21]]
After discussing the impact of Kesavananda Case in our neighbouring countries Bangladesh and Pakistan, let us see how it has impacted the Caribbean nation – Belize. In Barry M. Bowen v. Attorney General of Belize [[22]], Belize Court relied upon Kesavananda Case and IR Coelho Case[[23]] to adopt the Basic Structure Doctrine. In this case, an amendment was challenged, by which the Government sought to take complete control over the petroleum minerals in the country. [[24]] However, the land owners who were being deprived of their interest, were granted no right to claim compensation. [24] The said amendment was held to be unconstitutional on the ground of violation of Basic Structure. In the words of A.O. Conteh, CJ.:
"In my view, the basic structure doctrine is at bottom the affirmation of the supremacy of the Constitution in the context of fundamental rights." [[25]]
The Kesavananda Case grasped the attention of African Continent as well. In 2004, unsuccessful attempt was made to replace the Kenya's Constitution of 1963. The constitutional review process which was going on without a referendum or a constituent assembly was challenged in Njoya v. Attorney General [[26]], placing reliance on Kesavananda Case. Such a review process was alleged to be denial of their constituent power and hence unconstitutional. Ringera, J. upon a thorough perusal accepted the Kesavananda verdict and held that power of Parliament was limited only to 'alterations' of the existing Constitution [[27]], since power to make a new Constitution (the constituent power) belongs to the people of Kenya as a whole. [[28]] He further observed:
"I completely concur with the dicta in the Kessevananda (sic) case that Parliament has no power and cannot in the guise or garb of amendment either change the basic features of the Constitution or abrogate and enact a new Constitution. In my humble view, a contrary interpretation would lead to a farcical and absurd spectacle." [[29]]
In 2010, Kenya' s people gave themselves a new Constitution, wherein attempt was made to reform existing constitutional institutions. In line with this reformatory approach, a vetting process was introduced for existing judicial officers. Further an ouster clause was added in the Constitution to oust the judicial review of the said process. This ouster clause was challenged before the High Court of Kenya in Law Society of Kenya v. The Centre for Human Rights and Democracy [[30]]. While interpreting the ouster clause, the Kenya High Court also discussed the approach adopted in Kesavananda Case. It held that in situations of strong and compelling circumstances, the ouster clause may be usurped. Jurisdiction of the High Court cannot be completely ousted since decision of the vetting board has an effect on fundamental rights of the sitting judicial officers.
The Basic Structure Doctrine laid down in Kesavananda Case also found acceptance in the East African Country- Uganda. A Constitutional amendment was made removing the age limit for position of the President; this was challenged in Male H Marlize K. Kiwanuka and ors. v. the Attorney General [[31]]. By a majority of 4:3, said amendment was upheld holding that the age of the President is not a part of Basic Structure. It was observed that effect of the impugned amendment is to increase the spectrum of people's choice and hence constitutional. To arrive at this conclusion, the Court delved into existence of the Basic Structure Doctrine across different legal systems and it observed– "Basic Structure Doctrine is a Judge-made Indian Principle." In this case, Kesavananda Case was relied not only for 'Basic Structure', but also for 'importance of preamble in Constitution'.
The Kesavananda Case also casted its shadow on the African Island – Seychelles. In Popular Democratic Movement v. Electoral Commission[[32]], on the issue whether Preamble is a part of Constitution or not, the Courts of Appeal of Seychelles also could not resist itself from referring to Kesavananda.
The cross-pollination of constitutional ideas benefits all the courts globally. [[33]] It gives an exposure to new ways of thinking to the jurists and judges. They get an opportunity to learn from experiences of one another. In my opinion, Kesavananda Case is an apt example of this cross-pollination, spreading the ideas of 'importance of preamble in the Constitution', 'Basic Structure Doctrine', 'Supremacy of the Constitution', and 'Limited power of Parliament to amend the Constitution'. Professor Dietrich Conrad also appreciated the role of Indian Supreme Court in this context:
"…in this free trade of constitutional ideas, the Indian Supreme Court has come to play the role of an exporter. This holds true with respect to at least two major innovations introduced by the Court, public interest litigation and the basic structure doctrine." [[34]]
***
[1] (1973) 4 SCC 225.
[2] LEX/BDAD/0011/1989: 41 DLR (AD) (1989) 165.
[3] Ibid, para 470.
[4] Bangladesh Supreme Court has two divisions- Appellate Division and High Court Division.
[5] Ibid, para 244.
[6] Ibid, para 167.
[7] Ibid, para 291 pt. (4), (10) & (13).
[8] Ibid, para 296.
[9] Article 7 provides that any law inconsistent with the Constitution is void; besides, it declares that Constitution is the supreme law of the Republic.
[10] Ibid, para 220.
[11] Ibid, para 292 & 294.
[12] Ibid, para 377.
[13] Ibid, para 296.
[14] PLD 1963 SC 486.
[15] 2015 SCC Online Pak SC 2.
[16] Majid Rizvi, "South Asian Constitutional Convergence Revisited: Pakistan and the Basic Structure Doctrine" available at: http://www.iconnectblog.com/2015/09/south-asian-constitutional-convergence-revisited-pakistan-and-the-basic-structure-doctrine/#_ftn8 (visited on April 25, 2020).
[17] 2015 SCC Online Pak SC 2. Opinion authored by J. Sh. Azmat Saeed (Plurality Opinion-8 Judges), para 25.
[18] Ibid, para 54.
[19] Ibid, Para 61.
[20] Ibid, Para 67.
[21] Ibid, Para 63.
[23] AIR 2007 SC 861.
[24] Derek O'Brien, "The Basic Structure Doctrine and the Courts of the Commonwealth Caribbean" UK Constitutional Law Blog (28th May 2013) available at: http://ukconstitutionallaw.org (Visited on April 26, 2020).
[25] BZ 2009 SC 2, Para 119.
[26] [2004] LLR 4788 (HCK).
[27] Ibid, pg. 27.
[28] Ibid, pg. 27.
[29] Ibid, pg. 25.
[30] 2013 SCC Online Ken 1120
[31] Constitutional Appeal No. 02 of 2018, [2019] UGSC 6.
[32] (2011) SLR 385: 2011 SCC Online SCCA 10.
[33] Ann-Marie Slaughter; "A Global Community of Courts" 44 Harvard International Law Journal 191 (2003), available at: https://www.jura.uni-hamburg.de/media/ueber-die-fakultaet/personen/albers-marion/seoul-national-university/course-outline/slaughter-2003-a-global-community-of-courts.pdf (accessed on : April 27, 2020).
[34] "Basic Structure Doctrine in other Legal Systems", Available at: https://shodhganga.inflibnet.ac.in/bitstream/10603/229373/8/08_chapter%205.pdf (accessed on April 26, 2020).