Can Ordinary Legislation Be Struck Down For Violating 'Basic Structure' Of Constitution? Canada Supreme Court Judgment Revives The Debate

Recently, the Supreme Court of Canada (by majority 5:4) held that 'unwritten constitutional principles' like democracy, though are part of Constitution, cannot be used as bases for invalidating legislation. The dissent, referring also to Indian judgment in Kesavananda Bharati case, noted that many Parliamentary system have recognized that unwritten constitutional principles have full legal force. This judgment, in my view, is the Canadian counter part of Indian Supreme Court judgment in Indira Nehru Gandhi vs Raj Narain.

Indian Supreme Court 'Conflicting' Views

The landmark judgment in Kesavananda Bharathi propounded the theory of basic structure. The majority (7:6) held that the Parliament while amending Constitution cannot alter the basic structure of the Constitution. However, the judgment did not list the basic features as such, though two judges in the bench made such an attempt.

In Indira Gandhi vs. Raj Narain AIR 1975 SC 2299, the constitutional validity of  the Constitution (Thirty Ninth Amendment) Act of 1975, the Representation of People (Amendment) Act, 1974 and the Election Laws (Amendment) Act, 1975 was under challenge. One of the contentions raised was that the ordinary legislative measures are subject like Constitution Amendments to the restrictions of not damaging or destroying basic structure, or basic features.

Justice AN Ray, in his judgment, termed this contention as 'utterly unsound'. According to him, the contention that legislative measures are subject to restrictions of the theory of basic structures or basic features is to equate legislative measures with Constitution Amendment. The judge observed thus: " To accept the basic features or basic structures theory with regard to ordinary legislation would mean that there would be two kinds of limitations for legislative measures. One will pertain to legislative power under Article 245 and 246 and the legislative entries and the provision in Article 13. The other would be that no legislation can be made as to damage or destroy basic features or basic structures. This will mean rewriting the Constitution and robbing the Legislature of acting within the framework of the Constitution. No legislation can be free from challenge on this ground even though the legislative measure is within the plenary powers of the Legislature." (Para 134)

According to the judge, the theory of basic structures or basic features is an exercise in imponderables. "Basic structures or basic features are indefinable. The legislative entries are the fields of legislation. The pith and substance doctrine has been applied in order to find out legislative competency, and eliminate encroachment on legislative entries. If the theory of basic structures or basic features will be applied to legislative measures it will denude Parliament and State Legislature of the power of legislation and deprive them of laying down legislative policies. This will be encroachment on the separation of powers. (Para 136).", the judge said. Justice Ray concluded that the constitutional validity of a statue depends entirely on the existence of the legislative power and the express provision in Article 13, and is not subject to any other prohibition. 

Justice YV Chandrachud also concurred with this view. He observed that, the constitutional amendments may, on the ratio of the Fundamental Rights case, be tested on the anvil of basic structure, but not ordinary legislations. Referring to Kesavananda Bharati case, he observed: " But apart from the principle that a case is only an authority for what it decides, it does not logically follow from the majority judgment in the Fundamental Rights case that ordinary legislation must also answer the same test as a constitutional amendment. Ordinary laws have to answer two tests for their validity : (1) The law must be within the legislative competence of the Legislature as defined and specified in Chapter I, Part XI of the Constitution, and (2) it must not offend against the provisions of Article 13(1) and (2) of the constitution.'Basic structure', by the majority judgment, is not a part of the fundamental rights nor indeed a provision of the Constitution. "(Para 691)

Senior Advocate Shanti Bhushan contended that it would be paradoxical that the higher power should be subject to a limitation which will not operate upon a lower power. "There is no paradox, because certain limitations operate upon higher power for the reason that it is higher power. A constitutional amendment has to be passed by a special majority and certain such amendments have to be ratified by the Legislatures of not less than one-half of the States as provided by Article 368(2). An ordinary legislation can be passed by a simple majority. The two powers, though species of the same genus, operate in different fields and are therefore subject to different limitations. (Para 692)", Justice Chandrachud observed.

In this regard, Justice KK Mathew observed that there is no support from the majority view in Keshavananda Bharati's for the proposition that an ordinary law, if it damages or destroys basic structure should be held bad for the reason that they damage or destroy a basic structure constituted not by the fundamental rights taken away or abridged but some other basic structure. The Judge observed thus: "I think the inhibition to destroy or damage the basic structure by an amendment of the Constitution flows from the limitation on the power of amendment under Article 368 read into it by the majority in Bharati's case (supra) because of their assumption that there are certain fundamental features in the Constitution which its makers intended to remain there in perpetuity. But I do not find any such inhibition so far as the power of Parliament or State Legislatures to pass laws is concerned. Article 245 and 246 give the power and also provide the limitation upon the power of these organs to pass laws. It is only the specific provisions enacted in the Constitution which could operate as limitation upon that power. The preamble, though a part of the Constitution, is neither a source of power nor a limitation upon that power. The preamble sets out the ideological aspirations of the people. The essential features of the great concepts set out in the preamble are delineated in the various provisions of the Con 346. I do not think that an ordinary law can be declared invalid for the reason that it goes against the vague concepts of democracy; justice, political, economic an social; liberty of thought, belief and expression; or equality of status and opportunity, or some invisible radiation from them. (Para 346)"

Another Constitution Bench of the Supreme Court, four decades later, reiterated the same view. In Kuldip Nayar vs Union Of India 2006(7) SCC 1, it was observed thus: The basic structure theory imposes limitation on the power of the Parliament to amend the Constitution. An amendment to the Constitution under Article 368 could be challenged on the ground of violation of the basic structure of the Constitution. An ordinary legislation cannot be so challenged. The challenge to a law made, within its legislative competence, by Parliament on the ground of violation of the basic structure of the Constitution is thus not available to the petitioners.

In Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 1, the five judges Constitution Bench observed thus: "For determining whether a particular feature of the Constitution is part of the basic structure or not, it has to be examined in each individual case keeping in mind the scheme of the Constitution, its objects and purpose and the integrity of the Constitution as a fundamental instrument for the country's governance. It may be noticed that it is not open to challenge the ordinary legislations on the basis of the basic structure principle. State legislation can be challenged on the question whether it is violative of the provisions of the Constitution. But as regards constitutional amendments, if any challenge is made on the basis of basic structure, it has to be examined based on the basic features of the Constitution."

In Madras Bar Association vs. Union of India, Justice JS Khehar, who authored the lead judgment (signed by three other judges) took a contrary view. The judge observed: This Court has repeatedly held, that an amendment to the provisions of the Constitution, would not be sustainable if it violated the "basic structure" of the Constitution, even though the amendment had been carried out, by following the procedure contemplated under "Part XI" of the Constitution. This leads to the determination, that the "basic structure" is inviolable. In our view, the same would apply to all other legislations (other than amendments to the Constitution) as well, even though the legislation had been enacted by following the prescribed procedure, and was within the domain of the enacting legislature, any infringement to the "basic structure" would be unacceptable. (Para 65)"

Justice JS Khehar reiterated this view in his judgment in NJAC judgment. All the above judgments were cited before the Court to contend that ordinary legislation cannot be tested on the ground of violation of basic structure. The judge said: "So far as the issue of examining the constitutional validity of an ordinary legislative enactment is concerned, all the constitutional provisions, on the basis whereof the concerned "basic feature" arises, are available. Breach of a single provision of the Constitution, would be sufficient to render the legislation, ultra vires the Constitution. In such view of the matter, it would be proper to accept a challenge based on constitutional validity, to refer to the particular Article(s), singularly or collectively, which the legislative enactment violates. And in cases where Page 1 414 the cumulative effect of a number of Articles of the Constitution is stated to have been violated, reference should be made to all the concerned Articles, including the preamble, if necessary. The issue is purely technical. Yet, if a challenge is raised to an ordinary legislative enactment based on the doctrine of "basic structure", the same cannot be treated to suffer from a legal infirmity. That would only be a technical flaw. That is how, it will be possible to explain the observations made by this Court, in the judgments relied upon by the learned counsel for the petitioners. Therefore, when a challenge is raised to a legislative enactment based on the cumulative effect of a number of Articles of the Constitution, it is not always necessary to refer to each of the concerned Articles, when a cumulative effect of the said Articles has already been determined, as constituting one of the "basic features" of the Constitution. Reference to the "basic structure", while dealing with an ordinary legislation, would obviate the necessity of recording the same conclusion, which has already been scripted while interpreting the Article(s) under reference, harmoniously. We would therefore reiterate, that the "basic structure" of the Constitution is inviolable, and as such, the Constitution cannot be amended so as to negate any "basic features" thereof, and so also, if a challenge is raised to an ordinary legislation based on one of the "basic features" of the Constitution, it would be valid to do so. If such a challenge is accepted, on the ground of violation of the "basic structure", it would mean that the bunch of Articles of the Constitution (including the preamble thereof, wherever relevant), which constitute the particular "basic feature", had been violated. We must however credit the contention of the learned Attorney General by accepting, that it would be technically sound to refer to the Articles which are violated, when an ordinary legislation is sought to be struck down, as being ultra vires the provisions of the Constitution. But that would not lead to the inference, that to strike down an ordinary legislative enactment, as being violative of the "basic structure", would be wrong. We therefore find no merit in the contention advanced by the learned Attorney General, but for the technical aspect referred to hereinabove. (Para 221)"

Justice Madan B. Lokur, disagreed with this view and referred to concurring opinion given by Justice Untwalia in State of Karnataka v. Union of India AIR 1978 SC 68 and observed: It is only an amendment of the Constitution that can be challenged on the ground that it violates the basic structure of the Constitution – a statute cannot be challenged on the ground that it violates the basic structure of the Constitution. [The only exception to this perhaps could be a statute placed in the Ninth Schedule of the Constitution]. The principles for challenging the constitutionality of a statute are quite different.(Para 390).

The other judges (Justices J. Chelameswar, Kurian Joseph and AK Goel) did not express their view on this issue.

Canada SC Views

In the Reference re Secession of Quebec, [1998] 2 S.C.R. 217 ("Secession Reference"), the Supreme Court of Canada identified the unwritten constitutional principles of democracy, judicial independence, federalism, constitutionalism and the rule of law, and the protection of minorities. It was held thus: Underlying constitutional principles may in certain circumstances give rise to substantive legal obligations (have "full legal force", as we described it in [Reference re Resolution to Amend the Constitution], supra, at p. 845), which constitute substantive limitations upon government action. These principles may give rise to very abstract and general obligations, or they may be more specific and precise in nature. The principles are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and governments.

In this recent judgment, the Majority of the Court interpreted this to hold that this does not mean that legislations can be invalidated by invoking these unwritten Constitutional principles. "The democratic principle is relevant as a guide to the interpretation of the constitutional text. It supports an understanding of free expression as including political expression made in furtherance of a political campaign. But it cannot be used in a manner that goes beyond this interpretive role. In particular, it cannot be used as an independent basis to invalidate legislation", the majority observed. On the other hand, the dissent opined that the 'unwritten principles may be used to invalidate legislation if a case arises where legislation elides the reach of any express constitutional provision but is fundamentally at odds with our Constitution's "internal architecture" or "basic constitutional structure".'

Revives The Debate

This Judgment of Canada Supreme Court reminds us of the conflicting views expressed by the Supreme Court on this issue. There are at least three five judges bench judgments, which (by majority), held that an ordinary legislation cannot be challenged on the ground of violation of basic structure. Justice Khehar's judgment in Madras Bar Association, on behalf of himself and other three judges, held otherwise. It is desirable that, in an appropriate case, a larger bench is constituted to decide this issue either way. It must be explained why, if a Constitutional Amendment cannot violate the basic features of the Constitution, an ordinary legislation should escape the wrath of basic structure doctrine?