Infrequent Use of Basic Structure Doctrine By The Courts Makes Fears Of Its Critics Misplaced

First, he said that ‘the basic’ of any ‘basic structure’ has to be the supremacy of mandate of people. He inferred from this understanding that the primacy and sovereignty of Parliament and legislature is inviolable. There can no quarrel with this inference, as he did not refer to the 1973 Supreme Court’s judgment in Kesavananda Bharati case at this stage.

Even if we assume that he clearly implied it here, it does not, on the face of it, conflict with the republican and democratic form of government, and supremacy of the Constitution - which were identified as features of the basic structure by the then Chief Justice of India, S.M.Sikri, who was one of the seven majority Judges who articulated the basic structure doctrine in the Kesavananda Bharati case. Nor did Dhankhar contend that his idea contradicts the basic features as identified by the Supreme Court in 1973 and subsequently.

The point to be noted here is that the 1973 judgment in Kesavananda Bharati is not exhaustive of all the features of the basic structure doctrine. It was only illustrative. Even judicial independence was not identified as a basic feature in 1973, but it was elevated by subsequent benches of the Supreme Court as part of the basic structure. Therefore, nothing prevents Dhankhar to suggest a new feature as part of the basic structure, as long as it remains to be tested in a court of law.

In fact, in his very subsequent sentence in the speech, Dhankhar mentions that all constitutional institutions - the Judiciary, the Executive and the legislature are required to confine to their respective domains and conform to the highest standard of propriety and decorum. What he hinted at was the doctrine of separation of powers between the legislature, the executive and the judiciary, which again finds a prominent mention by Chief Justice Sikri as one of the six features of basic structure in the Kesavananda Bharati judgment.

Dhankhar referred to the basic structure doctrine third time, when he referred to the fact that the Supreme Court evolved for the first time the right of the courts to strike down constitutional amendments that violated the ‘Basic Structure’, or as he put it, ‘the fundamental architecture of the Constitution’, in its the 1973 Kesavananda Bharati case.

The fourth reference to the doctrine was when he suggested that the highest court delivered significant rulings on matters that it held pivotal to this “Basic Structure” and in the process “parliamentary sovereignty was compromised”. As Dhankhar did not go into the details of his assertion, one can only examine the previous cases of constitutional amendments being struck down on the ground of violation of basic structure, and whether at all parliamentary sovereignty was compromised irreversibly in those instances.

Dhankhar’s last reference in his address to the basic structure was when he mentioned that the highest court of the land in a 4-1 majority verdict, held both the 99th Constitution Amendment Act, 2014 and the National Judicial Appointments Commission (NJAC) Act, 2014, unconstitutional on the premise of being in violation of the basic structure. This is partly incorrect insofar as only one of the five Judges on the Constitution bench (Justice J.S.Khehar) in the NJAC case held that the NJAC Act was unconstitutional on the ground of violation of the basic structure.

While the majority, in the NJAC judgment, held that the 99th Constitution Amendment Act was unconstitutional on the ground of violation of basic structure, two of them (Justice Madan B Lokur and Justice Adarsh Kumar Goel) clearly held, in their concurring judgments, that NJAC Act was unconstitutional because of other reasons, as the basic structure doctrine could not be applied to test the validity of ordinary laws.

Notwithstanding the factual error in Dhankhar’s address, between 1973 and 2015, the Supreme Court used the ground of violation of basic structure doctrine, to strike down constitutional amendments only in six cases. They are:

1. Kesavanand Bharati v State of Kerala (1973). In this case, the Supreme Court declared a sub-clause inserted in Article 31-C by the 25th Amendment Act, 1971 as unconstitutional. This clause conferred immunity on laws pursuant to Directive Principles from being held void on ground of inconsistency with Articles 14, 19 and 31. Later, the 44th Amendment Act deleted Article 31 (compulsory acquisition of property) from the scope of Article 31-C, apart from Article 31 itself. Clearly, Parliament’s subsequent Amendment shows it concurred with the Supreme Court’s striking down of the clause inserted by 25th Amendment Act. Dhankhar is not likely to use his opposition to basic structure doctrine to defend one of the aberrations of the Indira Gandhi regime.

2.Indira Gandhi v Raj Narain (1975): The Supreme Court struck down Clause 4 of the 39th Amendment Act, 1975 which inserted Articles 71(2) and 329A. These Articles provided that disputes regarding the election of four high constitutional functionaries, namely, the president, vice-president, the prime minister and speaker of the Lok Sabha should be adjudicated by whatever authority and procedure as provided by law, and that any court order, made before its commencement, declaring such an election to be void, should be deemed null and void. Later, the 44th Amendment Act restored the original form of Article 71 and deleted Article 329A.

Clearly, Dhankhar is unlikely to say Parliament’s sovereignty suffered because of this ruling of the Supreme Court invoking the basic structure doctrine. After all, the Narendra Modi Government has been critical of the excesses of the Emergency regime, and defensive of the role of the judiciary in correcting some of them.

3. Minerva Mills v Union of India (1980): In this case, the Supreme Court struck down Section 55 of the 42nd Amendment Act, 1976 which added clauses (4) and (5) to Article 368. Clause 4 provided that no amendment of the Constitution shall be called in question in any court on any ground. Clause 5 provided 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. In the same case, the Supreme Court also declared amendments in Article 31C - introduced by Section 4 of the 42nd Amendment Act - unconstitutional, as they sought to give primacy to directive principles over fundamental rights. Clearly, Dhankhar cannot be expected to defend the Emergency regime and its abuse of the Constitution by criticising this judgment.

4. Samba Murthy v State of Andhra Pradesh (1986): In this case, the 32nd Amendment Act, 1973 had inserted Article 371D of the Constitution, which excluded the high courts’ power of judicial review. The Supreme Court struck down clause (5) of Article 371D along with the proviso, as void. This proviso conferred power on the state government to modify or annul the final order of the administrative tribunal.

Clearly, Dhankhar cannot be expected to defend an aberration of the Rajiv Gandhi Government in 1986, which came under scrutiny before the Supreme Court for violating the basic structure doctrine.

5. Kihoto Hollohan v Zachillhu (1992). In this case, the Supreme Court struck down Paragraph 7 of the 10th Schedule to the Constitution, inserted by the 52nd Amendment Act, 1985, to disqualify elected members of Parliament and state assemblies on the ground of defection, as unconstitutional. Paragraph 7 had barred the jurisdiction of courts from considering the validity of the Speaker’s decisions with regard to disqualification. As this decision of the Court enabled many challenges before the Judiciary by those so disqualified cutting across party lines, Dhankhar cannot be expected to oppose this ruling of the Supreme Court now.

6. Chandra Kumar v Union of India (1997): Again, the validity of a provision of 42nd Amendment Act, 1976 - passed during the Emergency - was in issue. Section 46 of the Act had inserted Articles 323A and 323B dealing with administrative tribunals and tribunals for other matters respectively. The Supreme Court declared Clause 2(d) of Article 323A and Clause 3(d) of Article 323B as unconstitutional as they excluded judicial review by the high courts. Dhankhar is well aware that the present ruling dispensation at the Centre draws inspiration from the opposition to the Emergency regime and its perceived excesses - both legislative and Executive - and their subsequent reform through Parliament and judiciary. It is, therefore, inexplicable why Dhankhar had to express his disappointment with the history of the use of basic structure doctrine by the judiciary.

In two of the recent cases decided by the Supreme Court, petitioners had challenged the validity of the Constitutional Amendment/Act on the ground of violation of basic structure. In Dr.Jaishri Laxmanrao Patil v The Chief Minister (Maratha reservation case), the Supreme Court held that the 102nd Amendment Act, 2018 does not violate any basic feature of the Constitution.

In Janhit Abhiyan v Union of India, the Supreme Court held that reservation structured singularly on economic criteria does not cause any damage to the basic structure of the Constitution, and therefore, 103rd Amendment cannot be said to breach the basic structure of the Constitution by permitting the State to make special provisions, including reservation, based on economic criteria. The amendment, the bench held, does not breach the basic structure of the Constitution by permitting the State to make special provision in relation to admission to private unaided institutions, or in excluding the SEBCs/OBCs/SCs/STs from the scope of EWS reservation.

In several PILs pending before the Supreme Court, petitioners have indeed raised contentions alleging violation of basic structure doctrine. Among them are those challenging the validity of Citizenship Amendment Act (CAA), revocation of special status of Jammu and Kashmir, Electoral Bonds scheme, Nikah-Halala and other personal laws, Transgender Persons (Protection of Rights) Act, 2019 etc.

It is, however, anybody’s guess in how many of them the Court will accept their contentions, going by the Court’s history with regard to invoking the doctrine of basic structure to invalidate Constitutional amendments, only if the Constitutional edifice itself is in danger of being damaged. It is because the Supreme Court has not yet invalidated a constitutional amendment on the ground of violation of basic features, other than judicial independence. It may be a case of institutional self-dealing where the court is using the basic structure doctrine to protect and advance its own interests vis-a-vis those of the Executive and the Judiciary.

Therefore, the Supreme Court’s last invoking of the basic structure doctrine to invalidate a Constitutional amendment in NJAC case in 2015, need not make the Parliament and the Executive paranoid so as to give credence to the apprehension that the judiciary may find it easier to use the doctrine in every adversarial judgment against the Government.