The Basic Structure Doctrine: An Inventive Saviour Of Democracy

History And Evolution Of The Basic Structure Doctrine

The origins of the doctrine date back to Professor Dietrich Conrad's lecture, who formerly was the head of the Law Department, in the South Asia Institute of the University of Heidelberg, in Germany.^[2] The said doctrine is said to be his brainchild, whose "Implied Limitation" concept, India adopted as the "Basic Structure Doctrine". The misuse of the Constitution governing Germany, namely the Weimer Constitution, from the year 1919 to 1949, had an impact on Conrad.^[3] He developed the "Implied Limitation" concept based on his experience in Germany during this time. The Weimer Constitution permitted the legislatures to have amendment in any part of the constitution if two-third of the members of the parliament voted for it.^[4] Hitler used this law to overhaul the whole constitution and arbitrarily deprive people of their rights. In 1965, Prof. Conrad gave a lecture at the Banaras Hindu University, where he gave the "Implied Limitation" theory.^[5] According to this theory, an amending body cannot alter the very structure supporting its constitutional authority, no matter how much power it has.^[6] Because of the implied limitations on an amending body, some areas in the constitution are beyond their reach. Conrad believed that allowing sweeping changes in the constitution may destroy India's ethos and change it into a dictatorship. He pointed out at the need for every constitution to have implied limitations. The M. Nagraj case acknowledged the German connection of the doctrine.

Initially, a question arose as to whether Art.368 of the constitution can be used to amend the fundamental rights before the Apex Court. In the Shankari Prasad case, the issue before the court was regarding the validity of the Constitution (1st Amendment) Act of 1951 that inserted Art. 31A and Art. 31B.^[8] The validity of the amendment got challenged based on the argument that it takes away the rights guaranteed under Part III of the constitution, which fell under the prohibitions of the Art. 13(2) and is void.^[9] The court rejected the argument by holding that Art.368 provides the power of amending the constitution, including fundamental rights, and the term "Law" under Art, 13(2) covers only the ordinary laws made through the exercise of the legislative power and not the constitutional amendment made through the constituent power.^[10] Thus, a constitutional amendment taking away or abridging the fundamental rights will be valid.

Then, the court, in the Sajjan Singh case, was dealing with the question of whether the 17th Constitutional Amendment Act of 1964 that amended the Art. 31A and placed 44 statues under the Ninth Schedule was valid or not.^[11] The court held that it is correct to say that Art.13(2) includes any law in general, which if literally, interpreted may encompass the laws made through the exercise of constituent power of the parliament, but in light of the conferment of an unqualified, unambiguous and specific power to amend the Indian Constitution on the parliament, it would not be reasonable to say that the term "law" under Art.13(2) includes constitutional amendment acts passed under Art.368.^[12] Also, if the constitutional drafters intended that any amendment of a provision concerning fundamental rights would be subject to the Art.13(2), the same would have made a provision for it.^[13] Further, it is unlikely that they would have intended to exclude the fundamental rights altogether from the power of amendment of the parliament while conferring the same on them.^[14] While inserting Art.368, they would not have intended that the term "law" under Art.13(2) will include laws concerning the amendment of the constitution as a result of which the fundamental rights cannot be taken away or abridged.^[15]

However, the Golaknath Case prospectively overruled both the above cases to hold that that the parliament has no power of amending Part III to abridge or take away the fundamental rights.^[16] In this case, Mr. Nambiar brought the "Implied Limitations" doctrine, but the court did not accept the same. Nambiar owed his Implied Limitations doctrine argument to Prof. Conrad. The court held that the parliament's power to amend comes from Arts. 245, 246, and 248 when read with Entry 97 of the List I of the Indian constitution.^[17] Art.368 merely provides the procedure for amendment, which is also a legislative process.^[18] They said that the word "Law" under Art.13(2) includes an amendment, and if the same contravenes the fundamental rights, then it may become void.^[19] They said that the fundamental rights are beyond the parliament's reach. Also, the word "Law" includes constitutional as well as statutory law, and an amendment contravening Art.13(2) will become void.^[20] Lastly, they did not accept the contention that the amending power of the parliament was a sovereign power and was supreme to the legislative power and that it didn't allow implied limitations and that an amendment made by exercising such power involves political questions and is outside the scope of judicial review.^[21] The court, in the case, though not accepted the implied limitation theory, the majority felt that the doctrine had a substantial force and was to be looked at later when the parliament attempts to destroy the constitutional structure provided under a provision other than Part III.^[22] Nani Palkhivala took up this argument later in the case of Keshvananda Bharati, where the same became the "Basic Structure doctrine". After the Golaknath case, many saw the judgment as an attempt by the Apex Court to establish the judiciary's supremacy. In 1967, there was an introduction of a bill by a private member in the Lok Sabha to assert parliament supremacy. After this, there were elections, where Congress won. Then, they passed the twenty-fourth and twenty-fifth amendment bills to remove the difficulties created by the Golaknath case.

Legitimisation Of The Doctrine

The twenty-fourth, twenty-fifth, and twenty-ninth amendments had the effect of altering relations between the judiciary and the parliament. In the Keshvananda Bharati case, the petitioner challenged the validity of the aforesaid amendments.^[23] The courts also dealt with the question concerning the scope of the amending power provided under Art.368. The respondents contended that the power of amending was unlimited and permitted any change short of complete abrogation or repeal of the constitution.^[24] On the contrary, the petitioner contended that the power of amending the constitution was broad but not unlimited.^[25] The petitioner supported the theory of implied limitation, and the respondent opposed it. The special bench of thirteen judges by majority of 7:6 held that the amending powers of the parliament are broad and extends to cover all the articles, but it is not unlimited and does not cover the power to abrogate or destroy the basic framework or feature of the constitution.^[26] Concerning the extent of the amending powers under Art.368, seven judges, including Grover, Shelat, Hedge, Khanna, Mukherjee, and Reddy, JJ., and Sikri, C.J., held that there exists implied or inherent limitations on the amending powers of the parliament and Art.368 does empower them to destroy or damage the basic features of the constitution.^[27] Six judges, including A.N. Ray, Palekar, Beg, Mathew, Chandrachud, Dwivedi, JJ., held that the amending power of the parliament contained in Art.368 is unlimited and can be used, for amending basic features, like fundamental rights.^[28] Then, Justice Khanna, in this case, said that the parliament should not use their amending powers to change the basic features of the constitution.^[29] However, he also said that the fundamental rights were not a part of the basic features, and therefore, can be amended.^[30] Justice Khanna's decision was decisive in the end.

After two years of the Keshvananda Bharati case, Justice Khanna was again responsible for another significant dimension concerning the basic structure. In  Keshvananda Bharati judgement, he said that the fundamental rights were not a part of the basic features. However, in the Indira Gandhi case, also known as the election case, Justice Khanna clarified his decision in the Keshvananda Bharati case by holding that the fundamental rights form a part of the basic features of the constitution.^[31]

This clarification is a significant element of "Basic Structure Doctrine" now. E.g., In the I.R. Coelho case, a nine-judge bench of the Apex Court looked at the extent of judicial review concerning the insertion of laws in the Ninth Schedule through an amendment, thereby providing immunity from a challenge, in light of Art.31B of the Indian Constitution.^[32] The court held that there are some fundamental rights have themselves attained the status of the basic structure.^[33] Every such amendment needs scrutiny based on the basic features of the constitution, including those provided under Art. 14, 19, and 21 and the principle underlying them.^[34] Also, the National Legal Services Authority case, while dealing with the third gender rights, held that Art.14 form a part of the basic structure.^[35]

The doctrine got upheld in the Indira Gandhi case^[36] and the Minerva Mills case^[37]. Through this doctrine, the amended provision of the Art.368, added by the forty-second amendment, was struck down by the Apex Court on the ground that it violates the basic structure doctrine as it deprives the Apex Court of its power of judicial review.

Attempt Made To Reverse The Doctrine

There was an attempt to overrule the judgment of the Keshvananda Bharati case by a review bench consisting of thirteen judges on 10th and 11th November of 1975.^[38] However, the review was inexplicably and suddenly abandoned on the third day, and the bench got dissolved. There's no official report or record concerning the said review. Such an attempt occurred during an emergency when there were restrictions regarding the reporting of court decisions by the press. A.N Ray became the Chief Justice of India by superseding the seniority of Grover, Shelat, and Hegde, JJ. because they subscribed to views in favour of the implied limitations on the amending powers.^[39] As a result, the three judges resigned, thereby making the Keshvananda Bharati case very controversial. On 12^th June 1975, Indira Gandhi was held guilty for corrupt electoral practices under the Representation of People Act of 1951 and was disqualified for six years by the Allahabad HC.^[40] The judgment was, however, stayed for fifteen days to allow her to appeal to the Apex Court. The decision took place during the Supreme court's vacation when Justice Krishna Iyer was the vacation judge. On the 23rd of June 1975, Palkhivala made a plea for an unconditional and immediate stay on the disqualification of Indira Gandhi in the national interest, while Mr. Shanti Bhushan opposed the same.^[41] Justice Iyer rejected the plea of total stay but gave a conditional order, which allowed her to visit the parliament as the Prime Minister [PM] and a member to participate in the proceedings without any voting power, during the pendency of the final judgment in the appeal of the election case.^[42] Mr. Seervai describes this as the 'finest hour' of the Apex Court.

While the appeal was pending, the parliament enacted the Thirty-Ninth Amendment Act, which inserted Art.329A, thereby taking away a court's jurisdiction in disputes concerning election of the PM.^[43] The parliament also enacted the Election Laws (Amendment) Act of 1975, which retrospectively nullified the electoral offenses because of which Indira Gandhi got disqualified.^[44] The amendments got challenged as being violative of "Basic Structure Doctrine", and the five-judge bench, in this case, relied on the thirteen-judge bench in the Keshvananda Bharati case and was bound by the same.

On 1st September 1975, Niren De, along with Tamil Nadu's Advocate-General, made an application to Ray CJ concerning an early hearing of some petitions regarding the land ceiling cases involving the doctrine of basic structure. Before the judgment got delivered in the Indira Gandhi case, Ray CJ. by a written order provided that the Apex Court would hear the arguments concerning questions such as whether the Bank Nationalisation case was correctly decided, or not, and whether the doctrine of basic structure limited the amending powers of the parliament.^[45] There was going to be a constitution of a thirteen-judge bench for this purpose. On 7th November 1975, the appeal of Indira Gandhi was allowed, and the decision of the Allahabad High Courts got set aside, but the Thirty-Ninth Amendment was declared unconstitutional.^[46]

Palkhivala was against such review, and on 9th November 1975, he wrote a letter to Indira Gandhi appealing her in the national interest to stop the court from reviewing the said doctrine and saying that if the amending power is unlimited, then the unity, democracy, and integrity of our country would vanish. On the next day, he made objections concerning the review and consequences of the unlimited amending power. On 11th November 1975, the Attorney-General countered Palkhivala by arguing that the doctrine has created chaos in the constitutional situation in India. Every amendment was being subject to challenge in courts, and that there was a problem concerning the application of the doctrine, for which he was not able to provide instances proving the same. On 12^th November 1975, the Chief Justice held that the bench is dissolved as for two days the arguments were "going on in the air".^[47] Later, in 2005, Justice Iyer said that he expressed his appreciation for the arguments of Palkhivala to Justice Mathew, which he misconstrued and told Ray CJ. that Iyer J. had ganged up several judges to promote his pro-Palkhivala view.^[48] Thus, the doctrine survived a possible reversal through the review.

The "Basic Structure doctrine" today has become global and followed in several countries like Germany.^[49] Portugal and Greece's constitution has listed out all their unamendable provisions.^[50] But several nations like Italy and France have only attempted to protect one or two central principles like the Republican form of Government.^[51] Even the courts in Pakistan, in 2015, have recognized the implied limitations on parliament's amending powers and declared Judiciary, Democracy, and Parliamentary form of Government as the basic structure.^[52] In Thailand, there's no specific mention of the doctrine, but they have also listed their unamendable provisions.^[53] Further, the Australian courts have also recognized the limitations on the law-making powers of the parliament, emanating from their constitution.^[54] The same is visible in Britain, where the courts have realized the need to consider the question of whether there is any constitutional fundamental which cannot be abolished even by a sovereign parliament.

For many years now, the Apex Court has applied the basic structure doctrine either directly or tangentially, to invalidate ordinary legislations. It is a well-established rule that there are two grounds based on which ordinary legislation gets tested, namely, whether it attracts Art.13(1) and (2) bar of the constitution or not and legislative competence. But in addition to the above grounds, can it be invalidated based on the fact that it violates the said doctrine? The State of Karnataka case held that only a constitutional amendment and not ordinary legislation can be challenged on the ground that it violates the said doctrine.^[56] Then, the majority in the Election case stated that ordinary legislation doesn't attract the test of the doctrine.^[57] Then the Kuldip Nayar case held that the basic structure of the constitution does not apply to ordinary legislation.^[58] But in the NJAC case, the court held that it is possible to challenge ordinary legislation on the ground that it violates the said doctrine.^[59] One can say that the non-application of the doctrine to ordinary legislation due to the difference in legislative and constituent power would make sense if two separate bodies are holding these powers, but it is not the case with India. Thus, there exists a question as to why the legislatures in India shouldn't be subject to the doctrine and made compliance with the intrinsic values of the constitution. It sounds absurd that the legislatures are allowed while drafting and implementing ordinary laws to ignore the ideals of this doctrine but cannot do the same when bringing a constitutional amendment. Lastly, there are both arguments for and against this doctrine and even a third school of thought which even denies its very existence. But it doesn't matter where one has their allegiance as it is undeniable that this doctrine is essential to maintain constitutionalism in our country. It seems to be the only thing standing between the people and a powerful parliament in cases of legislative excesses due to reckless usage of the Art.368.

Views are personal.