Basic Structure Doctrine Has Come To Stay Having Been Accepted By The Parliament Itself: Fali S Nariman

While delivering the inaugural address at the second Ashok Desai Memorial Lecture, renowned jurist and senior advocate Fali S Nariman (on December 12) spoke about the judicial interference vis-à-vis parliament's powers to amend the constitution. Talking about the basic structure doctrine, Nariman said, “Basic structure theory was the response of an anxious and activist Court to the experience of the working of India's constitution during our Nation's first 25 years.”

To begin with, Nariman spoke about the landmark Kesavananda Bharati judgment, which upheld the basic structure doctrine and placed limits on the power of the Parliament to amend the Constitution.

“In Kesavananda, 6 justices held that the power of amendment conferred by Article 368 of the Indian Constitution was wide and unfettered…including the chapter on fundamental right. 6 other judges held that the power of amendment was limited....It could therefore be said that the Court was evenly divided."

Elaborating, Nariman stated that the judgment that tilted this evenly divided view was of Justice Hans Raj Khanna. In his judgment, Justice Khanna had penned down:

“Although it is permissible under the power of amendment to effect changes, howsoever important, and to adapt the system to the requirements of changing conditions, it is not permissible to touch the foundation or to alter the basic institutional pattern.”

Taking his cue from these above observations, Nariman asserted:

“In Kesavananda, the SC had certainly made new law. The majority view in that case was criticized as an unwarranted assertion of naked political power in the guise of judicial interpretation. Frankly, it was. It upsets the balance of power under constitution….Constitutional adjudicators had assumed the role of constitutional governance. The criticism to some extent was valid.”

Thereafter, he moved on to share his insights on another landmark judgment of the State of Uttar Pradesh v. Raj Narain. In this case, Raj Narain filed an election petition before the Allahabad High Court, alleging misuse of public finances by a political party for Indira Gandhi's re-election as Prime Minister of India. Raj Narain had contested against Gandhi, and he had lost.

“The extraordinary had happened. A Prime Minister in office, who had a fantastic majoritarian parliament had been unseated. Whilst her appeal to the Supreme Court was pending, the internal emergency with ominous consequences was imposed on 25th June, 1975. In addition, the Constitution (Thirty-Ninth Amendment) bill was hastily drafted and even more hastily passed by the parliament.,” Nariman added.

Nariman specifically stressed on the Thirty-Ninth Amendment Act of 1975. The election of the Prime Minister, the President, the Vice President, and the Speaker of the Lok Sabha was no longer subject to judicial review by the Thirty-ninth Amendment to the Indian Constitution. He stated:

“The power to amend the constitution was invoked to strike out an item already listed for hearing before the Supreme Court, namely the election appeal of Gandhi. The 39th Amendment Act provided that notwithstanding any order of the Court, the election of the sitting Prime Minister could never and would never deemed to be invalid or void. The judgment of the Allahabad High Court holding Gandhi guilty of corrupt practices under election laws was attempted to be reversed by the constitutional amendment. Now, fortunately for the nation, the Court resisted this crude attempt relying on the first time after Kesavananda on the basic structure theory of the constitution (Indira Nehru Gandhi vs Shri Raj Narain's decision).”

Taking his cue from these observations, Nariman said that it was this decision and not the majority decision in Kesavananda Bharti alone that helped cement the basic structure theory and added constitutional validity.

Pertinently, in this decision, the Apex Court had notably held that free and fair elections were a fundamental part of the Constitution. Nariman described this decision as a “high water mark in the assertion of the Court's judicial power in the teeth of what was then a very determined majoritarian regime.”

Nariman highlighted that 50 years after the basic structure doctrine was first propounded, Parliament gave its implicit recognition in the Constitution (Forty-fourth Amendment) Act, 1978. Herein, it was specifically mentioned that Articles 20 and 21 of the Indian Constitution cannot be suspended even in case of an emergency.

Nariman concluded his address by saying:

“In nearly 50 years, apart from the decision in Indira Gandhi v. Raj Narain, the basic structure theory has so far been applied by the Supreme Court in only five other cases. So, you will see that the doctrine of basic structure has come to stay having been accepted by the Parliament itself.”