Basic Structure Doctrine Is Here To Stay, It Has Been Embraced By Other Countries Too : Senior Advocate Fali S Nariman

“Individual members of the public may from time to time get worried, as I sometimes am, with orders and decisions given by individual judges of the Supreme Court. But please never lose faith in the higher Judiciary as an institution, as one of the three constitutional organs of good governance.”

Nariman was delivering a keynote address at the 2023 Ram Jethmalani Memorial Lecture, in which he explored the significance of the basic structure doctrine within India’s constitutional framework. The event, organised by the Sunday Guardian Foundation, was presided over by Chief Justice of India DY Chandrachud. Law minister Arjun Ram Meghwal and Attorney-General for India R Venkataramani were the guests of honour. On the panel debating whether the basic structure doctrine has served the nation well were Nariman, former Chief Justice of India Dipak Misra, Thuglak editor S Gurumurthy, and senior Supreme Court lawyer Shyam Divan.

During his speech, Nariman highlighted how the basic structure doctrine, which placed restraints on Article 368 of the Constitution – the sole article dealing with substantive constitutional amendments – were intrinsically tied to an effort by courts worldwide to safeguard democratic institutions and ‘serve the nation well’. In this connection, he also outlined the doctrine’s evolution, starting from its inception in the landmark 13-judge-bench Kesavananda Bharti judgment of the apex court and tracing its development to the present day. He spoke about the two instances where an attempt was made by the Supreme Court to doubt this historic precedent. One of these attempts was in November 1975 when the-then chief justice AN Ray constituted another bench comprising 13 judges to reconsider the ruling’s correctness –

“In this bench of 13 judges, there were eight new judges, all appointed after Kesavananda, replacing those who had retired. And this new bench of 13 judges heard arguments for two days, but on the morning of the third day, when the court reassembled, Chief Justice Ray suddenly and peremptorily announced, “This bench stands dissolved.” All the judges rose and went back to their chambers. And this was only because Chief Justice Ray was satisfied that the doctrine of basic structure was not to be reconsidered by any of his 12 colleagues.”

In 2007, another attempt was made in IR Coelho to doubt the basic structure or essential features doctrine. A bench of nine justices, however, unanimously reaffirmed the doctrine. Consequently, it has now acquired a place of permanence in constitutional adjudication itself. He also pointed out that not only had it gained in importance in India, but has also been acknowledged and embraced by six nations globally: Bangladesh, Pakistan, Uganda, Israel, Malaysia, and Belize in Central America.

Interestingly, Nariman also argued that the Indian Parliament itself had endorsed the basic structure doctrine by enacting the 44^th constitutional amendment of 1978 which expressly declared that the fundamental right against self-incrimination (Article 20) and the right to life and liberty (Article 21) cannot be suspended even during the proclamation of an emergency. Nariman insisted that this declaration, coming in the wake of the lifting of the internal emergency imposed by the Indira Gandhi-led government in June 1975, was an essential recognition of the basic structure doctrine by the legislature itself –

“After the lifting of the oppressive internal emergency imposed in 1975, and after the sixth general election of March 1977, India’s newly constituted Parliament met and expressly declared by Section 40 of the Constitution Amendment Act, 1978 that the right to move any court for the enforcement of rights conferred by Articles 20 and 21 even during the period of an emergency can never be suspended. Therefore, it was the considered view of India’s Parliament – not the view of India’s higher judiciary but of India’s Parliament – that the fundamental right to life and liberty in Articles 20 and 21 were a part of the basic structure of the Constitution. Because in the statement of objects and reasons for this amendment, it had been expressly stated by the then government in office that this was done in order to check the misuse by the executive, of the emergency provision. In other words, the right to life and liberty from then onwards had, according to the Parliament itself, been a part of the basic structure of the Constitution.”

While tracing the doctrine’s application in India over the past five decades, Nariman pointed out that the basic structure doctrine has been invoked sparingly by the Supreme Court. Out of 22 reported cases challenging constitutional amendments on the basis of this doctrine, only seven have seen provisions being struck down, highlighting the court’s circumspection. 15 reported cases have upheld the validity of challenged constitutional amendments. To offer a contextual perspective on the frequency with which the apex court has invoked this doctrine, Nariman also highlighted the number of times the Constitution has been amended since 1950 –

“Since 1950, we have had 105 Constitutional Amendment acts under Article 368, in which 60 new articles were inserted in the Constitution, 17 originally enacted articles have been removed, and 154 originally enacted articles have been substituted or amended.”

Whenever the basic structure doctrine has been invoked by the Supreme Court to strike down a constitutional amendment, it has always been on the principle of good judicial governance, and not ‘interfering’ judicial governance, the senior lawyer asserted. In aid of this contention, Nariman drew support from renowned jurist Ronald Dworkin’s theory. Dworkin noted that judges, through their decisions, contribute to the ongoing interpretation and evolution of the constitution, acting like ‘partners’ with the framers of the original constitution –

“…Present-day judges who may have had nothing to do with the written Constitution when it was first framed, by reason of their position as judges have become and must act like partners with the framers of the Constitution in an ongoing project since it is and always will be an ongoing project, to interpret a historic document in the best possible light. Dworkin went on to say, and these are his words and not mine, judges may therefore sometimes make new law, either covertly or explicitly. But when they do so, they should act as deputies to the appropriate legislature enacting the law that they suppose the legislature would enact if seized of the problem. This has since become known around the world as the Hercules technique of constitutional adjudication.”

Nariman highlighted India's incorporation of the ‘Hercules technique’ of constitutional adjudication through Article 142, which empowers the Supreme Court to do 'complete justice' –

“This is an article which provides that in the exercise of its jurisdiction, the Supreme Court of India, and the Supreme Court alone – not the high court, nor any other court – may pass such decree or order in a case as is necessary for doing complete justice in any cause or matter pending before it. And the word ‘complete justice’ in Article 142 is deliberately left undefined. It is something which, in the opinion of the Supreme Court, and the Supreme Court alone will, in the words of Mahesh Jethmalani, serve the nation well.”

It is this imperative to do complete justice that has led the Supreme Court, at critical junctures in history, to deal with parliamentary excesses by invoking the basic structure doctrine. In illustration, Nariman spoke about the 1975-77 internal emergency, when the Indian Parliament introduced clauses attempting to exclude judicial review of constitutional amendments –

“And when this amendment was challenged, the then members of the Supreme Court, in rare unanimity, struck [them] down on grounds of their excessively overbroad formulation. The court held that in excluding all judicial review over any constitutional amendment, there was a violation of the basic structure doctrine.”

On veteran lawyer Ram Jethmalani, in whose honour the eponymous lecture series was organised, Nariman said at the outset of his speech –

“In life, one has to be fortunate in one’s given name. If your name has four letters, like Nani, N-A-N-I, for instance, it carries you a long way, as it carried the great Nani Palkhivala in his fascinating journey through life and the law. But if your first name is only a three-letter word, like Ram, it may carry you even further simply because Ram is on the lips of every God-fearing Indian morning, noon, and night.”

At the end of his speech, Nariman remembered Ram Jethmalani again, whom he referred to ‘a superb advocate, a great maverick, and my friend’. While delivering his concluding remarks, Nariman linked the continued relevance of the basic structure doctrine with Jethmalani’s enduring legacy, observing –

“I wish that the basic structure doctrine continues as long as people, particularly ordinary people, choose to remember the great human rights advocate of his time, Ram Jethmalani.”