The Debate Over The Basic Structure of the Indian Constitution

Relevance: GS paper 2. Indian Polity

The recent statement by Vice President Jagdeep Dhankar regarding the basic structure doctrine of the Indian Constitution has sparked a debate on the limits of parliamentary sovereignty in amending the Constitution.

The Chief Justice of India, D. Y. Chandrachud, compared the basic structure of the Constitution to the North Star, an unfailing guide which shows the way when the path appears convoluted.

The basic structure doctrine was introduced by a 13-judge Bench in the Kesavananda Bharati Sripadagalvaru versus State of Kerala case in 1973, which held that Parliament cannot use its constituent power to alter the basic structure or the essential features of the Constitution.

The Parliament, as senior advocate Nani Palkhivala said, cannot cease to be a creature of the Constitution and become its master. At the heart of the debate is the question of whether Parliament has unlimited power to amend the Constitution or is it subject to inherent limitations.

The Kesavananda Bharati case:

• The Kesavananda Bharati judgment held that Parliament cannot use its constituent power to alter the basic structure or the essential features of the Constitution. The basic structure or framework of the Constitution is its living spirit, holding up the body of its text.
• Its existence cannot be pinpointed to any particular provision of the text. It is the “soul” of the Constitution, inextricably linked to the values enshrined in the Preamble, without which the document and the ideas that make it sacred would collapse.

The National Judicial Appointments Commission (NJAC) Act:

• The government’s recent efforts to gain a stronger role in judicial appointments to constitutional courts has led to a renewed debate over the basic structure doctrine.
• In 2015, the Supreme Court struck down the 99th Constitutional Amendment and the NJAC Act in a 4:1 majority decision, stating that the amendment would have altered the basic structure of the Constitution. The government had argued that the amendment was an exercise of the “will of the people” through Parliament.

The Basic Structure Theory in Constitutional Interpretation:

• Granville Austin’s Working of a Democratic Constitution said the basic structure doctrine “is fairly said to have become the bedrock of constitutional interpretation in India”.
• The Constitution Bench in the NJAC judgment encapsulated the principle behind the basic structure theory when it said “a change in a thing does not involve its destruction”.

Different judges on the Kesavananda Bharati Bench gave different examples of what constitutes the ‘basic structure’ of the Constitution, including:

• Supremacy
• The federal and secular character of the Constitution
• Separation of powers among the legislature, executive and judiciary
• Dignity of the individual
• Unity and integrity of the nation
• Sovereignty of India
• Democratic character of our policy
• Welfare state
• Egalitarian

The ongoing debate over the basic structure doctrine highlights the crucial role it plays in maintaining the integrity of the Indian Constitution and preserving the values it embodies.

The Kesavananda Bharati Case:

The Kesavananda Bharati case is considered one of the most important cases in Indian constitutional history. The case came before the Supreme Court in the early 1970s, after the Indira Gandhi government had recently come to power and introduced several constitutional amendments.

The main issue before the court was whether parliament had the power to amend the constitution, and if so, what limitations, if any, existed on this power.

The Basic Structure Formula:

• Justice O. Chinnappa Reddy in his The Court and the Constitution of India: Summits and Shallows says Chief Justice S. M. Sikri, who led the Kesavananda Bharati Bench, never divulged from where he derived the basic structure formula.
• “Since there are no signposts signalling basic features of the Constitution, every attempt to discover a basic feature becomes a ‘voyage of discovery’,” Justice Reddy wrote.

The 24th and 25th Constitutional Amendments:

• The government, upset by the Supreme Court’s Golak Nath verdict which upheld the power of judicial review of constitutional amendments, introduced several Constitutional Amendments.
• The 24th Constitutional Amendment changed Article 13, a provision which mandated that no ‘law’ could take away or abridge fundamental rights.
• The Golak Nath judgment had interpreted the term ‘law’ in Article 13(2) to include ‘constitutional amendments’ too. The Parliament through the 24th Amendment said a constitutional amendment cannot be rendered void merely because it infringed fundamental rights.
• The 25th Constitutional Amendment introduced Article 31C into the Constitution to implement the Directive Principles of State Policy under Article 39 (b) and (c) for distribution of material resources of the community and to prevent concentration of wealth.
• The government’s aim was to facilitate nationalisation of industries and socialist measures. The Amendment mandated that any law enacted with this objective cannot be “deemed” void on the ground that it was inconsistent with fundamental rights. The latter half of Article 31C added that such a law would be outside judicial review. In fact, even a petition cannot be filed in court challenging such a law.

The Kesavananda Bharati judgment:

• In the end, the 13-judge Bench upheld the Parliament’s power to amend the Constitution as long as it adhered to its basic structure or essential features.
• The court struck down the part of Article 31C which took away the power of judicial review of the court. However, the court upheld the 29th Constitutional Amendment which incorporated two land reform provisions made in the Kerala Land Reforms Act, 1963 in the Ninth Schedule, immunising them from litigation claiming violation of fundamental rights. The 26th Constitutional Amendment on abolition of privy purses was not considered by the court.

The Kesavananda Bharati judgment established the basic structure doctrine, which holds that certain essential features of the Constitution, such as the fundamental rights, cannot be amended by parliament.

It also established the principle that the judiciary has the power to review and invalidate constitutional amendments that violate the basic structure of the Constitution.

Counter-Argument:

The basic structure doctrine, established in the Kesavananda Bharati case, has been the subject of ongoing debate and counterarguments. One argument put forth by the Union and the States in the case, was that constitutional amendments should not be nullified by the court as they mirror the “democratic will of the people”.

However, Senior Advocate Nani Palkhivala argued that people are not associated with the amending process at all, and that the Parliament’s will is not the people’s will.

The Aftermath of the Kesavananda Bharati case:

• The judgment in the case was delivered on the last working day of Chief Justice Sikri. Justice A.N. Ray, who was part of the minority which upheld the unlimited power of Parliament to amend the Constitution, superseded Justices J. M. Shelat, K.S. Hegde and A. N. Grover to become the 14th Chief Justice of India.
• All three of his colleagues resigned. This incident is considered as one of the reasons for the evolution of the Collegium system, which is also part of the basic structure doctrine.

The use of the Basic Structure Doctrine in later cases:

• The basic structure doctrine has been used in several cases over the years, including the Indira Gandhi versus Raj Narain case, in which the court removed the 39th Constitutional Amendment passed during the Emergency period which put the elections of the President, Vice President, Prime Minister and Lok Sabha Speaker beyond judicial review.
• In 1980, the court once again used the basic structure formula, in the Minerva Mills challenge to the 42nd Amendment, to uphold judicial review of constitutional amendments and to protect fundamental rights.

The courts have also clarified the basic structure, including that of the “primacy to the opinion of the Chief Justice of India in judicial appointments and transfers in the context of the independence of the judiciary as a part of the basic structure of the Constitution to secure the rule of law essential for preservation of the democratic system”.