‘Basic Structure’ as democratic defence
Renowned German Professor Dietrich Conrad travelled to India in 1965. He lectured at the Banaras Hindu University on certain facets of the Constitution, which are inalienable, unalterable, and non-negotiable. The professor spoke about the constitutional limitation to the process of lawmaking. He indicated that Parliament cannot change the Constitution’s basic features by way of an amendment.
Article 368 of the Indian Constitution talks about the power of Parliament to amend the Constitution. It also lays down the procedure. It does not, however, say if this power is unlimited or if there are implied limitations to the legislative ambitions. This required a judicial resolution. Initially, in Golaknath v. State of Punjab (1967), the Supreme Court said that the fundamental rights under Part III of the Constitution cannot be curtailed through an amendment. It was an 11-judge bench judgment. Later, in Kesavananda Bharati v. State of Kerala (1973), a 13-judge bench of the Supreme Court endorsed the power to amend without altering the basic features of the Constitution. Thus, the German professor’s notions eventually got judicial recognition in India.
The doctrine has its admirers as well as opponents. It is unsafe to insist on a perpetual resolution or a final answer to this controversy. Depending upon the political context and the ground realities, the elastic idea of basic structure can manifest in varied ways.
The vice president of India recently questioned the doctrine of the basic structure of the Constitution. On the other hand, the Chief Justice of India said that it guides the nation like a North Star. The vice president, thereafter, reiterated that Parliament is the North Star of democracy. We have thus revived the conventional debate on the issue.
This time, the diametrically opposite views have emanated from those at the helm of affairs. The Indian experience, as well as the global scenario, compels one to support the views of the CJI. The vice president’s emphasis on the supremacy of Parliament itself is a questionable assumption. The Constitution does not envisage it.
Many think that the Indian democracy had a narrow escape when the Supreme Court evolved the doctrine in Kesavananda Bharati. The majority of the judges held that Parliament cannot amend the Constitution by altering its basic structure. The Court said so by a 7:6 majority. Six judges in Kesavananda Bharati clearly endorsed the idea, while six others rejected it. The judgment by the remaining judge, Justice H R Khanna, is yet treated as part of the majority opinion, though some kind of ambivalence is attributed to him by certain scholars. Justice Khanna said that “the words ‘amendment of the Constitution’ with all their wide sweep and amplitude cannot have the effect of destroying or abrogating the basic structure or framework of the Constitution”. The order sheet of the Court said that Justice Khanna was part of the seven judges who imposed limitations on Parliament’s constituent power.
Later, in Indira Gandhi v. Raj Narain (1975), Justice Khanna himself clarified that he was with the majority. This case also was a reassertion of the principle. Later on, the apex court reaffirmed the doctrine in cases like Minerva Mills (1980) and Waman Rao (1980).
The doctrine of basic structure, no doubt, helped us maintain certain principles, some of which are generally accepted and others which are debated. The basic structure is an amalgamation of several concepts. It is an abbreviation of our constitutional philosophy that offers a conceptual foundation against totalitarianism. The supremacy of the Constitution, sovereignty of the nation, the rule of law, separation of powers, independence of the judiciary, judicial review, federalism, and many such principles were held as part of the basic structure. Different judges, in subsequent cases, supplemented the idea and expanded the doctrine.
That the phrase ‘basic structure’ is not specifically mentioned or defined in the Constitution does not diminish its value. The Constitution needs stability to provide a set of intrinsic values or at least a collection of values which are supposed to guide the nation. It is not like an election manifesto.
Since Kesavananda Bharati, the Supreme Court has been filling a vacuum in India’s basic law with a sense of pragmatism. We do not have an eternity clause in the Constitution as it occurs in some other jurisdictions. Article 79(3) of the German Constitution indicates that an amendment altering the essential feature of the ‘Basic Law’ is impermissible. Even those who advocated for parliamentary sovereignty and opposed the basic structure doctrine had to alter their priorities later, in the changed times.
It is significant to note that in a first-past-the-post voting system, even when most people voted against a government, there could be a clear majority for the government in Parliament. This is an Indian reality. Though this is a topic for another discourse, the current electoral system in India seriously questions the legitimacy of the majoritarian claims.
Even otherwise, the basic structure doctrine might embarrass majoritarianism propelled by individuals or militant organisations. There was a conscious attempt to review the verdict in Kesavananda Bharati and thereby revive the unlimited power of Parliament. It was during the dark days of Emergency. Even a 13-judge bench was constituted. Arguments were heard for a couple of days. Many felt that the obvious intent of the move was to revive the absolute authority of Parliament. For reasons not known clearly, the bench did not proceed with the case further.
In Parliament on October 27, 1976, Prime Minister Indira Gandhi openly criticised the doctrine of basic structure. As we know, the doctrine, on its own, could not end the proclamation or continuation of Emergency. The institutions, including the judiciary, failed, and India remained under a dictatorship, despite the Constitution and its basic structure. The makers of the Constitution did not want this to happen.
The present controversy, in a way, is a historical reminder. The Constitution can survive only when there is political and ideological support from its institutions and the people at large. The basic structure is an institutional assertion against aggrandising majoritarianism if we are prepared to learn from the errors of the bygone days.
Kaleeswaram Raj
Lawyer, Supreme Court of India
(Tweets @KaleeswaramR)