This Article is written by Malaya Joshi, student of The West Bengal National University of Juridical Sciences
The date 26th April, 1973, is of great significance for the citizens, as well as for the constitutional history of our country, as on this day the Supreme Court of India ‘formally’ introduced the doctrine of basic structure, while delivering a landmark judgement in the case of Kesavananda Bharti v State of Kerala. There is no mention of this doctrine in our Constitution; but the roots of the same can be found in the Constitution of Germany. This doctrine curtails the amending powers of the parliament, as it states that: “There exists certain basic features in the constitution which cannot be destroyed or altered by the parliament in exercise of its amending power under Art. 368 of the Constitution”. The establishment of this doctrine was born out of necessity, as in the absence of it, the courts would have suffered a continuous erosion of its power of judicial review. The author in this article will try to elucidate how this doctrine has been exploited by the courts, with special reference to NJAC case in the I part, and in II part discuss about problems with the doctrine and problem which has arisen from it, and suggest some pragmatic ways to overcome those problems.
The basic structure doctrine was introduced during the Prime Minister-ship of Indira Gandhi. The constitutional law scholars regard this time period as darkest period in the history of Constitution, as the Parliament was abusing its amending power and continuously undermining the judiciary. The Supreme court of India, established the basic structure doctrine as a ‘shield’ against the parliament’s unconstitutional constitutional amendments, but overtime it is evident that courts are using this doctrine as more of a ‘sword’ than a shield. The most recent example of this is the case of Supreme Court Advocates on Record Association v Union of India. In this case, the Apex Court declared 99th Constitutional Amendment and NJAC (proposed institution which shall be responsible for appointments and transfer in the higher judiciary) as unconstitutional as well as void on grounds of basic structure violation. The Court has used the basic structure doctrine inappropriately, this can be asserted based on two contentions, firstly, Justice Khehar and the majority have not been able to deliver a convincing judgement as to how the primacy of judiciary in appointments is a part of un-amendable basic structure and Secondly, the judgment does not reveal how does judicial primacy in appointments encourage independence of judiciary? Hence, it is evident that the judges have arbitrarily used the basic structure doctrine, for their own-purpose.
This judgement has been criticised by many renowned lawyers and scholars. Justice Chelameswar, who gave the dissent in this judgement even criticised this in the media. In the judgement also, he accentuates the egotism of the Apex Court, which it uses under the garb of doctrine of basic structure and independence of judiciary. The Court due to this egoism used basic structure doctrine as a weapon against the Constitutional Amendment and declared it unconstitutional. The Supreme Court of India is the final interpreter of the Constitution, and once the court delivers a judgement whether correct or incorrect, there is no other organ to correct its judgement, other than Supreme Court itself. So, we can say that Apex Court has assumed a lot of power under the garb of basic structure, and this can be construed as sort of veto power against each constitutional amendment. The doctrine of basic structure was devised for use under special circumstances only, i.e., threat to the basic/fundamental framework of our constitution, but now it is being used as a weapon by the judiciary, which can turn out to be problematic in future.
The doctrine of basic structure should not be ambiguous and vague as it currently is; it should be defined and structured on similar lines as done by Germany in its Constitution. Judiciary asserts that strength of the basic structure lies in its abstractness; the rationale given for this assertion is it that in this way the judiciary can keep a check on the constitutional amendments passed by the parliament. The author does not deny this fact, but this ambiguity and vagueness over time has become a major problem. Because of the undefined elements of basic structure, judges are free to do any interpretation, as to decide whether a particular element is part of the basic structure. The author argues that this is a very arbitrary manner, because which element or principle forms a part of basic structure may vary from judge to judge. For instance, consider the case of Kesvananda Bharti, (one of the most important judgement in Indian history), the outcome of the case was 7:6, the judges who constituted the majority, all of them acknowledged that there exists basic structure of the constitution, but each judge excluding Justice Khanna, gave their own list of principles which formed part of the basic structure, according to their interpretation and own satisfaction, only a handful of principles were common in their list. This implies that validity of a Constitutional Amendment is contingent on the personal preferences and ideology of each judge present on the bench.
If this happens, the judges shall gain the ability to amend the constitution, the power of which the framers of the constitution had exclusively given to parliament. For this very reason, Anuranjan Sethi, said that the doctrine of basic structure can be exhibited as a vulgar display of usurpation of constitutional power by the Supreme Court of India. Therefore, the author asserts that the basic structure doctrine should be defined in unambiguous terms.
The Kesavananda Bharti Judgement does not say anything about the Bench strength required to decide which principles/provisions forms a part of basic structure, whether it needs to be a constitution bench or a three Judge – bench would also suffice. The author believes that the matters related to inclusion of certain principles as part of basic structure should ‘ideally’ be taken by at least a nine – Judge bench. The rationale behind this is based on the idea that inclusion of a principle as part of basic structure of the constitution is of immense importance, which should not be done by a handful of judges. Inclusion of any principle will have large scale implications in present as well as future judgements; the judges are essentially deciding the law of the land; therefore, this process should involve an ample amount of discussion and wisdom of as many judges as possible.
With the introduction of basic structure doctrine, a very serious problem has arisen which has not been dealt with till date. The problem which is being mentioned is the violation of doctrine of separation of powers. The abstractness of the basic structure doctrine has given the judiciary immense power over the other two organs of the state. At times, judiciary has used the basic structure doctrine arbitrarily, for declaring a Constitutional Amendment invalid. 99th Constitutional Amendment is one such example. The system of checks and balances has utterly failed, as there is no one to keep a check on the judiciary. Suppose, the legislature passes a Constitutional Amendment to curb this overriding power of judiciary, then also judiciary can declare that amendment as unconstitutional on grounds of violation of the basic structure. S. Gupta contends, that the principal problem is the task of defining and identifying the features of basic structure which is a tedious as well as time consuming job. Currently, neither the judiciary is in a position to identify the fundamental features of the Constitution in its entirety and nor the legislature is aware of the scope of its amending power. Therefore, it has made the judiciary the most powerful organ of the state.
As Arun Jaitley said, it cannot be tyranny of the unelected otherwise our democracy will be in grave danger. The author believes that this problem needs to be solved as soon as possible. A suggestion for this problem maybe that a committee can be formed comprising of members from of all the three organs of the government as well as eminent juristic personalities, and start the codification of the basic structure, which later should be added to the constitution by bringing a constitutional amendment. There is no doubt that this will be a time-consuming process, but once the codification is completed, multiple problems will be resolved.
It is an irrefutable fact that the doctrine of basic structure, has been of immense significance during the Prime Minister-ship of Indira Gandhi. But it has also been observed in our discussion that how the courts are using it as a weapon nowadays. It is highly unlikely, and also not desirable that this doctrine shall be overruled in future, as this would lead us to a position similar to pre-Kesavananda Bharti. The suggestions that the author gives during the discussion above may be used to enhance the doctrine, and solve the problems to a great extent.
- Arun Jaitley on NJAC verdict: Democracy cannot be ‘tyranny of the unelected’, The Indian Express [Online] (19th, October 2015, 10:25 AM) Available at: – https://indianexpress.com/article/india/india-news-india/njac-sc-verdict-democracy-cannot-be-tyranny-of-the-unelected-says-arun-jaitley/
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- Kesavananda Bharti v State of Kerala, I.R 1973 S.C. 1461 (India)
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- Supreme Court Advocates on Record Association v Union of India, (2016) 5 S.C.C 1 (India)
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