Arguments For And Against Basic Structure Doctrine

Recently, the Basic Structure Doctrine of the Constitution has been a point of significant debate within India’s legal and political circles. The former Chief Justice of India, Ranjan Gogoi, stirred up discussions when he described the doctrine’s jurisprudential basis as “very debatable” during a Parliament session on August 7, 2023.

His comments came as he defended the Government of National Capital Territory of Delhi (Amendment) Bill, 2023, in his first speech as a nominated Rajya Sabha member. He voiced his opposition to the Opposition’s use of the Basic Structure Doctrine against the bill.

The doctrine was further scrutinised earlier in the year when Vice President Jagdeep Dhankar, on January 11, 2023 questioned its legitimacy. He posited that Parliament, as the country’s primary elected body, holds supreme power and its capacity to amend should not be hindered by an unwritten rule like the Basic Structure Doctrine.

However, current Chief Justice of India DY Chandrachud countered these views on January 22, 2023 emphasising the Constitution’s supremacy. He argued that the Basic Structure Doctrine, derived from judicial precedents, plays a critical role in preserving the Constitution’s “soul”.

More recently, on August 8, 2023, Chief Justice of India Dr DY Chandrachud also called the ‘basic structure doctrine’ a north star “which guides and gives a certain direction to the interpreters and implementers of the Constitution when the path ahead is convoluted.”

The Origin Of Basic Structure Doctrine

According to the Basic Structure Doctrine, certain fundamental principles and essential features of the Constitution are considered untouchable by Parliament’s amendment powers. The Supreme Court’s landmark judgement in the Kesavananda Bharati case (1973) established the “Basic Structure Doctrine” (BSD).

Swami Kesavananda Bharati, the leader of Edneer Mutt in Kerala, challenged the Land Reform Act of the Kerala government. This Act aimed to restrict the management of his property, allegedly violating his fundamental rights under Articles 25, 26, 14, 19(1)(f), and 31 of the Constitution.

A special bench of the Supreme Court of India consisting of 13 judges ruled with a 7–6 majority on 24 April, 1973, that Article 368 of the constitution did not provide the Parliament the authority to change the basic structure of the Constitution. The Court propounded what has come to be known as the “Basic Structure of the Constitution“.

Although Kesavananda v. State of Kerala is often credited as its originator, the seeds of the doctrine were actually sown in Golak Nath v. State of Punjab AIR 1967 SC 1643. In the Golak Nath case, the Supreme Court established that fundamental rights enshrined in the Constitution possessed a “transcendental” nature, and therefore, could not be amended or revoked.

Building upon this foundation, the majority in the Kesavananda case further asserted that the power to amend the Constitution does not extend to altering its basic structure or framework, which would fundamentally change its essence and character.

What Are The Objections Raised By Critics Against The Basic Structure Doctrine?

Not in the Constitution

One significant concern regarding the basic structure doctrine is the absence of clear mention in our Constitution. Nowhere does the Constitution explicitly state that certain parts are immutable.

Judges overruling Parliament

Should judges have the authority to overturn laws passed by Parliament? This concept of the basic structure empowers judges to invalidate laws that they deem incompatible with the fundamental principles of the Constitution. However, considering that judges are not elected, it raises questions about the extent of their influence over legislation.

Messing with separation of powers

The concept of the basic structure contradicts the separation of powers in our government. It grants the courts the authority to review and potentially halt constitutional amendments enacted by the legislators.

The basic structure doctrine is poorly defined

The five fundamental features, as outlined by Justice Sikri in the Supreme Court’s 1973 ruling in the Kesavananda Bharati case, are widely acknowledged. These features include the supremacy of the Constitution, republican and democratic governance, secularism, federalism, and the separation of powers.

In this landmark ruling, the bench, with a narrow majority of 7-6, determined that while Parliament possesses the authority to amend the Constitution, it cannot alter its fundamental structure.

However, a consensus remains elusive as no majority judgement delineates the definitive set of fundamental characteristics. Judges have expressed their individual preferences, referring to them interchangeably as “basic features,” “elements,” “structure,” or “character.”

Here are several examples of what some judges have deemed unalterable within the Constitution: a welfare state, equality of status and opportunity, an egalitarian society, a delicate equilibrium between Fundamental Rights and Directive Principles, and the pursuit of socialism.

The five fundamental features outlined in Kesavananda pose challenges due to their lack of precise definition. For instance, the concept of “separation of powers” fails to provide clear guidance on its implementation.

The interpretation of the basic structure concept may vary among different judges, leading to potentially disparate decisions based on personal perspectives.

The concept of basic structure is unclear. There is no explicit delineation of what it precisely encompasses, leading to a situation where its interpretation is left to the discretion of the judges. This leaves room for ambiguity and potential unpredictability.

Too much power to the judges

There have been instances where judges may have exceeded their authority, as seen with the NJAC bill. Despite being passed by Parliament and supported by most states, the principle of the basic structure was invoked to challenge it, highlighting the potential excess of power wielded by judges.

Constitution is a living document

The concept of the basic structure doctrine suggests that the actions of one generation of Indians can have a lasting impact on future generations. It is undeniable that the Constitution holds supreme authority and cannot be disregarded by the parliament. However, it is equally important to recognise that the Constitution is a living document that evolves with time and circumstances.

The Supreme Court can’t adjudicate on the validity of constitutional amendments

The Constitution bestows courts with the authority to overrule not just executive orders, but also any legislation that contravenes the Fundamental Rights encompassed in Part III of the Constitution (Bill of Rights). However, the Constitution doesn’t explicitly state whether these courts can also rule on the legitimacy of constitutional amendments — those that are passed with the necessary special majority and adhere to the process outlined in Article 368.

The Basic Structure Doctrine is argued to be against the principles of democracy. This is primarily because the court’s own interpretation of its jurisdiction and efficacy becomes the sole restraint on its judicial authority. Consequently, judges who aren’t elected have taken on political power that the Constitution doesn’t assign to them.

What Reasons Do Supporters Offer In Favour Of The Basic Structure Doctrine?

It is the only legal defence against parliamentary hegemony

The significance of the basic structure doctrine cannot be overstated. It stands as the sole legal safeguard against parliamentary dominance and the potential rewriting of the Constitution, ensuring the preservation of its integrity and fundamental principles.

The doctrine of basic structure, as it pertains to nullifying amendments that alter the essence of the Constitution, is an indispensable aspect of democracy. Why? Because it serves as a check on the unchecked authority of parliamentary majorities and prohibits the excesses of constitutional abuse.

Without Basic Structure Doctrine Parliament can even alter Fundamental Rights

In the absence of the Basic Structure Doctrine, Parliament holds the power to modify vital aspects of the Constitution, including federalism, the separation of powers, and fundamental rights.

Article 368 of the Constitution, which specifies the amendment procedure, states “there shall be no limitation whatsoever on the constituent power of Parliament”. Despite being declared invalid by the Supreme Court in 1980, the section inserted by Prime Minister Indira Gandhi’s 42nd Amendment in 1976 continues to remain in the Constitution.

The basic structure doctrine serves as a safeguard against the erosion of the Constitution’s defining characteristics.

These foundational elements formed the bedrock of the framers’ efforts in crafting its diverse provisions. Therefore, it is only natural that these core features persist as long as the Constitution endures. They represent the very essence on which the functioning of our political system relies. And for as long as the Constitution prevails, our political structure will remain intact.

The concept of ‘eternity limits,’ as elucidated by the basic structure doctrine, plays a crucial role in safeguarding the enduring essence of the original Constitution.

Court has the right to interpret and preserve the Constitution

There are several criticisms against the basic structure doctrine, particularly in relation to the exercise of judicial review, where a court can invalidate legislation or government actions.

One argument is that the basic structure doctrine goes against the principle of separation of powers. However, it’s important to note that this view is outdated and no longer holds true.

The Court does not intervene out of opposition to the Parliament. Its role is to interpret and safeguard the Constitution, stepping in only when there is a violation of constitutional boundaries. The Court’s duty is to preserve the Constitution, ensuring its integrity and adherence to the established limits and principles.

Judicial review of constitutional amendments is not undemocratic

The notion that judicial review of constitutional amendments is undemocratic rests on the mistaken belief that judges are opposing the will of the people. Contrary to this, when judges invalidate an amendment or statute for contravening the Constitution, they remain faithful to the original intent. In doing so, they uphold the true desires of the people rather than thwarting them.

It is a feature of modern and progressive democracy

The basic structure doctrine is a hallmark of modern and progressive democracies. Out of the 742 world constitutions enacted between 1789 and 2015, it is more common for modern constitutions to include unamendable provisions.

While only 17 percent of constitutions from 1789 to 1944 had such provisions, the number increased to 27 percent for constitutions enacted from 1945 onwards.

Basic Doctrine Invoked In NJAC Bill

The NJAC Act aimed to establish a National Judicial Appointments Commission, which would have expanded the government’s involvement in the appointment of judges. It sought to replace the existing collegium system, where senior judges make appointments without public scrutiny.

In December 2022, Vice-President Jagdeep Dhankhar waded into the intense debate between the Central government and the Supreme Court regarding judicial appointments. He expressed his view that the Supreme Court’s 2015 ruling, which invalidated the National Judicial Appointments Commission (NJAC) Act, was a striking example of undermining Parliamentary sovereignty and disregarding the will of the people.

Mr. Dhankhar questioned how the judiciary could have disregarded a constitutionally approved provision, which was unanimously passed and reflected the collective will of the people.

The NJAC Act, which sought to overturn the collegium system of appointing Supreme Court and High Court judges, was struck down by the top court in 2015.

The verdict on the 99th amendment to the Constitution and the NJAC Act, 2014 was pronounced by a bench comprising Justice Jagdish Singh Khehar, Justice J Chelameswar, Justice Madan B Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel.

The Supreme Court declared the National Judicial Appointments Commission (NJAC) as unconstitutional. In a significant verdict, the Court rejected a major law passed by Parliament in 2014, which had received ratification from 20 state Assemblies. As a result, the collegium system of appointing judges has been reinstated.

This marked the Supreme Court’s third ruling on the appointment for judges. The first, in 1993, introduced the collegium system, while the second in 1998 reaffirmed the system with certain modifications.