The doctrine of basic structure

Part - I
The issue of a country’s constitution ideally having certain un-amendable articles has evoked many discussions with its proponents relying heavily on the basic structure doctrine of the Indian constitution. This argument warrants an academic analysis of the legal and political genesis of the cited doctrine.
The doctrine of unchangeable constitutional basic structure was propounded by the Supreme Court of India in 1973 in the case of Kesvavananda Bharti vs State of Kerala (AIR 1973 SC 1461). According to this doctrine, the Indian constitution has a ‘basic structure’, which cannot be changed or amended by parliament in the exercise of its amending power granted under Article 368. It places implied limitations on the power of parliament to amend the basic structure of the constitution. While the basic structure is not provided in any one particular provision of the constitution, it may be found in many, or a set of, provisions.
These elements of basic structure were identified by Supreme Court judges over the years, the majority being common but some also at variance as per interpretation of different judges. It is not an exhaustive list and ambiguity also remains over whether a high court judge too can add to this list. What is clear though is that the basic structure can only be identified by the judicial branch (the Supreme Court).
The Indian Supreme Court assumed the authority to strike down any constitutional amendment that it deems violates the basic structure. Interestingly, this power has not been given by the Constituent Assembly to the Supreme Court. Its genesis lies in the Supreme Court of the United States. No such power of judicial review was given in the US constitution but it was deduced by Chief Justice Marshal in the famous case of Marbury v Madison (1803). Likewise in India, in addition to the judicial review of the legislative acts expressly given under Article 13 of the Indian constitution, the Indian Supreme Court has arrogated to itself this power to constitutionally review a constitutional amendment by deductive logic rather than by on the basis of express power given to it by the Constituent Assembly or the people of India. It is also argued that the real sovereign – the people of India – have accepted it and their acceptance of this assumption of jurisdiction would amount to giving the court this power or jurisdiction. This is indeed an incredible argument.
This inquiry has three dimensions. One, what led the Indian Supreme Court to come up with the doctrine of basic structure 24 years after the framing of the constitution, and to overturn its own earlier decisions? Two, were the jurisprudential and textual arguments made in support of the doctrine sound and universally recognised? Three, does the real protection of the constitution and democracy not lie with the people of India instead of the court? This was proven in 1977 when Indira Gandhi was voted out by the people of India; the Supreme Court did not invoke the doctrine and remained silent while the people of India defended democracy. Was the Supreme Court capable of protecting the rights of the people? Critics also argue, citing A D M Jabalpur v Shukla, that the last mentioned assertion thoroughly failed in the face of emergency in 1975-1977.
When the Indian Supreme Court decided Kesavananda’s Case, there was already a long history of challenging constitutional amendments before the courts. Parliament had remained dominated by the Congress Party. Its earlier leaders were also the country’s founding fathers. They decided to introduce land reforms as a measure to change the lot of the masses of rural India. The right to property was first treated as a fundamental right, but then it was promptly taken away by the First Amendment to the Indian Constitution in 1951.
That may have been motivated partly on account of Nehru’s socialistic pretensions and to obtain British Prime Minister Atlee’s (1945-1951) support and blessings at a critical time of partition and its aftermath. At the same time there was a genuine threat from the landed class, which had been ruling India since 1890s pursuant to Lord Curzon’s policies. It was feared that they might take over power from the Indian Congress, which was constituted largely of an urban, educated and professional classes. Thus the very first amendment, which came about two years after the framing of the constitution, took away (amongst others) the right to property guaranteed under Article 31. It was challenged in 1951 and the case came up before the Indian Supreme Court in 1951 in the form of Shankari Prasad v Union of India.
The court was led by Chief Justice H L Kania and other judges who had been trained under strict British legal traditions and the precedents of the Privy Council and the Federal Court of India were before them. They dismissed the appeal and rejected any limitations on the amending power of parliament. The journey from Shankari Parshad (1951) to Sajjan Singh (1965), and from Golaknath (1967) to ultimately Kesavananda Bharati’s case is all about proprietary rights and class struggle for power.
The death of Nehru on May 27, 1964 and Indira’s coming to power in 1966, with a brief interval of L B Shastri in power in the interregnum, fuelled those fears further. Indira believed in ‘real’ power and, unlike Nehru, did not believe much in misleading facades. This further frightened the minorities and other classes in India. The Privy Purses & Banks Nationalization cases were decided by the Supreme Court of India in 1970s against the petitioners. The decisions in those cases established beyond any doubt that no solemn commitment given even by the “constituent power” was going to be honoured by the Congress. The constitution was at the mercy of the numerical majority.
Indian democracy was still nascent. The huge population of India comprised poor peasant classes, and Congress had miserably failed to change their lot. The Congress Party took all those measures for different reasons. It was partly to assuage the growing discontent among the deprived lot that had attached a lot of hope on independence from British rule in India. Since the large peasant class had the largest votes bank, Congress Party used this to its advantage.
Moreover, as this large class was not directly affected by the said amendments there was little chance of any revolt. They were rather promised by the party leadership that they were going to be the real beneficiaries of those amendments. However, the Supreme Court of India, in Golaknath (1967), tried to stop this mutilation of the constitution. As a result of those popular amendments, however, Congress returned to power with a bigger mandate. This time, in addition to further eroding constitutional guarantees, they also targeted the courts and the power of judicial review.
Nani Palkiwala fully exploited this situation while challenging the 24th and 25th Amendments to the constitution, as he was the moving force behind the Kesavananda Bharati’s case. He based his whole argument on the element of fear and knowing that this time the judiciary as a class also felt threatened from this onslaught. Under the 25th Amendment, the power of judicial review of constitutional amendments had also been taken away to some extent. There was therefore a likelihood that in the next move, the power of judicial review might be taken away completely. Belonging to a rich and educated community, Palkiwala founded his argument on fear and protectionism and converted it into a constitutional doctrine of implied limitations. Where M K Nambyar failed (Golaknath 1967), Palkiwala succeeded and sold it to the court.
The doctrine of basic structure propounded by the Indian Supreme Court would shape, determine and give direction to future constitutional jurisprudence in India. There were many a proselytisation and conversions in this process. Much has been stated in a book called ‘Untold story of Kesawanda Bharati’s Case’ by T R Andhyajina and other authors. People like H M Seervai, who appeared for the State of Kerala ultimately, accepted this doctrine (Constitutional Law of India 4th Edition). The emergency imposed by Indira Gandhi in 1975 converted those fears into reality and helped convince many people to accept this doctrine regardless of its flaws. Professor Upendra Buxi in fact recognised it and termed it a “doctrine of fear”.
The writer is additional attorney general for Pakistan.
To be continued