The doctrine of basic structure

Part - IIIn a display of judicial craftsmanship, Sikri Court also imitated Chief Justice Marshal to a degree by not taking on the sitting government. The short order was signed by the full court, which upheld the 24th and 25th Amendments. The buck was passed on to the smaller benches.

By our correspondents
April 01, 2015
Part - II
In a display of judicial craftsmanship, Sikri Court also imitated Chief Justice Marshal to a degree by not taking on the sitting government. The short order was signed by the full court, which upheld the 24th and 25th Amendments. The buck was passed on to the smaller benches.
The court overruled Golaknath, which pleased the government. The constitutional amendments were upheld, again much to Congress’ pleasure. However, it laid down the foundations of the doctrine of ‘basic structure’, which would determine the future constitutional course and jurisprudence in India. It was indeed a smart move on the part of the Indian Supreme Court, regardless of its legal soundness or otherwise.
The Indian Supreme Court later relied upon this doctrine and the case of Kesavananda Bharati while deciding the case of Indira Gandhi v Raj Narian (1975), but this led to an emergency that lasted for two years. Khana J, whose opinion in Kesavananda Case was considered to be ambiguous, clarified his position in the aforementioned case. Ray J, who had become chief justice by then, tried to form a larger bench to overrule Kesavananda Bharati Case but he could not muster enough courage in the face of strong resistance from the bar. The events of 1975 were to cast long shadows. It is said that if Justice Krishna Ayer had not granted a stay order to Indra Gandhi, perhaps the emergency could have been averted. The whole jurisprudence and long sermons of the said judge, it is said, are in fact a jurisprudence of apology. Ayer lived long with this guilt.
It may be stated that it is not the doctrine of basic structure or the Supreme Court that saved the Indian constitution or the largest democracy. It was the people of India who saved democracy and the constitution. The constitution is a political document and an amendment to the constitution is therefore a political question. My understanding is that the solution to a political question does not lie in

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courtrooms. People’s rights and democracy must have surer foundations. This leads us to the second dimension.
In order to understand the psychological, social and historical reasons behind the doctrine of basic structure one may have to take a look at the history of India, and the 1940s in particular. After the Cabinet Mission had concluded its conference with the leaders of the Indian National Congress, All India Muslim League and other parties it was apparent that Quaid-e-Azam Muhammad Ali Jinnah would agree to a constitutional arrangement. But this arrangement was destroyed by Pandit Jawaharlal Nehru when he said that the future constitution could be amended by the majority.
Jinnah then called for the direct action day on October 26, 1946. H M Seervai, a well known constitutional lawyer and author of the Constitutional Law of India, has given a full detail of all those events which led to the partition of India, chief amongst them: fear of Hindu majority rule. He also published this introduction separately in the form of a book titled ‘Partition of India: legend and reality’. This act of going back on words by Nehru and the threat or fear of the majority rule actually became the basis for the said doctrine of basic structure to protect the minorities.
India is home to minorities including Muslims, Christians, Parsis, Sikhs and some other religious groups. From the 1950s it was clear that the so-called socialist proclivities and pretensions of Nehru and his courtiers were meant to neutralise possible threats to their rule from the landed aristocracy, particularly in UP. So in order to remove these potential threats, land reforms were introduced throughout the country. The Indian Supreme Court that was selected by Nehru readily approved amendments made to Article 31 of the constitution. Events after the death of Nehru further aggravated the embedded fears.
The Indian Supreme Court, while grappling with the issue of the 17th Amendment in Golaknath’s case, in utter desperation termed a constitutional amendment a law within the meanings of Article 13 of the Indian constitution and held that if an amendment was against fundamental rights, it would be void. This was surely not a sound tenable line of reasoning and the same was bound to collapse sooner or later. And the sooner the better, as it could not stand the test of reasoning. It was clearly an unsure guarantee of people’s rights and the Indian Supreme Court fully knew it.
While arguing Kesavananda, Palkiwala came up with the argument of implied limitations. He was either influenced by Dr Conrad’s (a German scholar of not much fame or recognition in Germany) lectures or the observations of Cornelius C J of Pakistan in Fazal-ul-Qadir Chaudhary’s case (1963), referred to by Madhulkar J in Sajjan Singh’s case. He tried to find textual bases for his argument from: (a) the language employed in Article 368 of the constitution as originally framed (which was amended by the 24th Amendment after the ruling in Golaknath); and (b) the fact that the Indian Constituent Assembly which framed the Indian constitution had ‘constituent power’ while parliament which came into being as a result of the constitution was or had ‘constituted power’ and that being constituted power, parliament could not assume the powers of a constituent power and change the basic structure of the constitution.
It may be recalled that in the Kesavananda case, the 24h Amendment to the Indian constitution had been challenged. The ratio of the Indian Supreme Court in Kesawanda Bharati’s case, in essence, revolved around the afore-said arguments and with little variation of the semantics in all the seven opinions written by the unclear majority, judges followed the same line of reasoning. It was interesting to note that by interpreting the words of Article 368, particularly the word “amend”, the Indian Supreme Court on the one hand read into the constitution implied limitations and on the other, arrogated to itself a jurisdiction that was never conferred on it by the Constituent Assembly – ie the power to judicially review a constitutional amendment passed by parliament in accordance with the procedure provided therein. Limitations could be implied but not the jurisdiction.
One could argue that Chief Justice Marshal had also assumed jurisdiction of judicial review of legislative acts by deductive logic so why could the Indian Supreme Court and its judges not do the same and also derive such jurisdiction similarly? The answer to this logical fallacy was given by the United Supreme Court in Dillon v Gloss (256 U.S.368) when the 18th Amendment was challenged before it. The US Supreme Court refused to acknowledge any such limits on the power of the Congress.
It was three years later in 1975 that the Indian Supreme Court (Khana J) improved upon the doctrine of basic structure (Indira Gandhi’s case), and then further in 1980 (the Minerva Mills Case). By then the doctrine was well entrenched in Indian jurisprudence particularly after the terrible years of emergency. A non-Congress government came to power for the first time since Independence. The emergency years also provided further psychological reason to accept this doctrine, despite its obvious jurisprudential flaws.
The doctrine of basic structure is not a rule of interpretation. It has taken the form of a supra-constitutional principle, which even binds the norm creating body – parliament. Books on jurisprudence, constitutional and legal theory and standard books on the British constitution or constitutions modelled on the British bonstitution, do not recognise such a doctrine that can take the form of a higher constitutional principle in this way. Since this doctrine was propounded by the Indian Supreme Court, therefore for all legal purposes the Indian Supreme Court became a norm-creating body. Parliament was bound by it. The question is: can such a constitutional position be defended on any principle that was acceptable beyond India and in other jurisdictions as well?
To be continued
The writer is additional attorney general for Pakistan.

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