Today's Editorial

Today's Editorial - 31 May 2023

The Basic Structure judgment

Source: By AvinashKolhe: The Free Press Journal

The Vice President of India Jagdeep Dhankar questioned the validity of the ‘Basic Structure’ doctrine, which in practice means that the Parliament cannot amend certain features of our Constitution. Dhankar added that in a democracy, Parliament is supreme and its amending powers cannot be capped. To this, the Chief Justice of India D Y Chandrachud replied on January 22 that in India, the Constitution is supreme and further added that this doctrine is essential to protect the soul of our Constitution.

The basis of this discussion is the landmark judgment delivered on 23 April 1973, a good 50 years ago, which later became well-known as ‘the Basic Structure doctrine’. The Supreme Court first propounded the ‘basic structure’ doctrine in the Keshavanand Bharati v/s State of Kerala case and it was delivered by a full bench led by the then Chief Justice of India, Justice Sikri, with a 7-6 majority. The judgment created a new concept in Indian jurisprudence that proved to be extremely durable. Since then the Judiciary and the Legislature have not locked horns. Now it appears that the BJP wants to look at it afresh. Today as we celebrate the golden jubilee of that historical verdict, we notice a sharp political divide on the issue. It is an old charge that the Hindutva forces represented by the Bharatiya Janata Party (BJP) are not comfortable with the secular, republican nature of our Constitution.

All over the world democracies negotiate a relationship between the Judiciary and the Legislature. The American model provides for the judicial review created in 1803 by chief justice John Marshal. In America, the Constitution is supreme. Our constitution-makers mixed and married the UK model with the USA model to create an Indian model which is close to the American model. We too have written constitution and judicial review.

Now let us look at the political dimension. Though the Indian judiciary was armed with the power of judicial review, it hardly used it as long as Pandit Nehru was at the helm of affairs. The confrontation between the Judiciary and the Legislature, however, began immediately after the promulgation of the Constitution. The Nehru government wanted to take over surplus land from the zamindars for which Parliament had passed the Zamindari Abolition Act, 1951.

The zamindars promptly went to court and the SC ruled in their favour stating that the ‘right to private property’ was part of the fundamental rights. Nehru realised that his dream of building a socialist India would remain unfulfilled. He decided to add the 9th schedule to the Constitution where such laws would be beyond judicial review. This is how the hurdle of judicial review was circumvented. Back then people at large had faith in the political class.

This faith was steadily eroded when Indira Gandhi came to power. She was a woman in a hurry. In July 1969 she nationalized 14 top banks. This decision was struck down by the Supreme Court. In 1970 she abolished the privy purses which were given to the princes who had merged their kingdoms in the Union of India. This decision too was struck down. She was keen to rein in the judiciary and introduced a series of Constitutional amendments. These amendments were challenged in court by His Holiness Keshavanand Bharati who was the head of a mutt in Kerala.

At stake was Article 368 which is about the power of Parliament to amend the Constitution. The moot question: Was the power of Parliament to amend the Constitution unlimited? Can Parliament alter, amend or abrogate any part of the Constitution even to the extent of taking away all fundamental rights? A plain reading of Article 368 does not provide for any restrictions on the power of Parliament to amend any part of the Constitution. There is nothing that prevents Parliament from taking away a citizen’s fundamental rights. By the time India entered the 1970s, doubt began to be raised: Is there any inherent limitation on the amending power of Parliament? The Kesavananda Bharati case decided this important issue.

The judgment introduced a novel concept called ‘basic structure’. As scholars of Constitutional history point out, this idea was first broached by Justice Mudholkar nearly a decade before the judgment in the Kesavananda Bharati case. Justice Mudholkar was the first to use the phrase ‘basic structure. Similarly he had referred to a judgment given by the Supreme Court of Pakistan in 1963. The chief justice had declared that the President of Pakistan could not alter the ‘fundamental features’ of the Constitution. Then there was Prof Conrad of University of Heidelberg who, in 1965, advocated the idea of ‘implied limitations’ on the Constitution and further argued that amending powers don’t cover Article 21 or monarchy cannot be introduced by amendment.

The Supreme Court of India took this further and declared in the Kesavananda Bharati case that though Parliament has unlimited power to amend or alter the Constitution, it cannot amend or alter the ‘basic structure’ of the Constitution. The judiciary did not explain the contents of the basic structure. However, one can gather that the basic structure covers features like secularism, universal adult franchise, independent election commission, etc.

The epoch-making judgment created a bulwark against tyranny by the ruling party. Now once again, there is talk about revisiting it. We should be happy that we have the doctrine of Basic Structure which ensures the sanctity of the Constitution.

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