Too basic to be discarded

In his maiden speech in the Rajya Sabha on August 7, 2023, former Chief Justice of India Ranjan Gogoi, who was nominated to the House by the Modi government in the eminent persons category soon after retirement, said that the basic structure doctrine, which limits parliament’s power to amend the Constitution, has a “debatable jurisprudential basis”, basing it on his reading a book by former Solicitor-General of India Tehmtan Andhyarujina (who was a junior of the legendary constitutional scholar H M Seervai, who appeared against Nani Palkhivala) on the Kesavananda Bharati case.

Gogoi’s comments were criticised by the Opposition, who accused him of undermining the basic structure of the Constitution, which is “dangerous” and “unconstitutional”. The government, however, defended Gogoi’s comments, saying that he was entitled to his opinion.

Remember, Vice President and Rajya Sabha Chairman Jagdeep Dhankhar, too, was critical of the basic structure doctrine in his controversial exposition on it. Dhankhar argued that the doctrine is undemocratic and gives too much power to the judiciary. He had also said that it is not clear what the basic structure of the Constitution actually is, and that the Supreme Court has used the doctrine to strike down laws that it does not agree with.

And newspaper columns have started to appear, too, on this issue. What’s afoot? Do not forget that Indira Gandhi imposed A N Ray as Chief Justice of India when CJI S M Sikri retired on April 23,1973 (the date of the Kesavananda Bharati judgement). CJI Ray sought to oblige her by attempting to “review” the basic structure doctrine. But it was aborted, thanks to Nani Palkhivala’s “forensic brilliance” as Justice V R Krishna Iyer said. A majority of the 13-judge bench constituted to review the doctrine was “startled” as to who had even sought the review. CJI Ray dissolved that bench almost as soon as he had constituted it! Now, here once again are the efforts being made to discredit the basic structure doctrine and do away with it. India should be wary of these efforts.

The Kesavananda Bharati case, also known as the Fundamental Rights case, was a landmark decision of the Supreme Court of India that outlined the basic structure doctrine. The case was filed by a Hindu monk, Kesavananda Bharati, challenging the constitutional validity of the 24th and 25th amendments to the Constitution. These amendments had been enacted by parliament to nullify a series of Supreme Court judgements that had struck down land reform laws passed by parliament on the ground that they violated fundamental rights.

The Supreme Court, in a 7-6 decision, held that parliament had the power to amend any part of the Constitution, but it could not amend its basic structure. The court identified the following, among others, as the basic features of the Constitution: (i) The sovereignty of India; (ii) The republican and democratic form of government; (iii) The separation of powers; (iv) The federal structure; (v) The fundamental rights; (vi) The independence of the judiciary; (vii) The unity and integrity of the nation.

The court held that these basic features could not be amended by parliament, even if it was done by a unanimous vote of all the members of parliament. The court also held that the power of judicial review was an integral part of the basic structure of the Constitution, and that parliament could not take away this power by amending the Constitution.

It was the Nani Palkhivala-Soli Sorabjee duo that “curated and crafted the cunning doctrine”, as a legal scholar put it, that “saved the day for India from possible depredations”.

How did they hit upon this idea?

The German Basic Law (Grundgesetz) contains a provision that limits the power of amendment. Article 79(3) of the Basic Law states that no amendment may “affect the basic principles of the order of the free democratic basic state.” This provision is similar to the basic structure doctrine in that it protects certain essential features of the constitution from being amended.

Professor Dietrich Conrad, a German legal scholar, played a key role in the development of the basic structure doctrine in India. Conrad argued that the Indian Constitution contained certain essential features that could not be amended even by a supermajority vote of the legislature. He drew inspiration from the German Basic Law, which also contains a provision that limits the power of amendment.

Why is this government suddenly interested in raking up the basic structure issue? There appears to be a concerted effort. The late Arun Jaitley had famously described the Supreme Court’s rejection of the National Judicial Appointments Commission Act in 2014 as “perpetrated by an unelected tyranny”. And it was an aspect of the basic structure doctrine – independence of the judiciary -- that had upset the Modi government’s plan to seize back a domain that had been lost to the Supreme Court Collegium.  

Yes, the Supreme Court may not have explained and expounded on the basic structure doctrine or zeroed in on what the ‘essential features’ are with mathematical precision. But the fact of the matter is, it is neither possible nor wise to do so. The Constitution is a dynamic,  evolving creature. It is not cast in stone. And that’s the case even in the US, where ‘Originalists’ abound.

Parliament is supreme in the ‘making of law’ (Article 245). Yet, our founding fathers gave the constitutional courts the power of judicial review (Article 13). After the experience in the ADM Jabalpur case (right to life), losing our fundamental rights during the Emergency, we cannot ignore this renewed attempt on the basic structure doctrine. It is too sacrosanct to meddle with. The Kesavananda Bharati judgement has stood the test of time for 50 years, and India is better of, not worse, for it. It cannot be allowed to be diluted or done away with, as has happened to the Roe v. Wade (also of 1973 vintage) judgement in the US.  

We, the People, need to be vigilant on the basic structure doctrine!

(The writer is a practicing advocate in the Madras High Court)