Whither the basic structure?

Kesavananda Bharati, the head of Edneer mutt in Kasaragod, who passed away on Monday, left a major imprint on India’s constitutional history, as few others did. It was a case that he filed challenging the acquisition of the mutt property by the Kerala government under the land reforms law that led to the enunciation of the idea of the basic structure of the Constitution by the Supreme Court in 1973. Bharati lost his personal battle as the court rejected his claim to the mutt property, which he said was inalienable under the fundamental rights relating to property, profession of religion and management of religious property. But he won an unintended war for protection of the principles at the heart of the Constitution. A 13-judge bench sat for 68 days to pronounce the judgement which circumscribed Parliament’s power to amend the Constitution.

The basic structure doctrine has since guided constitutional thought and decisions by courts on a number of issues. It has given a sense of stability and reassurance to the polity and the republic and has been used as the standard to test the validity of amendments to the Constitution and of laws enacted by the legislature. Ironically, the court which conceived the idea did not define the basic structure. There were disagreements among the judges about what constituted it. The court has also not clarified it since then. But it is accepted that parliamentary democracy, fundamental rights, separation of powers, secularism and federalism are all essential features of the Constitution. It has been said that the lack of a definition has introduced an element of subjectivity into the interpretation. This is not correct because it is not a single judge but a bench of many who would usually make an important interpretation. But a bench of one generation can have a different view from a bench of another generation. There is also a view that the judgement tilts the balance in favour of the judiciary in relation to other organs of State.

But a more important question is whether the idea of the inviolability of the basic structure has prevented the abuse of the Constitution. It was just two years after the Kesavananda Bharati case judgement that the fundamental rights of citizens were suspended during the Emergency, and the courts could not do anything about it. Those rights are under pressure even now and there have been legislations, decisions and actions by the government that are at odds with what is considered to be the basic structure. It has given rise to apprehension whether the basic structure can be undermined even without amending the Constitution.