Former Chief Justice of India Ranjan Gogoi’s latest remark in Parliament has ignited important discussions within the legal and political spheres. “The doctrine of the basic structure of the Constitution has a debatable, very debatable jurisprudential basis,” said Gogoi.
While I hold many disagreements with Gogoi on other issues, this is one of the rare areas where our views converge. (Disclosure: One of us, Nitin Meshram, argued before the Supreme Court challenging the Rajya Sabha nomination of Gogoi).
We would argue that the much-debated “basic structure doctrine” of the Indian Constitution was a judicial coup against Parliament and the executive. The power elites subverted pro-people policies through this doctrine, at a time when democracy was trickling down to more and more subaltern groups. The introduction of the doctrine marked a significant departure from the constitutional principles enshrined in the original text.
It is the time to debate the scope and legitimacy of the doctrine.
Also read: Justice Gogoi finally spoke in Parliament. But he wasn’t the wise, knowledgeable elder
The origin and social context
This doctrine posits that certain fundamental principles and essential features of the Constitution are beyond the reach of amendment by Parliament. The controversial, yet landmark, judgment of the Supreme Court in the Kesavananda Bharati case (1973) evolved the “Basic Structure Doctrine” (BSD). Swami Kesavananda Bharati, leader of Edneer Mutt in Kerala, challenged the Kerala government’s Land Reform Act. That Act aimed to restrict the management of his property, allegedly violating his fundamental rights under Articles 25, 26, 14, 19(1)(f), and 31 of the Constitution.
The Supreme Court delivered a verdict, ruling that while Parliament possessed the authority to amend the Constitution, it couldn’t alter its basic structure. The court decided not to define or list what the basic structure is, keeping it open and fluid. So theoretically, anything and everything can be called the basic structure.
The Kesavananda Bharati case (1973) emerged against the backdrop of significant political and socio-economic developments in India during the early 1970s. The country was led by Prime Minister Indira Gandhi, who was implementing a series of progressive measures aimed at bringing about structural changes and addressing inequalities in society. The government aimed for agrarian reform, bank nationalisation, and ending the royal privy purse.
Bank nationalisation and abolition of privy purse decisions were struck down by the Supreme Court on the grounds that they infringed upon fundamental rights. The government was compelled to bring constitutional amendments to negate the court rulings.
If we observe the social and political life of the early ’70s, we can notice that the nation was going through a democratic upsurge. The subalterns were demanding that the promises of the freedom struggle must be fulfilled. Middle and lower castes were asking for their share in the national wealth and prosperity. So the government embarked upon the idea of distributive justice and started taking steps for social and economic justice.
Also read: BJP called CWG a colonial legacy in 2010. Now Gujarat is bidding to host the 2026 game
Parliament supreme
In any case, Parliament, which represents the de facto will of the people of India, has the overriding mandate to decide upon the present and future of the country. This is often referred to as the power to define the destiny of the country. In every democracy, including England, where parliament is elected by the people through the adult franchise, it is the ultimate sovereign of the country. Parliament has the power to regulate the affairs of the head of state, abolish the head of state, impeach the president, and judges, overthrow the elected government, oust the prime minister, and override the judgments passed by the Supreme Court. There is nothing that parliament cannot do in a democracy.
This also applies to India. India has a separation of powers, as outlined in Articles 245 and 246 of the Constitution, which establishes three lists in the Seventh Schedule. India also has Article 254 and Articles 356 to 360, which give Parliament the power to amend the Constitution in Article 368. Therefore, reading down the powers of Parliament under Article 368 is beyond the scope of jurisdiction of the Supreme Court.
Also, an amendment carried out by Parliament by way of addition, variation, or repeal of any provision of the Constitution in accordance with the procedure laid down in Article 368 of the Constitution forms part of the Constitution after the assent of the President. Also, parliamentary proceedings cannot be called into question in any court, including the Supreme Court, due to an express prohibition of Article 122 of the Constitution. Therefore, due to said prohibition, the Supreme Court cannot prevent Parliament from considering and passing any amendment, nor does it have the power to test the amendment which forms part of the Constitution after the Presidential assent.
The supreme court can test laws under Article 13 to confirm that they are not infringing upon the fundamental rights guaranteed by Part III of the Constitution. But an amendment carried out in the Constitution by Parliament is not a law under Article 13 of the Constitution and therefore the same cannot be tested by the Supreme Court. Anything otherwise amounts to an exercise of jurisdiction that has not been given to it by the Constitution. This would make the Supreme Court a ghost constituent assembly and violate the separation of powers under the Constitution.
Also, such a drastic power to prevent Parliament from amending the Constitution cannot be said to lie with the Supreme Court as the judges are the delegates of delegates. The people who have given the power to amend the Constitution to Parliament cannot be said to have given the power to review that power to the Supreme Court when there is no mention of it in the Constitution. Unfortunately, the Supreme Court illegitimately read the Basic Structure Doctrine within the Constitution as a limit upon the amending powers of Parliament.
The ‘delegates of the delegates’ cannot control the real delegates beyond the authorisation of the Constitution. Additionally, these 5 or 13 delegates of delegates (individual judges) who are unpopularly called “wise men” are selected through an opaque and extra-Constitutional system known as the collegium system. Regardless of the appointment process, they do not represent the will of the people and also, they cannot go beyond the Constitution.
The Basic Structure Doctrine is being used in many ways to undermine the authority of Parliament. To defend the collegium system, the Supreme Court invoked its invention, the basic structure. In the judgment related to the NJAC (National Judicial Appointments Commission) bill, the term “basic structure” was used 440 times by the Supreme Court.
These are our arguments against the basic structure doctrine:
Not in the Constitution: A big issue with the basic structure doctrine is that it’s not clearly mentioned in our Constitution. The Constitution doesn’t say there are certain parts that can’t be changed.
Judges overruling Parliament: The basic structure idea lets judges cancel laws passed by Parliament if they think those laws don’t fit with the Constitution’s basic structure. As judges are not elected, should they have this much say over laws?
Messing with separation of powers: The basic structure idea clashes with how our government’s power is separated. It gives the courts the power to check and maybe stop changes made by the lawmakers.
Interpretation subjectivity: The essential structure thing gets understood differently by different judges. This means they can decide different things based on their own thoughts, and this might not be fair.
Not clear what’s ‘basic’: The basic structure idea is unclear. We don’t have a clear definition of what exactly falls under it. This means judges have to decide, and that can make things uncertain.
Too much power to the judges: There’s a case where judges might have gone too far, like with the NJAC bill. Even though Parliament passed it and most states agreed, the basic structure idea was used to challenge it, showing judges might have more power than they should.
Nitin Meshram practices law in the Supreme Court and various High Courts. He tweets at @meshramnitin_. Views are personal.
Dilip Mandal is the former managing editor of India Today Hindi Magazine, and has authored books on media and sociology. He tweets @Profdilipmandal. Views are personal.
(Edited by Anurag Chaubey)