Lecture by Soli J. Sorabjee

EVOLUTION OF THE BASIC STRUCTURE DOCTRINE: ITS IMPLICATIONS AND IMPACT ON CONSTITUTIONAL AMENDMENTS Soli J. Sorabjee Former Attorney General for India [Lecture at Oslo University – Norway – 06th October 2008] Introductory India has a written Constitution. The framing of India’s Constitution in the Constituent Assembly was spread over a period of two years, 11 months and seventeen days. It is one of the longest Constitutions in the world. No Constitution can remain static. It must respond to new challenges and take account of unanticipated and unforeseen events which were not within the contemplation of the framers of the Constitution. Hence a provision for amendment of the Constitution. Article 368 of the Indian Constitution provides for its amendment. It empowers the Parliament in exercise of its constituent power to amend by way of addition, alteration, variation or repeal any provision of the Constitution in accordance with the procedure prescribed in this article. The procedure is that amendment of the constitution can be effected only by way of introduction of a Bill for that purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting. If the constitutional amendment seeks to make changes in any article of the Constitution which shall have an impact on the States the amendment is required to be ratified by the Legislatures of not less than one-half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent. Thereafter the Bill is to be presented to the President “who shall give his assent to the Bill”. Thereupon the Constitution stands amended. On its plain terms article 368 is plenary and is not subject to any limitations or exceptions. Constituent Assembly debates indicate that the founding fathers did not envisage any limitation on the amending power. Part III of the Indian Constitution guarantees certain fundamental rights. Article 13[2] of the Constitution inter alia provides that any law passed in contravention of Part III of the Constitution, that is, fundamental rights, shall be void. After the Constitution was enacted, several agrarian and land reforms legislations were passed. These were challenged in State High Courts on the ground of violation of fundamental rights. The Patna High Court struck down certain land reform legislation as being violative of fundamental rights. Similar legislation was upheld by the Allahabad and Nagpur High Courts and appeals from these judgments were pending in the Supreme Court. The Union Government, with a view to put an end to all this litigation and to remedy what they considered to be certain defects brought to light in the working of the Constitution, brought forward a Bill to amend the Constitution, and which was passed in Parliament by the requisite majority as the Constitution [First Amendment] Act, 1951. By this amendment Article 31-B and Ninth Schedule were enacted in the Constitution. The intent and effect was that any legislation placed in the Ninth Schedule could not be challenged on the ground that it was violative of any fundamental right. It is interesting to note that only thirteen Acts, all dealing with agrarian reforms, were initially placed in the Ninth Schedule. The Constitution [First Amendment] Act was promptly challenged on the ground that as it gave immunity to legislations that were violative of fundamental rights the Amendment was void because of Article 13 of the Constitution which provided that any law which contravened a fundamental right is void. Judgments of the Supreme Court of India regarding power of amendment The Supreme Court in its judgment in Shankari Prasad, delivered on 5th October 1951, rejected this contention and unanimously upheld the constitutionality of the First Amendment. According to the Supreme Court ‘law’ in Article 13 covered laws made in exercise of ordinary legislative power but did not include constitutional amendments made in exercise of constituent power. The Court further noted that the power of amendment was without any exception whatever. Thereafter the Constitution was further amended by the Constitution [Seventeenth Amendment] Act 1964 whereby several new Acts were added to the Ninth Schedule. This amendment was challenged in the Supreme Court before a Constitution Bench of five judges. All the five Judges upheld the constitutionality of the Seventeenth Amendment and were agreed in their conclusion that the writ petitions challenging the Amendment be dismissed. However, serious reservations were expressed by two judges. Justice Hidayatullah observed that “I would require stronger reasons than those given in Sankari Prasad’s case to make me accept the view that fundamental rights were not really fundamental but were intended to be within the powers of amendment in common with the other parts of the Constitution and without the concurrence of the States.” The other Judge, Justice Mudholkar expressed his doubt namely “whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of Art. 368?” He observed that “doubts which have assailed me regarding a question of paramount importance to the citizens of our country: to know whether the basic features of the Constitution under which we live and to which we owe allegiance are to endure for all time – or at least for the foreseeable future – or whether they are no more enduring than the implemental and subordinate provisions of the Constitution.” It is noteworthy that the concept of basic features of the Constitution first finds a place in the doubting observations of Justice Mudholkar. The Constitution Seventeenth Amendment was again challenged in the Supreme Court before a Bench of eleven judges in the case of Golak Nath. A sharply divided Court, six to five, on 27th February 1967 held that constitutional amendment is a ‘law’ within the meaning of Article 13 of the Constitution and, therefore, if it takes away or abridges fundamental rights guaranteed by Part III, it is void. The majority further declared that “Parliament has no power from the date of this decision to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights enshrined therein.” However in view of the fact that the Constitution First Amendment and Seventeenth Amendment Acts were held valid on the basis of earlier decisions of the court, the same were not declared unconstitutional. The decision in Golak Nath generated a furious forensic and political controversy. It led inter alia to the enactment of the Constitution Twenty-Fourth Amendment Act adding Article 13(4) which provided that Article 13 shall not apply to any amendment of the Constitution under Article 368. It also amended Article 368(1) by adding the word “in exercise of its constituent powers” [25th amendment (1971)]. The Constitution Twenty-Fourth Amendment Act along with Constitution 25th and 29th amendments were challenged. In view of the grave importance of the issue a larger Bench of 13 Judges was constituted to consider the correctness of the decision in Golak Nath which necessarily involved the question whether a constitutional amendment could be struck down as violative of fundamental rights. Emergence of the Basic Structure Doctrine Before I proceed further it is necessary to understand and appreciate the background and historical events preceding the decision of the Supreme Court in Kesavananda Bharati’s case. The view expressed by the Supreme Court in Sankari Prasad in 1951 was that the exercise of constituent power of amendment under Article 368 is “so hedged about with restrictions that its exercise must be difficult and rare”. This was sadly belied by subsequent actual experience. Parliament’s appetite had increased voraciously and thanks to the absolute majority enjoyed by the ruling party in Parliament several acts some of which had no relation with agrarian or socio-economic reforms were indiscriminately placed in the Ninth Schedule. There were extensive arguments in Kesavananda Bharati’s case which intermittently lasted for nearly five months. On 24th April 1973 the Supreme Court pronounced its historic judgment. There was sharp cleavage of opinions. Five judges ruled that the power of amendment was subject to implied limitations and consequently fundamental rights could not be abrogated under the guise of amendment of the Constitution. The majority of six judges, including Justice Khanna, rejected the argument of implied limitation. However Justice Khanna whilst holding that “the word ‘law’ in Article 13(2) does not include amendment of the Constitution” nonetheless ruled that “the power of amendment under Article 368 does not include power to abrogate the Constitution nor does it include the power to alter the basic structure or framework of the Constitution. Subject to the retention of the basic structure or framework of the Constitution, the power of amendment is plenary and includes within itself the power to amend the various articles of the Constitution, including those relating to fundamental rights”. In view of Justice Khanna’s decision it can be said that the majority view in Kesavananda Bharati is that “Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution”. Thus emerged the unique doctrine of the basic structure of the Constitution as a result of which Parliament’s power of amending the Constitution is not absolute. Application of the Basic Structure Doctrine The next decision in the evolution of the doctrine of basic structure is the landmark decision of the Supreme Court in Indira Nehru Gandhi vs. Raj Narain pronounced on 07th November 1975. Again understanding of the historical background and facts is necessary. The election of Prime Minister Indira Gandhi was invalidated by the Allahabad High Court. An appeal was preferred by Mrs. Gandhi to the Supreme Court against the judgment of the High Court. Pending the appeal the Thirty-ninth Constitution Amendment Act was enacted which introduced two new Articles in the Constitution and put three Acts in the Ninth Schedule. In brief the effect was to deprive the courts of their jurisdiction to try election petitions in which the election of the Prime Minister or the Speaker to the Parliament is challenged, and further to declare Indira Gandhi’s election valid notwithstanding any judgment. It was further ordained that any appeal or cross appeal pending before the Supreme Court shall be disposed of on the assumption that the judgment under appeal is void, that the findings contained in the judgment never had any existence in the eye of law and that the election declared void by the High Court judgment shall continue to be valid in all respects. In retrospect it is incredible that such an amendment could be passed by Parliament in a democratic country like India. But remember that this Amendment was passed during the infamous June 1975 Emergency foisted on the country by Mrs. Gandhi’s government ruling at the Centre. It is interesting that some of the judges who had rejected the contention in the Kesavananda Bharati case that Parliament may amend the Constitution in an extravagant manner as ill-founded and based on mere apprehension had sobering thoughts in view of the enormity of the impact and implications of the Thirty-ninth Constitution Amendment Act. Clause 4 of Article 329-A inserted by Section 4 of Thirty-ninth Constitution Amendment Act 1975 was struck down unanimously on the ground that it was violative either of the basic feature of the Rule of Law or of free and fair elections, or was against democracy, or was an outright negation of equality. Consequently clause 4 of Article 329-A violated the essential basic features of the Constitution and was therefore declared unconstitutional. Another constitutional amendment namely Section 4 and 55 of the Forty-Second Constitution amendment was struck down on 09th May 1980 by the Supreme Court in the case of Minerva Mills as unconstitutional on the ground that it violated the essential feature of judicial review and thus damaged the basic structure of the Constitution. Subsequent decisions of the Supreme Court have struck down or upheld constitutional amendments on the touchstone of the basic structure doctrine which has become an integral part of Indian constitutional jurisprudence. Incidentally it may be noted that the doctrine of basic structure of the Constitution has been adopted by the Supreme Court of Bangladesh in 1989 in the case of Anwar Hossain Chowdhury vs. Bangladesh. In that case the Supreme Court held that the Constitution Eighth Amendment destroyed one of the essential features of the Constitution, namely the unity and independence of the Supreme Court (High Court Division), and thereby impaired the basic structure of the Constitution and was declared unconstitutional. Further exposition of the Basic Structure Doctrine The 34th Amendment and 66th Amendment to the Constitution inserted two acts in 9th Schedule in their entirety. These insertions were challenged before five Judges Bench on the ground that portions, which were struck down by courts could not be validly inserted in the 9th Schedule. By an order passed on 14th September 1999 a Constitution Bench of Supreme Court referred the matter to a larger bench of nine Judges. Consequently a Bench of nine judges was constituted. The nine judge bench in the case of I.R. Coelho vs. State of Tamil Nadu delivered an unanimous judgment on 11th January 2007. The Court ruled that “Parliament has power to amend the provisions of Part III so as to abridge or take away fundamental rights, but that power is subject to the limitation of basic structure doctrine. Whether the impact of such amendment results in violation of basic structure has to be examined with reference to each individual case”. The Court further observed that “since the basic structure of the Constitution includes some of the fundamental rights, any law granted Ninth Schedule protection deserves to be tested against these principles. If the law infringes the essence of any of the fundamental rights or any other aspect of the basic structure then it will be struck down. The extent of abrogation and limit of abridgment shall have to be examined in each case”. It concluded that after 24th April 1973, the date of the decision in Kesavananda Bharati, laws placed in the Ninth Schedule will not enjoy blanket immunity but the court will examine “the nature and extent of infraction of a fundamental right by a statute, sought to be constitutionally protected, and on the touchstone of the basic structure doctrine as reflected in Article 21 read with Article 14 and Article 19 by application of the ‘essence of the right’ test”. With regard to a law judicially pronounced to be violative of fundamental rights and which is subsequently inserted in the Ninth Schedule after the 24th April 1973, the Court ruled that “such a violation/infraction shall be open to challenge on the ground that it destroys or damages the basic structure as indicated in Article 21 read with Article 14, Article 19 and the principles underlying thereunder” [emphasis added]. The judgment in I.R. Coelho vigorously reaffirms the doctrine of basic structure. Indeed it has gone further and held that a constitutional amendment which entails violation of any fundamental rights which the Court regards as forming part of the basic structure of the Constitution then the same can be struck down depending upon its impact and consequences. The judgment clearly imposes further limitations on the constituent power of Parliament with respect to the principles underlying certain fundamental rights. The judgment in Coelho has in effect restored the decision in Golak Nath regarding non-amendability of the Constitution on account of infraction of fundamental rights, contrary to the judgment in Kesavananda Bharati’s case. With the utmost respect the judgment is not conducive to clarity. It has introduced nebulous concepts like ‘the essence of the rights’ test. Besides apart from the express terms of Articles 21, 14 and 19, what are the ‘the principles underlying thereunder’? One does not have to be a prophet to visualize further litigation to explain the Coelho judgment which is sure to add to the prevailing confusion. Appraisal of the basic structure doctrine The most formidable criticism of the judicially evolved doctrine of basic structure is that the Court has acted as a super legislature and has placed on Parliament’s power to amend the Constitution in Article 368 limitations which are not found there and which were not within the contemplation of the founding fathers of the Constitution. Unlike certain Constitutions like the Japanese and German Constitutions which have express provisions that certain articles of the Constitution will not be amended there are no such exceptions in the amending conferred by Article 368. Another criticism is that there is no certainty or unanimity about what constitutes the essential or basic features of the Constitution. At present what emerges from the various judgments of the Supreme Court is that the essential features which form part of basic structure of the Constitution are Rule of Law, judicial review, democracy, equality, secularism and federalism. It is a moot point whether a change of the present parliamentary system of democracy based upon the Westminster model into the US Presidential system would amount to abrogating an essential feature of the Constitution. No doubt there is force in these criticisms. The decision in Kesavananda Bharati may not be justifiable on sound juristic basis. But remember that every country has to work out its constitutional salvation taking into account its peculiar problems and specific needs. The Constitution First Amendment Act inserted only 13 Acts which dealt with agrarian and economic reforms in the 9th Schedule. In course of time that number swelled to 284 which included amending Acts. Let us not forget that thanks to the basic structure doctrine, no party having absolute majority in either House of Parliament can effect a constitutional amendment which would make India a theocratic State by providing that members of certain communities or religion alone can hold the office of President, Vice-President, Prime Minister and the Chief Justice of India. Thanks to the basic structure doctrine provisions for free and fair elections cannot be repealed from the Constitution, nor can the Constitution be amended to the effect that elections would take place if and when Parliament determines instead of every five years and thus make a mockery of democracy. Thanks to the basic structure doctrine the judiciary cannot be deprived of the power of judicial review nor can the rule of law be abrogated. Again thanks to this doctrine, federalism cannot be obliterated and States made vassals of the Centre. In the Indian context and experience these are tangible and substantial gains resulting from the basic structure doctrine and a bulwark against further erosion of basic fundamental rights.

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