Abstract:

The Basic Structure Doctrine was not enshrined in the Indian Constitution since its inception. Rather, it was evolved through a judgment passed by the Supreme Court of India in the 1973 case of Keshavanand Bharti and Ors. Vs. State of Kerala and Anr. The basic issue in the case was related to the right to property and the fundamental rights to religious freedoms. The 13-judge Bench of the Apex Court in a 7-6 majority upheld the abrogation of the fundamental right to property, but in the process evolved the basic structure doctrine which stated that the Parliament can amend any part of the Indian Constitution provided it does not touch the basic features of the Constitution. The Court enumerated certain features like federalism, judicial review, the rule of law, separation of powers, secularism, freedom and dignity of the individual and the unity and integrity of the country. The Court categorically asserted that this list is not exhaustive. In the 2015 case of NJAC Act, the Apex Court further identified judicial independence as a basic feature of the Constitution. The list would go on increasing in the future also.

However, in the long-term interest of democracy, the system of checks and balances among the different wings of the Constitution must be maintained. But past experience has shown that during the Emergency and its aftermath, a deliberate effort was made to concentrate power in the wings of the executive by misusing an effective majority in the Parliament. This may happen again in the future also by the majoritarian governments to seek their avowed petty interests. Hence, there is a strong need to protect and prolong the Doctrine of Basic Structure for upholding the structure of the Indian Constitution and to maintain the basic freedoms enshrined in the Constitution. This paper tries to explore the various dimensions of the basic structure doctrine and its possible impact on the evolution of nascent Indian democracy.

Introduction

The Doctrine of Basic Structure is a form of judicial review meant to test the legality of any legislation by the courts. The evolution of this doctrine was materialized in the landmark judgment of the Supreme Court of India in the Keshavanand Bharti's case of 1973. In this case, a 13-judge Constitution Bench ruled that the "basic structure " of the Constitution is inviolable and could not be amended by Parliament. According to V.R. Jayadevan, this is a case 'unique in the history of international constitutional law'. The 'basic structure ' doctrine formulated by the Court represented the pinnacle of judicial creativity. This case was filed in the form of a Writ Petition in the Supreme Court by one Keshavanand Bharti who was a monk from Adi Sankaracharya's tradition and headed the Edneer Mutt, a Hindu monastery in Kasargod, Kerala. He challenged the Land Reforms legislation enacted by the communist government of Kerala in 1970 which had affected the Mutt, losing a large chunk of its property. It was argued from the petitioner's side that this action violated his fundamental rights to religion (Article 25), freedom of religious denomination (Article 26), and right to property (Article 31). The case would go on for three years, and the representatives of coal, sugar and other industries adversely affected by land reforms also presented their sides. The Apex Court took almost five months, the longest amount of time since its inception, to decide upon issues central to the interaction between three branches of the government. This Judgment containing nearly 800 pages and about 420,000 words has been aptly named the 'longest appellate decision' of the last century. Apart from its exceptional length, it significantly ascribed to itself the function of preserving the integrity of the Indian Constitution. In this epochal case, the 13-judge Constitution Bench of the Supreme Court in a 7-6 Verdict propounded the Doctrine of Basic Structure for the first time. On land ownership however, the Apex Court upheld the amendment that removed the fundamental right to property. The 13-judge Bench gave 11 separate judgments, and the doctrine was culled out as the majority opinion of the case.

The Background of the Challenged Constitutional Amendments

In this case, the following, the following amendments were challenged:

1. The Twenty-fourth Amendment: This was enacted with an objective to nullify the judgment of Golaknath case. According to it, Constitutional amendments were not 'law' under Article 13, and the Parliament had the power to amend, vary or repeal any provision of the Constitution.
2. The Twenty-fifth Amendment: enacted in 1971, it gave precedence to the directive principles of state policy over the fundamental right to equality, the seven freedoms and property. It also deprived the courts of the power to decide whether a law was actually passed to further the policy laid down in these Articles.
3. The Twenty-ninth Amendment: Enacted in 1972, it added two land reform statutes to the Ninth Schedule of the Constitution, namely The Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35 of 1969) and The Kerala Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of 1971).

Besides these, the Supreme Court had to ponder upon the following issues also:

1. It had to reconsider its verdict given in the earlier cases of Shankari Prasad, Sajjan Singh and Golak Nath.
2. It had to deal with the most critical question regarding the amending power granted to the Parliament under Article 368 and to examine whether this power was unfettered, or where the courts could review amendments?
3. It had to examine the Parliament 's amending power in order to ascertain the Constitutional validity of the amendments.

The Salient Points of the Judgment (Majority View)

1. The Twenty-fourth Constitutional Amendment was valid.
2. The Twenty-fifth Amendment to the Constitution was valid.
3. The Twenty-ninth Constitutional Amendment was valid, except for the clause that outstanding the jurisdiction of the courts.
4. The judgment pronounced in the Golak Nath case, which asserted that fundamental rights could not be taken away or nullified by the Parliament, was overruled.
5. On the Parliament's power to amend the Constitution under Article 368, there were no implied limitations.
6. However, the Court's most significant verdict was made by a majority of 7:6 which proclaimed that although the Parliament had the power to amend any part of the Constitution, it could not be used to alter or destroy the 'basic structure '-or framework-of the Constitution. The renowned jurist Nani Palkhivala, which was a counsel in this case, has aptly described it as such: 'In other words, the Supreme Court held that the expression 'amendment' did not encompass defacing the Constitution such that it lost its identity. That implies that the future Constitutional amendments would have to pass the 'basic structure filter' created by the Supreme Court.

The Concept of Basic Features

The concept of Basic Features is ascribed to be mentioned by the German jurist Professor Dieter Conrad. However, the origins of the basic structure doctrine are found in the post-war German Constitution law, which was amended in the post-Nazi regime, to protect some basic laws. Jurist N.A. Palkhivala took recourse to the writings of Professor Dietrich Conrad in support of the basic structure doctrine while arguing against the government in this case. The Court observed that "Under the Weimar regime, the legislature reigned supreme and legal positivism was brought to an extreme. The re-action after II was characterized by decrease of legislative power matched by an increase of judicial power".

In the judgment itself, there was no unanimity of opinion on what the basic structure was. Each judge prepared his own list which can be enumerated as such:

1. Chief Justice S.M. Sikri:  Supremacy of the Constitution, Republican and Democratic form of government, Secular character of the Constitution, Separation of Powers between the legislature, executive and judiciary, and the Federal Character of the Constitution.
2. Justices J.M. Shelat and A.N. Grover: Added two additional elements to the above-mentioned list, namely, Dignity of the individual (secured by fundamental rights) and the Mandate to build a Welfare State (in the Directive Principles of State Policy) and the Unity and Integrity of the nation.
3. Justices K.S. Hegde and A.K. Mukherjee: Sovereignty of India, Democratic character of India's Polity, Unity of the country, Essential features of the individual freedoms secured to the citizens, and the Mandate to build a Welfare State and an Egalitarian Society.
4. Justice Jagmohan Reddy: Sovereign Democratic Republic, Parliamentary Democracy and the Three Organs of the State.
5. According to Raju Ramachandran, lawyer and jurist, most judges relied upon the Preamble, the Fundamental Rights, and the Directive Principles of State Policy.
6. In the 2015 Supreme Court judgment in the NJAC case, the Court struck down the National Judicial Appointments Commission Act and the related Constitutional Amendments and identified "judicial independence " as a basic feature of the Constitution. The five-judge Bench of the Apex Court struck down the amendment passed by Parliament with an overwhelming majority (with just one member abstaining) by applying the basic structure doctrine.
7. Delivering the 18th Nani Palkhivala Memorial Lecture organized by the Bombay Bar Association in January 2023, the present Chief Justice, D.Y. Chandrachud asserted "The basic structure or the philosophy of our Constitution is premised on Supremacy of the Constitution, The Rule of Law, Separation of Powers, Judicial Review, Secularism, Federalism, Freedom and Dignity of the individual and Unity and Integrity of the nation".

Thus, from the above narrative, it is crystal-clear that the ambit of the basic structure doctrine is not fully expanded. There is further scope for enlargement of the basic features of our Constitution. This task may be completed either by the Parliament itself or the Judiciary through the process of judicial review.

Criticism of the Basic Structure Doctrine

It is pertinent to note here that the basic structure doctrine finds no mention in the language of the Constitution itself, and this is the first and foremost criticism of this doctrine. According to some scholars, it opposes the original intent of the Constitution. It is also averred by some authorities that the link between the Constitutional text and the Basic Structure doctrine is very remote. The doctrine has very little to do with what is written in the Constitution. Besides that, the judgment of this case is so lengthy that it causes uncertainty as to what the eleven opinions collectively means, and what the basic structure actually comprises. As regards basic structure doctrine, each judge's conception depends on his personal preferences. Also, it virtually arms the judges with amending powers. Eminent jurist and Constitutional expert Madhav Khosla has observed that the basic structure doctrine has also been sharply criticized as being counter-majoritarian, and one that causes a democratic imbalance since it gives inordinate power over constitutional amendments to the Supreme Court, an unelected and self-appointed body. However, it was clear from this Judgment that the judiciary was going to wield substantial power over constitutional interpretation which seems to be inconsistent with the traditional democratic process.

In January 2023, a controversy arose out of a comment made by the Vice-president of India, Sri Jagdeep Dhankar, criticizing the Supreme Court again for using the doctrine of basic structure to strike down the constitutional amendment that introduced the National Judicial Appointment Commission Act. He was addressing public event at Jaipur on January 11, the Vice-president asked if the judiciary could put fetters on Parliament's powers to amend the Constitution and frame laws in a democratic nation. Earlier, on December 7, 2022, he, in his maiden speech in the Rajya Sabha, had called the striking down of the NJAC Act a “severe compromise" of Parliamentary Sovereignty and disregard of the "mandate of the people". Ten days after the Vice-presidential address, the Chief Justice of India spoke in the 18th Nani Palkhivala Memorial Lecture, organized by the Bombay Bar Association in which he asserted that the judgment in the Keshavanand Bharti case aids in keeping the soul of the Constitution intact even as judges interpret the text of the Constitution with the changing times. He said, "The basic structure of our Constitution, like a North Star, guides and gives a certain direction to the interpreters and implementers of the Constitution when the path ahead is convoluted". He added that the basic structure judgment is a "rare success story " which was emulated by India's neighbouring countries such as Nepal, Bangladesh, and Pakistan. "Different formulations of Basic Structure doctrine have now emerged in South Korea, Japan, certain Latin American and African countries. The migration, integration, and reformation of the doctrine of basic structure in constitutional democracies across continents is a rare success story of diffusion of legal ideas in our interconnected world", he said. Similarly, in his defence of the basic structure doctrine, Dr. Sudhir Krishnaswamy, the Vice Chancellor of the National Law School of India University, Bangalore, has stated that the doctrine 'rests on a sound structural interpretation of the Constitution'. In his book, Democracy and Constitutionalism in India, he notes that 'even some skeptics of the doctrine turned around over the years'.

Conclusion

Thus, from the above discussion, it is obvious that the doctrine of basic structure is now a part and parcel of our Constitution, so long as it is not reversed by the future Supreme Court judgment. Many eyebrows were raised at the time of the verdict. The practice is still continuing. But at the same time, it is true that this doctrine has secured the foundations of our Constitutional framework. In any democratic system, everything goes well if the people are aware and the opposition is strong. As soon as the majoritarian governments come to power, the possibility of altering the very structure of the Constitution looms in the air. The powerful heads of the governments become successful in making the required changes with the help of a brute majority. In such situations, the fundamental rights of the citizens become the first casualty. Our Supreme Court is invested with the power of judicial review which can successfully be employed to put a check on such tendencies. In our country also, there are instances when the basic rights of the citizens were suspended for a definite period. In the absence of such doctrine as of basic structure, the repetition of such incidents cannot be ruled out. Chief Justice Chandrachud has recently described this doctrine of basic structure as North Star to guide our constitutional ethos. For the last fifty years, this doctrine has served the country in good stead. It needs to be further strengthened by Parliament. At least, there should not be any cause of contention between the executive and the judiciary. The issue must be resolved harmoniously by both the stakeholders. In a democratic society, the people's voice is most important, and every endeavour should be made not to stifle the voice and basic freedoms of the people. It should always be kept in mind that the basic structure of the Constitution are the founding principles of the Constitution which should not be diluted at any cost. 

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