Judiciary And The Basic Structure Theory.

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It was on April 24, 1973, one of the largest bench of the Supreme Court of India till date comprising of thirteen judges laid down the “Basic Structure theory” in the landmark case of Kesavananda Bharti v. State of Kerala[1]. What is ‘Basic Structure’ has not been defined anywhere, but what it means is that the Parliament which has got the power to amend the Constitution under Article 368, cannot amend the Constitution in such a way that the basic foundation gets eradicated.

Dr. B.R. Ambedkar, the chief architect of the Constitution, while delivering his famous speech on November 25, 1949, the penultimate day before the adoption of Constitution gave a caveat saying that “However, good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However, bad a Constitution may be, it may turn out to be good if those who are called to work on it, happen to be a good lot”[2]. The one who have been called to work on the Constitution are the Legislature, the executive and the Judiciary. Certainly the first two who have been called to safeguard it failed miserably and indeed tried many a times to wreak havoc to this Compassionate document. Under these circumstances, the only messiah who came to the rescue of our Constitution was the Judiciary which faced even the critic of exceeding its ‘lakshman rekha’ and got to called as ‘over-activist’ and ‘infallible’.

Pt. Jawaharlal Nehru, the first Prime Minister of India, promised to the nation land reforms on a large scale and the ‘Right to Property’ clause under Articles 19(1)(f) & 31 in the Fundamental Rights chapter was like thorn in the flesh for carrying out the promised reforms, hence the Constitution was amended in 1951 to insert Ninth Schedule, which took away the power of judiciary from declaring any law that has been added in the Ninth Schedule as null and void. This unfettered power of the Parliament to amend the Constitution even got the judicial support till 1967, where in Sankari Prasad Deo v. Union of India[3], when the Constitutional validity of the First Amendment of the Constitution which curtailed the right to property was challenged, the Supreme Court ruled that “the power to amend the Constitution also included the power to amend the fundamental rights[4]”.

This law was followed even in Sajjan Singh v. State of Rajasthan[5], but in Sajjan Singh case, for the first time, doubts were cast on the amending power of the Parliament by Justice M. Hidayatullah and Justice J.R. Mudholakar and for the first time the word ‘basic feature’ was used by Justice Mudholakar.

Later in Golaknath v. State of Punjab[6], the eleven judge Constitution bench by razor thin majority of 6:5 ruled that all the fundamental rights are beyond the scope of amendment by the Parliament. The swift repercussion of the Golaknath case was 24^th and 25^th Amendment Acts, 1971 which stipulated that “Article 13 of the Constitution will not apply to any amendment made under Article 368 and no law giving effect to the Directive principles of State policy shall be deemed to be void on the ground that it takes away rights conferred by Articles 14, 19 or 31 respectively[7]”.

When these draconian amendments were challenged in the Kesavananda Bharti case[8], the Supreme Court overruled Golaknath Case[9] and held that the Constitution including the fundamental rights can be amended under Article 368, but while making such Amendment, care has to be taken by the Parliament that the ‘Basic Structure’ of the Constitution doesn’t get affected. Certain basic features like preamble, supremacy of the constitution, separation of powers, Independence of judiciary, secularism, federalism, etc. were said to constitute the Basic Structure of the Constitution, but a precise meaning of what is this Basic structure was nowhere specified in the case, hence the various components of Basic structure were explained by the judiciary in the later cases.

Even the ‘Basic Structure’ theory would had died its natural death if not for precipitated response from the Parliament which came with the Constitutional (39^th Amendment) Act, 1975, wherein it ousted the Supreme Court from deciding any dispute in regard with the election of President, Vice-President, Prime Minister and Speaker of Lok Sabha. Then an unanimous decision of the Supreme Court in Indira Gandhi v. Raj Narian[10], heldthat “any law made declaring that challenge to any election would not be governed by any election law would sound the death knell of the democratic structure of the Constitution[11]”. Thus in this case, ‘election’ and ‘democratic form of the government’ were held to constitute basic structure of the Constitution.

The Central government was perturbed by the Supreme Court’s pronouncement in the Indira Nehru Gandhi case and came up with one of the draconian provision, Section – 55 under the Constitution (42^nd Amendment) Act, 1976 also called as ‘Mini Constitution’ which restricted all persons to challenge any Amendment made to the Constitution under Article 368. The Superior Court in Minerva Mills Ltd. v. Union of India[12], stuck down clauses 4 & 5 of Article – 368 by observing that “Depriving the courts of the power of judicial review will mean making Fundamental Rights ‘a mere adornment’ as they will be rights without remedies[13]”. In this case, ‘Judicial Review’ was said to form basic structure of the constitution

These two Judicial pronouncements after Kesavananda Bharti case cemented the doctrine of ‘Basic Structure’ theory and same was followed in other future cases like Firstly, in P. Sambamurthy v. State of A.P.[14], where the State government was given power under the proviso to clause 5 of Article 371D to modify or annul a final order of the administrative tribunal before expiry of 3 months from the date of order which was held to violate the basic structure doctrine and Secondly, in Kihoto Hollohan v. Zachilhu[15], Paragraph 7 of the Tenth Schedule of the Constitution (Anti-defection) Act, 1985 which stated that no court shall have any jurisdiction in respect of disqualification of any member under the Tenth Schedule was also stuck down by following the doctrine of basic structure and Thirdly, in L. Chandra Kumar v. Union of India[16], where one of the provision of the Administrative Tribunals Act, 1985 excluded the High Courts from exercising jurisdiction over the matter falling within the jurisdiction of the tribunals established under the Act was held to take away the power of ‘Judicial Review’ a quintessential facet of Basic Structure doctrine and Finally, in the Supreme Court Advocates-on-record Association v. Union of India, popularly called as Fourth Judges case[17], the National Judicial Appointment Commission (NJAC) Act, 2014 which mandated for formation of NJAC Commission for appointment of the judges of the Supreme Court and High courts, was held to interfere with the ‘independence of judiciary’, which in turns tinkers with Basic Structure doctrine.

Besides this, in many other cases also, certain features of Basic structure theory was discussed by the apex court.

German Professor Dietrich Conrad, whose article helped the lead counsel in the case, Nani Palkhivala to get the basic structure theory laid down by the apex court, once remarked that, “in this free trade of constitutional ideas, the Indian Supreme Court has come to play the role of an exporter. This holds true with respect to at least two major innovations introduced by the court, public interest litigation and basic structure doctrine[18]”.

The decision which was delivered by razor thin majority of 7:6 ratio, can be said to be one such decision which made the Indian Constitution, an enduring document and helped the judiciary to expand its activist hand into various fields of governance to ensure justice to the deserved but the Basic structure theory is like parable of the ‘Blind men and an Elephant’.

Baglekar Akash Kumar.

(4^th year, L.L.B (5 YDC), University College of Law, Osmania University)

Email : akashbaglekar@gmail.com

[1] (1973) 4 SCC 225.

[2] Refer to Constituent Assembly Debates, 25^th November, 1949.

[3] AIR 1951 SC 455.

[4] Ibid.

[5] AIR 1965 SC 845.

[6] AIR 1967 SC 1643.

[7] Constitutional 24^th & 25^th Amendment Act, 1971.

[8] Refer Supra note 1.

[9] Refer Supra note 6.