For almost four decades now, the basic structure doctrine has come to be recognized as the bedrock of Indian Constitutional philosophy. Propounded in the times of a great tussle between the parliament and the judiciary over the guardianship and final authority of the constitution, it sought to impose indirect limitations on parliament’s amending power. In 1973, a bench of 13 judges, the largest ever to be constituted (if we exclude another 13 judges bench constituted by Chief Justice Ray to review this doctrine, hearings for which lasted only for two days, post which it got dissolved), by a slim majority of 7:6 held that parliament had a limited power to amend the constitution, and under that limited power it could not amend the constitution to the extent that its “basic features” are destroyed . What constituted the basic structure was left to the wisdom of the judiciary, to be decided from time to time, on a case to case basis (The question that it raises is whether that, which is basic to the constitution must be decided by the body framing the constitution, or the body which is provided for in the constitution, therefore subservient to it). The basic structure, resulting from an originalist interpretation, can be defined as a set of “supra-constitutional principles” which form the essence of the Indian constitution, any changes to which, would lead to a radical departure from what was envisioned by the Constituent Assembly for its people.
The Keshavananda verdict served two purposes: firstly, it declared the most basic values of our constitution (which the parliament did not have the authority to alter), leaving room for additions in the future; secondly, and more importantly, it widened the powers of the apex court to exercise a constitutional review of amendments, and in case the court found it violative of the basic structure, it had the power to strike down such amendments as unconstitutional. Scholars like Jeremy Waldron argue that the power of judicial review is “democratically and politically illegitimate” as it vests the final authority in the hands of an unelected few, subverting the entire democratic procedure. Even though the constitution expressly provides for the power of judicial review of legislations under Article 13(2), the power to judicially review constitutional amendments is a self-evolved doctrine, which has led many people to criticise it as “judicial re-writing of the constitution.”
What the fundamental rights are to ordinary legislations, the basic structure is to constitutional amendments, except that it continues to be undefined, giving an opportunity to the judiciary to entrench itself. Out of 101 constitutional amendments made till date, 5 have been struck down on the grounds of violation of the basic structure, which, pertained to judicial powers and independence. In the Keshavnanda case, the 25th Constitutional Amendment was struck down in so far as restrictions were imposed on the power of judicial review. In the Raj Narain case, the 39th Constitutional Amendment was struck down, which placed fetters on the power of judicial review. The Minerva Mills case struck down the 42nd Constitutional Amendment, in so far as the power of judicial review was limited, and DPSPs given precedence over the Fundamental Rights. In the Kihoto Hollohan case, the 52nd Constitutional Amendment was struck down, which sought to limit the Supreme Court’s jurisdiction in respect of a matter connected with the disqualification of a member of a house. Finally, in the NJAC case, the 99th Constitutional Amendment was struck down on the grounds that Article 124A affected the primacy of the judiciary in matters of judicial appointments which violated the basic structure of the constitution. (Although, the basic structure doctrine has been invoked in scores of other cases, but the only time it was relied on to strike down amendments was in the above 5 cases.)
In order to prevent an abuse of this doctrine, many scholars have suggested that the parliament, by way of an amendment, should itself declare what the basic structure constitutes,making it an explicit form of un-amendability, thereby preventing the judiciary from determining the basic structure and restricting its role to review amendments on those well-defined parameters. That would also give democratic legitimacy to this doctrine, although limited, as the competence to limit the amending power should come from the primary constituent authority. While such a measure would restore the fine balance of separation of powers envisaged by the constitution, it raises further doubts as to the constitutional review of such an amendment, resulting in its striking down, something which was done by the SC in the Minerva Mills case by invalidating the 42nd constitutional amendment in so far as it prevented an amendment from being called into question before any court of law on any grounds. By adopting such a measure though, the legislature will also get an opportunity to assert its understanding of the constitution, what Mark Tushnet defines as non-judicial review.
Although the author does believe that it was the basic structure doctrine which saved the Indian constitution from losing its identity, but the way it has come to be used by the judiciary in striking down amendments when there is scope for reading in to make the impugned amendment complaint to the basic structure raises doubts as to whether the basic structure doctrine has been mis-utilized by the judiciary to further its own exclusivity and authority. Further, when the judiciary imposes limitations on the power of parliament, it elevates itself to a superior position, effectively defining the ambit of authority exercised by other organs which Jeremy Waldron compares to the Hobbes’ sovereign[1] who is not bound by any law but only prescribes the limits for other organs.
Is the basic structure truly un-amendable?
With the advent of the principle of a limited governmental power imposed through constitutional mechanisms, scholars have constantly tried to define the amending power of the legislature. If it is interpreted as ordinary law making power, then the legislative body would have the absolute power to amend the constitution, whereas, if it’s exercised under constituent powers that would imply that only a constituent assembly once re-convened could make alterations to the constitution. Today it has been agreed upon by scholars that amending power is neither ordinary law making power nor constituent power but lies somewhere in the middle, something called as secondary or inferior constituent powers, hence the limited power to amend.
The argument that Bruce Ackerman advances is that certain overarching principles forming the edifice of the constitution were envisioned by a “mobilized citizenry” or “public citizens” at the moment of constitutional founding to be given permanence hence not susceptible to corruption by mere electoral victors who aim governance and not constitutional establishment. The question that arises here is, can a citizenry be mobilized to such an extent so as to call for a popular vote to amend the constitution thereby not subscribing to the limited amending power? In other words, do the mechanism of referendums provide the legitimate “higher law making track” to make radical changes to the constitution, as seen in the Turkish Constitutional vote of 2017?
Theoretically, since the constituent power inheres in the people, it must follow that a radical amendment, even to the extent of altering the basic principles, can be made by way of a popular vote. It has been observed by the Irish courts that, “No organ of the State, including this Court, is competent to review or nullify a decision of the people … The will of the people as expressed in a referendum providing for the amendment of the Constitution is sacrosanct and if freely given, cannot be interfered with. The decision is theirs and theirs alone.”[2] Practically, that might not be a possibility in view of the vast powers exercised by the Supreme Court of India. Further, till now there has been no direct exercise of power by the Indian people. Even the Constituent Assembly was indirectly elected. What is noteworthy here is that referendum provides a way to express the sovereign will of the people which in itself holds a foundational value, thereby coming in direct conflict with the power of judicial review, if exercised to invalidate an amendment by way of a popular vote.
With the rise in the number of states imposing limitations on the amending power, explicit or implicit, Upendra Baxi’s words become truly prophetic, his remark that the basic structure doctrine would go on to become the future constitution.
References
[1] Jeremy Waldron, Judicial Review and Judicial Supremacy (October 2, 2014). NYU School of Law, Public Law Research Paper No. 14-57. Available at SSRN: https://ssrn.com/abstract=2510550
[2] Hanafi v. Minister of the Environment, [1996] 2 ILRM 61, 183, cited in Yaniv Roznai, Unconstitutional Constitutional Amendmenst: The Limits of Amendment Powers 80 (Oxford University Press, 2017).
Zaid Deva is a student of law at Gujarat National Law University.
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