Time to formally incorporate Basic Structure Doctrine into constitutional framework: Manish Tewari

The evolution of the basic structure of the Constitution began in 1950 when the progressive impulses of the national movement came into conflict with a conservative judiciary. The striking down of the land reforms―promised by the Indian National Congress―by the Patna High Court led to many seminal cases in the Supreme Court, especially the Shankari Prasad case (1951). Almost simultaneously, the constitutionality of preventive detention laws was challenged in the A.K. Gopalan case (1950).

In the Sajjan Singh case (1965), the validity of the 17th constitutional amendment was challenged. The landmark moment, however, came when in the Golaknath case (1967) the Supreme Court held that the powers to amend the Constitution under Article 368 were not unlimited, and the fundamental rights cannot be abrogated or abridged by a constitutional amendment.

This eventually led to Kesavananda Bharati case, in which the Supreme Court evolved the Basic Structure Doctrine. It ruled that certain basic features of the Constitution were beyond the amending powers of Parliament. In this judgment, 7 out of 13 judges defined certain features―such as parliamentary democracy, federalism, secularism, and separation of powers of the legislature, the executive and the judiciary―as basic features of the Constitution. Subsequently, the Supreme Court in the Minerva Mills and Vaman Rao cases added to the basic features of the Constitution.

The beauty of the Basic Structure Doctrine is that the Supreme Court left a lot of play within the joints to determine which law/constitutional amendment impinged upon the Basic Structure Doctrine.

The Doctrine was tested in 2015 and the Supreme Court struck down the National Judicial Appointments Commission Act as it impinged upon the separation of powers of the legislature and the judiciary.

Since 1973, the court has consistently upheld that the powers of Parliament to amend the Constitution in terms of Article 368 are fundamentally limited. The vision of the founding fathers as incorporated in the constitutional design has been repeatedly reaffirmed through the judiciary’s interpretation.

In the context of the ‘One Nation, One Election’ constitutional amendments, the judges who held parliamentary democracy to be a sacrosanct feature of the basic structure did not do so in abstract. They considered parliamentary democracy, as it stood on March 31, 1973, as a basic structure. At that time, elections to Parliament and the state assemblies were held separately. Both their five-year terms were independently kosher and sacrosanct.

In the constitutional scheme the legislatures of the Union and the states are equal partners. Article 1 of the Constitution clearly states India as a “Union of the States”. Now, to make the terms of the state legislatures subservient to the term of the national legislature for aligning the electoral cycles falls foul of the basic structure of the Constitution.

The Basic Structure Doctrine is a feature of modern democracy. The world has seen 742 constitutions enacted from 1789 to 2015. Only 17 per cent of the constitutions enacted from 1789 to 1944 had unamendable provisions. But 27 per cent of constitutions enacted from 1945 have had such explicit provisions. For instance, Article 79(3) of the German Basic Law lists the provisions that cannot be amended, including Article 1, which declares human dignity to be inviolable.

But in India, what constitutes the basics structure is still a matter of interpretation by the judiciary. This seminal judge-made law effectively guarantees that the parliamentary majorities cannot bend the letter and spirit of the Constitution at their will, whim or fancy.

The main criticism of the Basic Structure Doctrine is that judges, who have unbridled power to interpret the Constitution, are not elected by people, unlike members of Parliament. This argument does not hold water, for the simple reason that Parliament is also a creature of the Constitution. Therefore, if there is something which is Supreme, it is the Constitution and not any organ which has been created as a consequence.

The critics of the Basic Structure Doctrine cite the US Supreme Court’s ruling in the Dobbs case (2022), which overturned Roe vs Wade (1973), saying the US constitution does not confer right to abortion. The critics hope that one day the Kesavananda Bharati case will be reviewed in the same manner and the doctrine discarded.

But these comparisons are misplaced. The Roe vs Wade case was decided 7-2 when the court had a liberal majority on the bench and planned parenthood in the Dobbs case was decided 6-3 when a conservative majority sat on the bench. The partisan nature of the US Supreme Court should make it unfit for comparisons with the Supreme Court of India at least in the current context.

The time has come to formally incorporate the Basic Structure Doctrine into India’s constitutional framework. The doctrine, originating from the Kesavananda Bharati judgment and expanded through subsequent rulings, should be codified. This would provide clarity and prevent disputes about its scope.

To preserve the doctrine, it is imperative to amend the Constitution and explicitly include the judicially recognised basic features. Such an amendment would provide the judiciary with a well-defined framework, ensuring that the doctrine remains a cornerstone of India’s democratic ethos.

―As told to Pratul Sharma

Manish Tewari  is congress member of the Lok Sabha