Should India’s Parliament have the authority to amend even the ‘basic structure’ of Constitution?

On April 24, 1973, the Supreme Court of India declared that Parliament did not have the power to amend certain aspects of the Constitution, its “basic structure”. The Kesavananda Bharati judgement, as it is known, remains one of the most discussed judicial pronouncements in the country.

The seeds of Kesavanada Bharati were sown two years earlier in the Golak Nath case, in which the Supreme Court laid down that fundamental rights enshrined in the Constitution could not be tinkered with. This did not stop a powerful prime minister, Indira Gandhi, from effecting a series of controversial changes to the Constitution – she nationalised banks, abolished the privy purse and was on her way to do much more. The last straw was the enactment of the 24th amendment, which nullified Golak Nath by expressly stating that fundamental rights could be altered. This change modified Article 368 of the Constitution, which gives Parliament its amending powers.

This was challenged in the Supreme Court by a pontiff from Kerala, Kesavananda Bharati. He was joined by several other petitioners. The 25th amendment, which curtailed the right to seek compensation for property acquired by the state and the 29th amendment, which placed the Kerala Land Reforms Act under the Ninth Schedule and, therefore, beyond judicial review, were simultaneously challenged along with the 24th amendment.

The challenge was heard by a 13-judge bench led by Chief Justice SM Sikri which gave a 7-6 split verdict. Over the years, the basic structure doctrine has been broadly described by the courts to include India’s federal structure, secularism, separation of powers and the welfare agenda.

Today, some leaders of the ruling Bharatiya Janata Party are advocating changing the Constitution, including its basic structure. But what would changing the basic structure entail? How has it shaped India’s democracy over the last 45 years? How does it affect relations between the judiciary and the executive?

We put these questions, and more, to a Member of Parliament, a public intellectual and a constitutional expert to understand the nuances of the doctrine. Shanataram Naik is the Congress party’s whip in the Rajya Sabha. He recently wrote to the law minister arguing that there was a need to curb judicial overreach. Soli Sorabjee, a former attorney general, assisted the legendary jurist Nani Palkhivala as he argued against the government in the Kesavananda Bharti case. Mukul Kesavan, a professor at Jamia Milia Islamia in Delhi, is one of India’s sharpest public intellectuals. Excerpts:

Can fundamental rights be protected without the doctrine of basic structure?

Naik: Who says the basic structure doctrine is required to protect fundamental rights? If this view is accepted, it would mean the Constitution drafted under the leadership of Babasaheb Ambedkar was faulty to the extent that its very core, namely fundamental rights, was left unprotected. This is a frivolous inference. Besides, were not remedies based on fundamental rights available to citizens in the pre-basic structure period?

Kesavan: Yes. If you look at the United States, it has a clear statement of human rights, a very long history of jurisprudence on human rights, but not explicit basic structure doctrine. Clearly, the notion of civil rights can be entrenched without this doctrine. A clearer example could be that of Britain, which does not have a written constitution. Fundamental rights can be protected, given certain historical circumstances. So, theoretically, yes.

Sorabjee: Fundamental rights can be obliterated without the basic structure doctrine. We have lived through the India of ’70s and ’80s, when thanks to the absolute majority enjoyed by the ruling party, Parliament began placing several laws under the Ninth Schedule, which rendered them beyond judicial review.

Has this doctrine undermined Parliament?

Naik: Undoubtedly. In fact, the doctrine is a major hurdle in reforming the Constitution. The judiciary can stretch its interpretation to such an extent as to make the basic structure doctrine applicable to most amendments that may be proposed. The basic structure proposition is “elastic” in nature and can be mischievously applied to any proposition of law. The danger lies in the fact that even the courts haven’t defined the concept, leaving it to the whims and fancies of judges. If one looks at the number of features of the basic structure identified by the courts in multiple judgements no one will be able to measure the “length and breadth” of the concept.

Kesavan: There are different kinds of parliamentary systems. Sovereignty being vested in Parliament is different from sovereignty being vested in the Constitution interpreted by the Supreme Court. I am not sure the Supreme Court in Britain can redraw or reject parliamentary legislation. So, in Britain, the parliament is clearly sovereign. In India, Parliament is a constrained institution. It is entirely possible that a law passed by a clear majority is struck down by the Supreme Court as unconstitutional. Any constitutional democracy sets bounds about what the parliament can do. To that extent the very fact of having a Constitution limits the parliament.

The concern many people have today is that since the BJP government has a majority in Parliament and controls 22 Assemblies, leading to its majority in the Rajya Sabha as well, it can easily amend the Constitution. This is where the basic structure gains importance.

Sorabjee: The basic structure doctrine has not undermined Parliament in any way. It has in fact put a check on the powers of amendment of Parliament and state legislatures. Even those Supreme Court judges who had rejected the contention in Keshavnand Bharti were alert when Parliament passed the 39th amendment in 1975 (which put the election of the president, vice president, prime minister and Lok Sabha speaker beyond judicial scrutiny).

Has the basic structure doctrine, which seems all encompassing, scuttled the evolution of the Constitution?

Naik: It is an impediment in the way of constitutional reform. But considering the political behaviour of the ruling dispensation, even those who are opposed to the concept of basic structure feel that it has saved the Constitution from possible damage. We would perhaps have a semi-fascist regime by now if it was not for the basic structure doctrine, although it entered the Constitution through the back door.

Strictly speaking, the basic structure doctrine is outside the ambit of the Constitution since even the framers had not visualised that it. Otherwise, they would have incorporated the concept somewhere.

Kesavan: All apex courts are unelected, by definition. The trouble in India’s case is that in recent years the Supreme Court has effectively become a self-constituting body. To elevate a judge or a lawyer to the Supreme Court in the US, they have to be nominated by the executive and ratified by the legislature. In India, the collegium decides who is going to be a judge. Though there is an instance currently where the government is sitting on a recommendation of the collegium, there is no process of legislative or parliamentary approval.

In India, because of the way the apex court constitutes itself, the normal link in a parliamentary democracy between judiciary and legislature has been broken. It is as if an unelected body of judges that is self-constituent is getting in the way of legislation that Parliament is making.

Sorabjee: Again, fundamental rights would be vulnerable without the basic structure doctrine. In fact, it has been conducive to progressive evolution of the Constitution. Even after 1973, there have been numerous amendments to the Constitution.

Since the doctrine has helped, in protecting secularism for instance, do you agree that it does the essential work that Parliament has failed to do?

Naik: Parliament has not failed to do anything. But attempts have been made to wipe out the concept of secularism. The ruling party’s leaders are openly canvassing for burying secularism. The need of the hour is to restore the powers of Parliament.

Kesavan: In the end, if you have a special majority in both lower and upper houses and a pliant judiciary, reinterpreting the Constitution to mean what you want it to mean is not impossible.

For example, the Citizenship Amendment Bill of 2016 says refugees coming from Afghanistan, Pakistan and Bangladesh, so long as they are not Muslim, are entitled to Indian citizenship after six years of residence. The rationale is that India should be more receptive to persecuted minorities. In my view it violates the basic structure because there should not be a religious bent to any law. The foundation of this argument is that these are Muslim-majority countries; it ignores that many of the most persecuted people in these countries belong to Muslim sects – Shias or Ahmadiyyas in Pakistan, for example. If an amendment like this passes, the Supreme Court will be the ultimate arbiter.

There are at least a dozen states which have this Geobbleisian law called the Freedom of Religion Act, which actually means the opposite of what it claims. It was passed both by BJP and Congress governments by the way. A Congress government in Himachal Pradesh introduced it quite recently. It makes your right to convert to a religion conditional on you informing a district magistrate. Given that these laws are seen as constitutional, I have doubts about how effective the basic structure is. That said, the doctrine does, theoretically at least, limit Parliament from radically changing the Constitution.

As someone on the left of the liberal side of the fence, the basic structure doctrine is not some kind of a guarantee, but it is essential. I think the Constitution, despite all its flaws, is a rigorously liberal document. In my capacity as a constitutional liberal, I think that is a good thing. I think the people who want to change certain aspects of the Constitution are going to change them from the right of the political spectrum. I approve of the basic structure because it broadly enshrines a liberal constitutional order, and I do not think it could be improved from either the right or the left. So I am in favour of constitutional inertia.

Sorabjee: It is the judiciary applying the basic structure doctrine that has sustained the essential features of the Constitution, including secularism. You just need to flip through the books of history to see evidence of this. Let us not forget that thanks to the basic structure doctrine, no party with absolute majority in either house of Parliament can effect a constitutional amendment that would make India a theocratic state.