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  • Ashutosh Mishra

Evolving Role of the Doctrine of Basic Structure in Contemporary Times

Introduction

“Simple can be harder than complex: You have to work hard to get your thinking clean to make it simple. But it’s worth it in the end because once you get there, you can move mountains”

-Steve Jobs


It took time and a troubled democracy for the Apex Court to come up with the doctrine of basic structure to protect the sovereign characteristics of India and ensure that the power of amendment is not misused by the Parliament. It was like a person has been provided a piece of cloth with the power to alter and stitch something out of it. The doctrine of basic structure basically provided the answer to the question that whether such power was to alter and make say a mask or a shirt out of it or did the power also extend to throwing the cloth altogether? At the time the doctrine was propounded, it helped overcome one of the most challenging phases in the Indian democracy. Although after the emergency, the doctrine has been used time and again to define what essentially are the basic features of the Indian Constitution; however, the events in the last 2-3 years have effectively brought the use of the basic structure doctrine and its role in protecting the democratic integrity of the nation to a prominent role once again. For example, the Supreme Court in the case of Jaishri Laxmanrao Patil v Chief Minister, Maharashtra[1] concerning the Maratha reservation also delved into the aspect of violation of federal polity as a basic structure.


In this write-up, the author attempts to examine the role that the doctrine of basic structure might play in the coming time with many key Constitutional law cases pending before the Supreme Court that may change the course of Indian democracy for a long time. As it says, that with a new path comes its challenges while travelling it; the author also tries to bring forward certain perspectives relating to the doctrine that may need to be interpreted before its final usage to maybe save the day!


What is the basic structure doctrine all about?

The landmark case which clearly laid down the basic structure doctrine was the case of Kesavananda Bharati v. State of Kerala[2] wherein the Court discussed the scope and width of Parliament’s amending powers. In an earlier case of Golaknath v State of Punjab[3], the Supreme Court opined that the parliament abrogate or abridge fundamental rights through the process of an amendment. Thereafter, the 24th Constitutional Amendment Act was passed by the Parliament to nullify the effects of this case. In March 1970, Kesavananda Bharati had already challenged the attempts of the government to acquire land belonging to his mutt under the Kerala Land Reforms Act, 1963 and later other amendments related to land reforms in Kerala which were added in Schedule IX of the Constitution. His writ petition basically sought to defend the fundamental right of religious institutions to manage their own property without undue restrictions by the state.


The majority view in this case was that the word ‘amendment’ suggested that the Constitution must subsist without loss of its identity. This meant that the basic structure or framework of the Constitution must survive any amendment of the Constitution. Therefore, although it was permissible to the parliament to effect changes in the exercise of its amending power to adhere to the needs of the time. However, it was impermissible to touch the foundation or to alter the basic institutional pattern. Although, the court did not expressly define what constitutes basic structure and it was left open to the Court to decide the same from time to time. Subsequently, the court has indeed defined as to what constitutes the basic structure and features such as federalism, secularism, equality, rule of law, democracy etc. have emerged.[4] Thus, over the course of history, the basic structure doctrine has been used to define the basic features of the Constitution and to protect its integrity according to the needs of the time.


Contemporary issues and the role of the basic structure doctrine

In recent times, the Supreme Court has witnessed a barrage of petitions wherein the Constitutionality of certain legislations has been challenged. The key argument inter alia has been the violation of the basic structure doctrine in these cases. For ease of reference, the author has attempted to tabulate these issues and the main consideration related to the doctrine of basic structure below:Issue before CourtBasic feature under considerationRemarksThe Citizenship Amendment Act[5] wherein the benefits of naturalisation to undocumented migrants belonging only to the Hindu, Sikh, Buddhist, Jain, Parsi and Christian faiths, coming from certain countries has been provided and Muslims have not been includedSecularismOne of the key issues raised in this case is that classification based on religious identity offends the fundamental principle of secularism.Reservation of Economically Weaker Section other than backward classes or Scheduled Castes or Scheduled Tribes[6]Equality before lawThe Apex Court has identified[7] that the question of whether the amendment violates the basic structure of the Constitution by applying the tests of ‘width’ and ‘identity’ with reference to equality provisions of the Constitution is a matter which constitutes a substantial question of lawRevocation of Jammu and Kashmir’s special status[8]Federalism, Democracy and Rule of LawOne of the issues raised is that substituting the concurrence of the state with concurrence by the governor under President’s rule, is a violation of democracy. Also, the suspension of use of Proviso to Article 3 of the Constitution violates the federal balanceElectoral Bonds[9]Separation of powers and right to informationThe issue raised is that the doctrine requires the State to justify the degree of invasion of fundamental rightsThe practice of Nikah-halahwherein a divorced woman can only remarry her husband if she first remarries another man and consummates her marriage and also prohibition of women to enter mosques to offer prayers[10]Equality of status and opportunity to womenOne of the main contentious in the case is that such practices are repugnant to the basic dignity of a woman as an individual and also violative of the fundamental rights guaranteed under the Constitution


A glance at the above issues makes it clear that the basic structure will play an important role in determination of the outcomes of the cases. A glance at the Indian judicial history vis-à-vis basic structure[11] demonstrates that the issues have had a great impact on the society. With the basic structures of democracy, federalism, secularism, equality, dignity etc. under consideration, it is not a stretch to say that the principles treasured in the Preamble reflect the Constitutional values imbibed in the Constitution would be put to test while deciding these cases. If the violent protest against the Citizenship Amendment Act (which was a legislative action) is anything to go by, any wrong step taken while the determination of these issues by the judiciary could cause a major upheaval in the Indian society. The basic structure doctrine is sure to play a prominent role in all this and the correct or incorrect usage of the same can indeed make or break the Indian democracy in coming times!


Challenges related to the basic structure doctrine

It is trite to know that the basic structure doctrine has frequently saved the Constitution’s integrity and sanctity. However, looking at a history of the doctrine’s journey in the roads and lanes of the law, it is trite to note that it has not been a smooth one. There have been recurrent challenges testing its acceptability and applicability at every turning point. Thus, it is quite obvious to infer that the contemporary challenges it needs to face will also make the doctrine undergo a tough scrutiny before it can actually be implemented.


Firstly, one of the major challenges that the doctrine has faced (even when universally recognized as a strength of the Indian democracy) is it being labelled as anti-democratic and counter-majoritarian in character.[12]  Due to the uncertainty of the nature of ‘basic structure’ and limited parameters for its determination, it is usually left to the wisdom of the particular judges on a case-to-case basis. This may eventually mean that at a given time, a certain school of thought that a judge carries would reflect in the determination of what constitutes a basic feature that may not be the popular public opinion. This effectively can make it a recipe for a disaster.


Secondly, another recurring issue that has engaged learners and researchers is the applicability of the basic structure test on ordinary laws. The general view of the Supreme Court is that it restricted only to constitutional amendments.[13]However, this debate is far from over as it has often been opined by scholars that if a constitutional amendment has to pass the test of basic structure test, then why does an ordinary law not?[14] Given the contemporary issues pending before the Constitutional Courts, it is implicit that the challenge relating to the basic structure has been related in quite a few cases to ordinary legislations as well. Thus, it shall be quite a challenge for the Supreme that the doctrine of basic structure, if invoked, passes this test of applicability as well.


Concluding remarks

At the end of the day, whether the Supreme Court chooses to invoke the basic structure doctrine is at its discretion. There have been cases in recent times which have been quite relevant to the India society and basic structure doctrine was challenged but the court did not invoke the doctrine during its final decision. A prime example of the same is the Maratha Reservation case.[15] In this case, one of the arguments of the petitioner was that the inclusion of Marathas in backward classes list violates the basic structure of federal polity enshrined in the Constitution although the Court did not agree to the same[16]. Although, the point of basic structure was indeed raised in this case but it finally did not play a very prominent role in the outcome of the case the Court decided the case on other aspects. However, it is also true that the few cases in which the Supreme Court has in fact applied the doctrine to find amendments, acts and executive action unconstitutional have always been important. Indeed, the usage of doctrine to uphold the validity of laws from time to time has shown that the doctrine is still relevant and will always have ‘unfinished businesses’ to settle. Thus, it would allow potential petitioners to always use it for additional legal support. It is also important to note that any petitioner challenging an amendment by invoking the test of basic structure should not only argue it for the sake of argument but must also establish that one of those principles has in fact been violated. Yes, it’s hard that a doctrine with the term ‘basic’ in it can be used to solve complex problem but as Mr. Jobs says it’s all worth in the end. And if the end is saving the democracy, it will always be worth the wait as an Indian Citizen!

 

[1] 2021 SCC OnLine SC 362

[2] Kesavananda Bharti v. State of Kerala, (1973) 4 SCC 225

[3] Golaknath v. State of Punjab, 1967 SCR (2) 762

[4] See, Kesvananda Bharati v. State of Kerala, (1973) 4 SCC 225, S.P. Sampath Kumar v. Union of India, 1987 SCR (1) 435, S.R. Bommai v. Union of India, 1994 SCC (3) etc.

[5] Challenged in the case of Indian Union Muslim League v. Union of India, WP(C) 1470/2019.

[6] Challenged in the case of Youth for Equality v. Union of India, WP(C) 73/2019.

[7] Janhit Abhiyan v. Union of India, W.P.(Civil) 55 of 2019

[8] Challenged in the case of Manohar Law Sharma v. Union of India, WP(C) 1013/2019.

[9] Challenged in the case of Association for Democratic Reform v. Union of India, WP(C) 333/2015.

[10] Challenged in the case of Sameena Begum v. Union of India, WP(C) 222/2018.

[11] Supra Note 3.

[12] See, Christopher J. Beshara, Basic Structure Doctrines and the Problem of Democratic Subversion: Notes from India (Pages 109-122), Jstor (Feb. 8, 2022, 1:00 PM), https://www.jstor.org/stable/26160109?seq=23#metadata_info_tab_contents.

[13] Kuldip Nayar v. Union of India AIR 2006 SC 3127

[14] Madras Bar Assn. v. Union of India, (2014) 10 SCC 1 and Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1. Also see, V. Venkatesan, As Courts Rule on Constitution’s Basic Structure, Landmark Doctrine Turns Out to Be Elastic, The Wire (Feb. 8, 2022, 1:15 PM), https://thewire.in/law/constitution-basic-structure-case-histories.

[15] Jaishri Laxmanrao Patil v Chief Minister, Maharashtra, 2021 SCC OnLine SC 362.

[16] Jaishri Laxmanrao Patil v Chief Minister, Maharashtra, 2021 SCC OnLine SC 362 at Para 187.


By Mr. Ashutosh Mishra, Advocate, New Delhi and LLM Candidate (Constitutional and Administrative Laws) at Maharashtra National Law University.

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