Constitutional Basis For Basic Structure Doctrine in India: Effects and Applicability

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KLE Law Journal 75

CONSTITUTIONAL BASIS FOR BASIC STRUCTURE


DOCTRINE IN INDIA: EFFECTS AND APPLICABILITY

Dr. N. Sathish Gowda*

1. Introduction

The Constitution of India is a supreme, special, legal document which gives


clear road map to all three organs of the government in Centre and State to
perform their duties and functions within its sphere. No organ of the government
is supreme. All three organs of the government should work within the boundary
of the Constitution. There must be an express provision under the Constitution to
consider, the validity of the actions of the individual organ as well as to justify
WKHLURUGHUV%XWZKHQWKHUHLVDJDSLQ&RQVWLWXWLRQDOODZWRFKHFNWKHXQMXVWL¿HG
actions of the government, then judiciary can evolve or invent some doctrine to
uphold the constitutional supremacy. The Apex Court laid down the doctrine or
principle should be only at exceptional circumstances to resolve the constitutional
crisis. If Judiciary continues in preparing guidelines and evolving doctrines for all
cases as general rule, it will be a great threat to the democratic principles and also
contradictory to the theory of separation of power.

The framers of the Constitution, with due diligent have taken lot of care
and concern to provide a best Constitution to the citizen. But, they did not add
express clause under Article 368 to impose limitations upon the amendment
power exercised by the Parliament. Consequently, Parliament by exercising
its constituent power added tricky Ninth Schedule1 to accommodate agrarian
reforms by excluding judicial review. Gradually, Ninth Schedule made controlled
Constitution into uncontrolled one. As a result, in Keshavanada Bharathi’s2
case in 1973, the Supreme Court made uncontrolled Constitution into controlled
one through inventing the new doctrine called “Basic Structure” which imposes
implied limitations upon the amendment power of the Parliament. But, Supreme


Assistant Professor (Grade-II), P.G. Department of Studies and Research in Law and University Law College,
Bangalore University, Jnanabharathi Campus, Bangalore, Karnataka.
௘
Ninth Schedule was inserted in the 1st Amendment of Indian Constitution.
2
௘$,56&

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KLE Law Journal 76

Court has failed to lay down the yardstick for what constitutes basic structure.
Power to make an implied amendment to Indian Constitution was given even to
individual judge, which is really unfair under the scheme of theory of separation
of power which is also one of the basic structure of the Indian Constitution. The
Judiciary even did not say the subject matters of basic structure should be decided
by the Constitutional Bench.

The doctrine of “basic structure of the Constitution”3 has become very


controversial principle and ambiguous one. This doctrine does not have a textual
basis. There is no provision stipulating that the Constitution has a basic structure
and this structure is beyond the competence of amending power. Therefore, the
limitation of the amending power through the basic structure of the Constitution
is deprived of positive legal validity. Moreover, not having its origin in the text of
the Constitution, the concept of the “basic structure of the Constitution” cannot be
GH¿QHG

In this context, an attempt has been made in this paper to examine the reasons
for evolving this doctrine by the Apex Court and to know what constitutes the
basic structure of the Constitution. Further, paper addresses, whether this doctrine
violates the theory of separation of power which is also one of the basic features
of Indian Constitution? Do we need to add this doctrine expressly by bringing an
amendment to Article 368? If single judge says some subject matters are basic
structure, would it not curtail the power of Parliament?

2. Evolution of Basic Structure Theory in India

Generally academicians always argue that the basic structure theory is the
SURGXFWRIORQJVWUXJJOHDQGFRQÀLFWEHWZHHQWKH3DUOLDPHQWDQG-XGLFLDU\%XW
the author opines that this doctrine came into existence not because of confront
between Judiciary and Parliament, but, because of framers passive approach, where
they did not give any scope and place for agrarian reforms under the provisions of
the original Constitution. Further, incorporating the right to property under the list

3
௘7KHGRFWULQHRI³EDVLFVWUXFWXUH´LVLQWURGXFHGLQWR,QGLDE\D*HUPDQVFKRODU'LHWULFK&RQUDGSee Dietrich
Conrad, Limitation of Amendment Procedures and the Constituent Power, 15-16 Indian Year book of International
$IIDULV  )RUWKH'&RQUDG¶VLQÀXHQFHRQWKH,QGLDQ6XSUHPH&RXUWsee A. G. Noorani, “Behind the
Basic Structure Doctrine: On India’s Debt to a German Jurist, Professor Dietrich Conrad”, 18 FRONTLINE (April
28 - May 11, 2001), available at KWWSZZZKLQGXRQQHWFRPÀLQHÀKWP

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KLE Law Journal 77

of fundamental rights was also one of the factors responsible for giving birth to this
doctrine by the Apex Court in 1973.

If framers had not brought right to property under Part-III of Indian


Constitution, we would have not seen the case of Kameshwar Singh v. State of
Bihar4. Because of this case, the then Prime Minister Jawaharlal Nehru brought
Ninth Schedule5 read with Article 31-B6 RI WKH ,QGLDQ &RQVWLWXWLRQ LQ WKH ¿UVW
amendment in order to give much importance to agrarian reforms which was one
of the manifest of Indian Congress before independence. If we would have not had
this 1st amendment, Shanakri Prasad’s7case would have not come into the picture.
After Shankari prasad’sFDVHEDVLFVWUXFWXUHGRFWULQHZDVFRQFHLYHG¿UVWWLPHLQ
Sajjan Singh8 case. In these two cases, Supreme Court in fact respected and upheld
the decision of Parliament for giving scope for agrarian reforms through Ninth
Schedule.

Thereafter, Supreme Court in Golak Nath’s9 case said that amendment will also
FRPHXQGHUWKHGH¿QLWLRQRIµ/DZ¶:KHQµODZ¶KDVOLPLWDWLRQVXQGHU$UWLFOH
of the Constitution (subject to the Provisions of the Constitution), ‘amendment’
will also have limitations. Till date, there is no single express provision under
the Indian Constitution to limit the amendment power of the Parliament. But, for
WKH ¿UVW WLPH 6XSUHPH &RXUW LQ WKLV FDVH LPSRVHG LPSOLHG OLPLWDWLRQ XSRQ WKH
amending power of the Parliament by adding the word ‘amendment’ under the
GH¿QLWLRQRIµODZ¶DFFRUGLQJWR$UWLFOH  D 7KHSHWLWLRQHU*RODN1DWKVSHQW
money in this case for no relief but for evolving the ‘doctrine of prospective over
ruling.’
4
AIR 1951 Pat.91, SB.
௘
Ninth Schedule was introduced in the Constitution by the Constitution First Amendment Act 1951.
6
௘$UWLFOH%9DOLGDWLRQRIFHUWDLQ$FWVDQG5HJXODWLRQVWithout prejudice to the generality of the provisions
contained in Article 31-A QRQH RI WKH $FWV DQG 5HJXODWLRQV VSHFL¿HG LQ WKH 1LQWK 6FKHGXOH nor any of the
provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation
or provision is inconsistent with, or takes away or abridges any of the rights conferred by any provisions of this
Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said
Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in
force.
௘
Sankari Prasad Singh v. Union of India, AIR 1951SC 458.
8
௘Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.
9
௘Golak Nath v. State of Punjab, (1967) 2 SCR 762; AIR 1967 SC.

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KLE Law Journal 78

As a result, to nullify the verdict, Parliament brought 24th amendment10 and


added clearly clause 3 under Article 368 and clause 4 under Article 13 stating that
Parliament is having power to amendment the Constitution is not a law making
power but it is a constituent power. Thereafter, constitutional validity of 24th
Amendment was challenged in the case of Keshavananda Bahrathi.11 Supreme
Court constitutional bench consisting of 13 judges12 (6:1:6) upheld the 24th
Amendment and said that Parliament under Article - 368 can bring an amendment
to any provisions of the Indian Constitution including fundamental rights but not
for the basic structure. This is how; the Supreme Court gave real birth to this basic
structure doctrine to check the uncontrolled power of the Parliament.

Therefore, the author strongly observes that because of the framers of the
Constitution attempt to include right to property in the list of fundamental rights
in the original Constitution. The doctrine of basic structure came into existence in
the Keshavananda Bahrathi’s case. Hence, right to property is the main cause and
responsible right for evolving this doctrine.

3. What constitutes Basic Structure?

People in India seem to have accepted, the basic structure doctrine in the same
manner as the Americans accepted judicial review of legislation claimed by the
Supreme Courts of the United States in Marbury v. Madison.13 In determining
what basic structure is, the Court will have to keep national consensus about such
basic structure in mind. It is impossible to articulate exhaustively the elements
which would constitute the basic structure of the Constitution. It will have to
be articulated from case to case. During last few years the Supreme Court has

10
௘ $UWLFOH  DQG  ZHUHLQVHUWHGWKURXJKth Amendment. [13 (4) Nothing in this article shall apply to
any amendment of this Constitution made under article 368.]
11
௘Supra Note 2.
௘7KHVH6HYHQ-XGJHVZHUH&KLHI-XVWLFH6LNUL-XVWLFHV6KHODW+HJGH*URYHU0XNKHUMHD-DJDQPRKDQ5HGG\
12

and Khanna. The minority consisting of Justices Ray, Mathew, Beg, Dwivedi, Palekar and Chandrachud held that
Parliament had unlimited power of constitutional amendment. See S.P.Sathe, “Judicial Review in India: Limits
and Policy”. H.M. Seervai, in his analysis of the case in his magnum opus, “Constitution of India” states that six
out of the seven majority judges held that there were implied and inherent limitations on the amending power
of the Parliament, which precluded Parliament from amending the Basic Structure of the Constitution. However
Khanna J. rejected this theory of implied limitations but held that the Basic Structure could not be amended away.
All Seven judges gave illustrations of what they considered Basic Structure comprised of.
௘
I. Cranch 137 : 2 L.Ed. 60.

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KLE Law Journal 79

intervened with constitutional amendments on the ground of basic structure


LQLWLDOO\RQO\LQ¿YHFDVHV14
In Kesavananda Bharati’s case, the majority of judges who admitted the
existence of “basic structure of the Constitution” did not agree with the list of
the principles included in this concept. Each judge drew a different list. Each
MXGJHLVDEOHWRGH¿QHWKHEDVLFVWUXFWXUHFRQFHSWDFFRUGLQJWRKLVRZQVXEMHFWLYH
satisfaction. This leads to the fact that the validity or invalidity of the Constitution
Amendment lies on the personal preference of each judge. In the event of this, the
MXGJHVZLOODFTXLUHWKHSRZHUWRDPHQGWKH&RQVWLWXWLRQQRWVSHFL¿FDOO\FRQIHUUHG
to them under the Constitution but given to the Parliament under Art.368 of the
Constitution. For that reason, as noted by Anuranjan Sethi, the basic structure
doctrine can be shown as a “vulgar display of usurpation of constitutional power by
the Supreme Court of India.”15 As illustrated in the case-law of the Indian Supreme
Court, when there is no explicit substantive limitation on the amending power,
the attempt by a constitutional court to review the substance of the constitutional
amendments would be dangerous for a democratic system in which the amending
power belongs to the people or its representatives, not to judges.

4. Subject matter of Basic Structure Theory

Supreme Court in series of cases considered following are the subject


matters of basic structure and same cannot be altered or amended by the Parliament
under Article 368 of the Indian Constitution. They are:

¾Supremacy of the Constitution- republican and democratic form of


government- Secular character of the Constitution- Separation of powers
between the legislature, executive and the judiciary-Federal character of
the Constitution16.

௘
Kesavananda Bharti v. Kerala, AIR 1973, SC 1461; Indira Gandhi v. Raj Narain, AIR 1975 SC 2299; Minerva
Mills v.Union of India, AIR 1980 SC 1789; S.P. Sampat Kumar v. India, AIR 1987 SC 386; Sambamurthy v.
A.P, AIR 1987 SC 663.
௘
Anuranjan Sethi, %DVLF6WUXFWXUH'RFWULQH6RPH5HÀHFWLRQV, http://ssrn.com/abstract=835165, p. 6-8, 26-27
Similarly, S. P. Sathe concluded that “the Court has clearly transcended the limits of the judicial function and
has undertaken functions which really belong to… the legislature” (S. P. Sathe, Judicial Activism: The Indian
Experience,6WASH. U. J. L. AND POL’Y 29-108, at 88 (2001)
Available at http://law.wustl.edu/journal/6/p_29_Sathe.pdf. Likewise, T. R. Andhyarujina said that the “exercise
of such power by the judiciary is not only anti-majoritarian but inconsistent with constitutional democracy”
(T. R. Andhyarujina, ‘Judicial Activism and Constitutional Democracy in India’10 (1992), quoted in Sathe, at 70.
16
௘Keshavananda Bahrathi Case Sikri, C.J. explained the concept of basic structure.

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KLE Law Journal 80

¾The mandate to build a welfare state contained in the Directive Principles


of State Policy- Unity and Integrity of the nation-Sovereignty of the
country17.

¾Democratic character of the polity-Unity of the country- Essential features


of the individual freedoms secured to the citizens- Mandate to build a
welfare state.

¾Unity and integrity of the nation18 -Equality of status and the opportunity
-Sovereign democratic republic-Justice - social, economic and political-
Liberty of thought, expression, belief, faith and worship. Democratic
character of the polity-Unity of the country- Essential features of the
individual freedoms secured to the citizens-Mandate to build a welfare
state.

¾Democracy and the Preamble to the Indian Constitution guarantees


equality of status and of opportunity and that the Rule of law is the basic
structure of the Constitution19.

¾The doctrine of equality enshrined in Art.14 of the Constitution, which is


the basis of the Rule of Law, is the basic feature of the Constitution.20

¾Independence of judiciary is a basic feature of the Constitution as it is the


sine qua non of democracy.21

¾Secularism and Democracy and Federalism are essential features of our


Constitution and are part of its basic structure.22

¾Judicial review is a part of the basic constitutional structure and one of


the basic features of the essential Indian Constitutional Policy. Several
17
Shelat, J. and Grover, J. added three more basic features to the list
௘Hegde, J. and Mukherjea, J.LGHQWL¿HGDVHSDUDWHDQGVKRUWHUOLVWRIEDVLFIHDWXUHV
18

௘Indira Gandhi v. Rajnarain AIR 1975 SC, 2299 (1975) 3 SCC 34; Kihoto Hollohon AIR, 1993, SC 412
19

௘Nachane, Ashwini Shivram v. State of Maharashtra, AIR 1998 Bom 1; Raghunath Rao v. Union of India, AIR
20

1993 SC 1267
21
௘ %KDJZDWL-Union of India v. Sankal Chand, Himmatlal Sheth, AIR 1977 SC 2328 : (1977) 4 SCC 193. and
The Gupta Case, AIR 1982 SC 149 at 197, 198, Kumar Padma Prasad v. Union of India, AIR 1992 SC 1213 :
(2000) 4 SC 640, State of Bihar v. Bal Mukund Shah, AIR 2000 SC 1296, Supreme Court Advocates-records-
Association v. Union of India, (1993) 4 SCC 441; AIR 1994 SC 268.
22
௘S.R. Bommai v. Union of India, AIR 1994 SC 1918, at 1976; Poudyal v. Union of India, (1994) Supp.1 SCC
324.

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KLE Law Journal 81

Articles in the Constitution, such as Arts.32, 136, 226 and 227, guarantee
judicial review of legislation and administrative action23

¾The unity and integrity of the nation24 and Parliamentary system.25

Adding many subject matters to the Basic structure box, Judiciary has
completely tightened the hands of Parliament. As a general rule, Judiciary has
been adding many aspects as basic structure and directed the parliamentarian not
to change or alter above mentioned subject matters.

5. Effects of Basic Structure Theory on Amendment Power of the Parliament

The “Basic Structure” doctrine is the judge-made doctrine whereby certain


features of the Constitution of India are beyond the limits of the amending powers
of the Parliament. Though the Court held that the power of Parliament to amend
the Constitution was impliedly limited by the doctrine of basic structure, it did not
FOHDUO\GH¿QHRUH[SODLQZKDWFRQVWLWXWHVWKHEDVLFVWUXFWXUH26
According to Prof. Upendra Baxi,27 the effect of the decision in Keshavananda
Bharathi’s case on amendment power of the Parliament rendered so far indicate
the following limitations alone, viz.,
ƒ Total repeal of the Constitution would be violative of the basic structure,
ƒ Any expansion of Art.368 to achieve consequence of total repeal would
similarly be violative of the basic structure,
ƒ Any attempt to deprive the Court of its power of judicial review of
Constitutional amendment would also be transgressive of basic structure,
ƒ Freedoms guaranteed by Arts.14, 19 and 21 constitutes to limit the power
of amendment,

ƒ Any attempt to abrogate Part IV of the Constitution may violate basic


structure and

23
௘L.Chandrakumar v. Union of India, AIR 1997 SC 1125; Waman Rao v. Union of India, AIR 1981 SC 271
24
௘Raghunath Rao v. Union of India, AIR 1993 SC 1267
25
௘In Raghunath Rao v. Union of India case, AIR 1973 SC at 1535, 1603, 1628 and 1860.
௘
Article on “Basic Structure Doctrine and its Widening Horizons” by V.R. Jayadevan, published in CULR, Vol.
27, March 2003 p.333
௘
See article on ‘Amendment of the Constitution in Constitutional Law of India,’ VOL.II, (Bar Council of India
Trust).

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ƒ The democratic nature of the Constitution may not be validly transformed


by the use of Art.368.

6. Insertion of Clause 4 and 5 of Article 368 (42nd Amendment)

After the decisions of the Supreme Court in Keshavnand Bharati and Indira
Gandhi28 cases, the Constitution (42nd Amendment) Act, 1976, was passed which
added two new clauses of 4 and 5 to Article 36829 of the Constitution expressly
prohibiting the review of the Constitutional amendments. The 42nd Amendment
tried to overreach the implication of Kesavananda Bharathi’s case.

But in Minerva Mills Ltd. v. Union of India,30 question arose that, whether the
amendments introduced by Sections 4 and 55 of the Constitution (42nd Amendment)
Act, 1976 damage the basic structure of the Constitution by destroying any of its
basic features or essential elements? The Supreme Court in its answer considered
clause (4) and (5) of Art. 368 that were inserted by the 42nd Amendment and held
them to be unconstitutional since they damage and destroy the basic structure of the
Constitution. On the whole, Minerva Mills31 is a comprehensive decision bringing
clarity to the doctrine of basic structure. The holding enables the Indian Constitution
and the Indian legal system to retain their identity even when attempts have been
made to alter them for bringing about social revolution through legislation.32

After this case, Supreme Court in Waman Rao v. Union of India33 once
again reiterated and applied the doctrine of basic features of the Constitution. In
I.R.Coelho case,34 the Constitution Bench observed that, according to Waman Rao

28
௘$,56&
29
௘ &ODXVH   $UW  VWLSXODWHG WKDW ³1R FRQVWLWXWLRQDO DPHQGPHQW LQFOXGLQJ WKH SURYLVLRQ RI 3DUW ,,,  RU
purporting to have been made under Art.368 whether before or after the commencement of the Constitution
(42nd Amendment) Act, 1976 shall be called in any court on any ground.” Therefore in India, as of 1976, the
Supreme Court was precluded from reviewing constitutionality of Constitutional amendments. There is no doubt
on this issue because clause (4) of Art.368 explicitly prohibits the judicial review of constitutional amendments.
Moreover, clause 5 of the same Article states that “there shall be no limitation whatever on the constituent power
of Parliament to amend by way of addition, variation or repeal of the provisions of the Constitution under this
Article.” This clause also provides that constitutional amendments cannot be judicially reviewed because Indian
Constitution does not impose any limitations on the power of Indian Parliament to amend the Constitution.
30
௘  6&5 $,56&
௘
Ibid
32
௘95-D\DGHYDQ¶Vµ%DVLFStructure Doctrine and its Widening Horizons, published in CULR (2003) p.349.
33
௘$,56&
34
௘$,56&

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KLE Law Journal 83

and Ors. v. Union of India and Ors35 amendments to the Constitution made on or
after 24th April, 1973 by which the Ninth Schedule was amended from time to
time by inclusion of various Acts, regulations therein were open to challenge on
the ground that they, or any one or more of them, are beyond the constituent power
of Parliament since they damage the basic or essential features of the Constitution
or its basic structure.

7. The Constitution Forty-Fifth Amendment Bill, 1978.


It is really not possible to exhaustively enumerate the aspects of the basic
structure of the Constitution. Such an attempt was made by the Constitution
(Forty-Fifth) Amendment Bill, 1978 (CB 45),36 which was undertaken during the
short period of rule of the Janatha Government. In this, the following features
were mentioned as features requiring special process of referendum for their
amendment. They are: (i) The secular or democratic character of the Constitution;
(ii) Rights of citizens under Part III; (iii) Free and fair elections to the House of the
People or the Legislative Assemblies of states on the basis of adult suffrage; (iv)
The independence of the Judiciary and (v) Amendment of the provision for the
entrenchment of the above basic features and the requirement for the referendum.
If an amendment of the Constitution was to be made for the amendment of any
of the above matters, such an amendment had to be approved by the people at a
referendum. The referendum for the purpose of seeking the approval of the people
of India for any amendment of the nature referred to in the above provision was
to be through a poll and all persons eligible for voting in the elections to the Lok
6DEKD ZHUH WR YRWH LQ VXFK D SROO 1RW OHVV WKDQ ¿IW\ RQH SHUFHQW RI WKH WRWDO
number of eligible voters must actually vote in the poll and the amendment was
deemed to be approved at the poll, if it was supported by a majority of the votes
actually polled. The opposition to the amendment was a tacit admission of the
basic structure doctrine. The opposition to the amendment was not because it had
entrenched the basic structure but because it provided for even the destruction of
such basic structure through a referendum. Whether such matters could be left to
popular will was also doubted. Seervai observed.37

௘Supra Note 33.


35

௘ &%  LV WKH DEEUHYLDWLRQ XVHG LQ WKH WH[W IRU WKH &RQVWLWXWLRQ )RUW\)LIWK $PHQGPHQW  %LOO ZKLFK ODWHU
36

became the Constitution (Forty-Fourth Amendment) Act.


௘+06HHUYDL&RQVWLWXWLRQDO/DZS
37

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KLE Law Journal 84

The adoption of a referendum under the conditions prevailing in India was


ill-advised and ill-conceived. Amendments to the Constitution are not capable of
being formulated in such a manner as to ask for a simple ‘yes’ or ‘no.’As against
this, Professor Baxi had strongly recommended such legislative enumeration of
the basic structure limitations much before it was mooted by the amendment Bill.
He had recommended referendum for the amendment of any such basic features.38

The basic structure doctrine has been legitimated due to gross abuse of
constituent power by the ruling elite and subsequent acceptance of it by all major
political participants.39 Unfortunately, the Rajya Sabha where the Congress Party
had a majority did not approve these proposals although the Lok Sabha had passed
the same by the requisite majority.40

8. Basic Structure Doctrine and Theory of Separation of Power

Lord Montesquieu in 1948, propounded the theory of separation of power.


According to him, one organ of the government should not interfere with another
organ of the government. Keeping this in mind, Hon’ble Apex Court said that
separation of power is also one of the basic structure of the Indian Constitution.
The Constitution of India also provided clear cut separation of powers among three
organs of the government.

7KH 6XSUHPH &RXUW IRU WKH ¿UVW WLPH KDV LPSRVHG LPSOLHG OLPLWDWLRQV RQ
amendment power (which was considered as law making power) in Golaknath’s
case. Later, Supreme Court by inventing the doctrine of basic structure, they
completely curtail the amendment power of the Parliament. Many academicians
argue that Golaknath’s case decision was overruled by the Court in Keshavanada
Bahrathi’s case. But, the author strongly opines that the decisions in both the cases
are similar when it comes to the matter of imposing limitations upon the amending
power of the Parliament. But, the Supreme Court in Keshavananda’s case has
overruled the part of the decision of Golaknath with respect to the non acceptance

38
௘ 8SHQGUD%D[L³6RPH5HÀHFWLRQVRQWKH1DWXUHRI&RQVWLWXHQW3RZHU´LQ7UHQGVDQG,VVXHV, p. 142 (Indian
Law Institute, 1978).
39
௘ 636DWKH³Limitation on Constitutional Amendment: Basic Structure Principle Reexamined” in Trends and
Issues, p. 179 (Indian Law Institute, 1978).
௘
M.P.Jain ‘Indian Constitution Law” Fifth Edition, 2003 p.1926.

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KLE Law Journal 85

of the constitutional amendment as law and upholding the constitutional validity


of 24th Amendment. Otherwise, it makes no difference between both the decisions.

R Dhavan and A Shourie have observed that the Court is accused of widening
the scope of judicial review beyond the constitutional boundaries,41 usurping the
powers of the executive and legislature.42 One of the important critique is that, if
the basic structure theory was upheld, “every amendment made by the Parliament
would be subject to judicial approval on the question whether it damages the core
of an essential feature or not… and it is up to the Supreme Court and High Courts
either to validate or invalidate the amendment. It is a step towards the ‘Government
RI-XGJHV¶DVWKH¿QDOVD\UHVWVZLWKWKHMXGJHVRIWKH6XSUHPH&RXUWQRWZLWKWKH
Parliament.43

The criticism of P.K.Tripathi was also in the same view when he wrote “the
people and the Parliament will never have to worry about what the Constitution
ought to be. The Court will do it for them… The Court will not only play the role of
the opposition in criticizing all proposed legislations concerning socio-economic
policies, but it will be above to wipe out legislation which does not favour. In fact
it will govern the country in regard to routine matters which might be left to the
Parliament and the Cabinet.44

9. Application of Basic Structure theory in Appointment of Judges of Higher


Courts

When it comes to the matter pertaining to the appointment of Supreme


Court judges under NJAC, it is really an interesting part to discuss how all three
organs of the Government have taken decisions without any rationality. When the
basic structure doctrine was evolved by majority of the judges in Keshavanada
Bahrathi’s case, Judges who were in the Majority group had to face situations

௘
R. Dhavan, Supreme Court and Parliamentary Sovereignty’ New Delhi Sterling Publisher, 1976 cited in Sudhir
Krishnaswamy ‘Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine, Oxford
University Press, p. xvi.
௘$6KRXULH&RXUWVDQGWKHLUMXGJPHQWV3URPLVHV3UHUHTXLVLWHV&RQVHTXHQFHV1HZ'HOKL5XSD &R
42

pp 399-421 cited in Sudhir Krishnaswamy ‘Democracy and Constitutionalism in India: A Study of the Basic
Structure Doctrine, Oxford University Press, p. xvi .
௘Idid at 440.
43

௘ &LWHG E\ 3UDVDG $QLUXGK ³Dynamic of the Basic Structure Theory”, Law 1978, Vol.10, No.10. 199
44

(October, 1978).

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KLE Law Journal 86

of humiliation and while appointing as chief justice of India after Justice S.M.
Sikri’s retirement (Former CJ of Supreme Court). Justices J.M. Shelat, K.S.Hegde,
A.N. Grover, though they posses seniority, government was not appointing any
one among the three as chief justice of India, because these three judges were also
responsible for upholding the doctrine of basic structure. The three superseded
judges were a party to the majority opinion of the historic Keshavananda Bharti
case which held that the Parliament’s right to amend the Constitution did not include
the right to amend, abrogate or destroy the basic structure of the Constitution.
This judgement was delivered on the eve of superseding of judges. Needless to
say, Justice A.N. Ray agreed with the minority view which upheld Parliament’s
supremacy to amend the Constitution. Finally, Executive appointed A.N Ray
as Chief Justice of India in 1973, violating the Constitutional conventions i.e.,
seniority in case of appointing CJI was considered as darkest day in the history of
the Constitution.

In another incident, proclamation of Emergency on June 26, 1975 was an


attempt to destroy Indian democracy. While a large section of the Indian judiciary
decided to resist the onslaught on democratic institutions like the press and judiciary,
a section of the Supreme Court surrendered. The unanimous verdict of nine High
Courts relating to Habeas Corpus-that Article 21 is not the sole repository of life
and liberty and that a detainee has a right of Habeas Corpus during the emergency-
was reversed by a 4:1 verdict of the Supreme Court. The High Courts displayed
courage whether it was on the matter of a detainee’s right of medical treatment or
his interviews with his relatives, or the right of a lawyers’ association to organise
a meeting, or to stay a High Court Judge’s arbitrary transfer. The Supreme Court,
however, showed subservience in the Habeas Corpus case45. Justice Khanna and

45
௘ &KLHI-XVWLFH$15D\VDLG³7KHUHLVQRUHFRUGRIDQ\OLIHRIDQLQGLYLGXDOEHLQJWDNHQDZD\HLWKHULQRXU
country during Emergency or in England or America during the emergency in their countries. It can never be
reasonably assumed that such a thing will happen. Some instances from different countries were referred to
by some counsel for the respondents as to what happened there when people were murdered in gas chambers
or people were otherwise murdered. Such instances are intended to produce a kind of terror and horror and are
abortive in character. People who have faith in themselves and in their country will not paint pictures of diabolic
distortion and mendacious malignment of the governance of the country.”
Justice Y.V. Chandrachud expressed his optimism by writing that “counsel after counsel expressed the fear that
during the Emergency, the executive may whip and strip and starve the detainee and if this be one’s judgement
even shoot him down. Such misdeeds have not tarnished the record of free India and I have a diamond bright,
diamond hard hope that such things will never come to pass.”
Justice M.H.Beg said in his judgement. “I do not think that it is either responsible advocacy or the performance
of any patriotic or public duty to suggest that powers of detention are being misused in the current emergency”.

Published in Articles section of www.manupatra.com


KLE Law Journal 87

other judges of various high courts who displayed courage were punished for their
independent views. Fourteen judges of high courts who were party to various
judgements, who were against the government, were transferred from one high
court to another without their consent. Executive prepared a list of 52 inconvenient
judges. Proposals were mooted for the establishment of a superior council over
the judges. Upon the retirement of Justice A.N. Ray, the next senior most judge,
Justice H.R. Khanna, was denied his right to become the Chief Justice of India.
Justice R.N. Aggarwal and Justice U.R. Lalit, who were additional judges of the
'HOKLDQG%RPED\+LJK&RXUWVUHVSHFWLYHO\ZHUHQRWFRQ¿UPHG46

Thereafter, issue pertaining to primacy with respect to appointment of judges


of Supreme Court was discussed in S.P. Gupta v. Union of India47, S.C. Advocates
on Record Association v. Union of India48 and In re: Presidential Reference.49
Finally, in S.C. Advocates on Record Association v. Union of India50, the Supreme
Court declared that the Constitution (Ninety-ninth Amendment) Act, 2014 is
unconstitutional. On the basis of the conclusions given by Hon’ble judges in

Justice Chandrachud expressed his optimism by writing that “counsel after counsel expressed the fear that during
the Emergency, the executive may whip and strip and starve the detainee and if this be one’s judgement even
shoot him down. Such misdeeds have not tarnished the record of free India and I have a diamond bright, diamond
hard hope that such things will never come to pass.”
Justice P.N. Bhagwati agreed with the majority and said, “The apprehensions and fears voiced on behalf of the
detainees may not altogether be ruled out. It is possible that when vast powers are vested in the executive, the
exercise of which is immune from judicial scrutiny, they may sometimes be abused and innocent persons may
be consigned to temporary detentions. But merely because a power may sometimes be abused is no ground for
denying the existence of the power. All power is likely to be abused I have always leaned in favour of upholding
personal liberty, for I believe it is one of the most cherished values of mankind. Without it life would not be worth
living. It is one of the pillars of free democratic society. Men have laid down their lives at it’s altar in order to
secure it, protect it and preserve it. But I do not think that it would be right for me to allow my love for personal
liberty to cloud my vision or to persuade me to place on relevant provision of the Constitution a construction
which its language cannot reasonably bear.”
46
௘KWWSZZZSXFORUJIURPDUFKLYHVMXO\MXGLFLDU\KWP
$,56&WKH¿UVWMXGJH¶VFDVH S.P.Gupta v. Union of India AIR 1982 SC 149) gave the primacy to
௘

the executive in appointments to the higher judiciary, declaring that the advice of the CJI’s recommendation on
judicial appointments and transfers can be refused for “cogent reasons.”
௘ $,5  6&  WKH PDMRULW\YHUGLFW JDYH EDFN &-,¶V SRZHU RYHU MXGLFLDODSSRLQWPHQWVDQG WUDQVIHUV ,W
48

says the CJI only need to consult two senior-most judges. Court held that the role of the CJI is primal in nature
because this being a topic within the judicial family, the Executive cannot have an equal say in the matter, the
verdict reasoned. However, confusion prevails as the CJIs start taking unilateral decisions without consulting two
colleagues. The President is reduced to only an approver.
49
௘ 6SHFLDO5HIHUHQFH1RRI$,56&7RFODULI\WKHSRVLWLRQWKHWKHQ3UHVLGHQW.51DUD\DQDQ
sought a reference from the SC in the third judge’s case (Special Reference No.1 of 1998 AIR 1999 SC 1), the
Supreme Court laid down that the CJI should consult with a plurality of four senior-most Supreme Court judges
to form his opinion on judicial appointments and transfers. The crux of the second and third judges’ case, is that
the Judiciary should have primacy.
50
௘6upreme Court Advocates-on-Record Association v. Union of India (Writ Petition (C) No.83 of 2015).

Published in Articles section of www.manupatra.com


KLE Law Journal 88

their respective judgments it can be said that the 2014 amendment is being struck
down as it is against the principles of ‘separation of powers’ and ‘independence of
judiciary’ and thus violative of the basic structure of the Constitution.

Let us examine the role of legislature, executive and judiciary with respect
to appointment of judges of the Supreme Court. Because, Constitution gave the
primacy to the executive in appointments to the higher judiciary, they violated
constitutional conventions in appointing chief justice of India twice in 1973 and
1977. As a result, after 1993, Judiciary adopted the method of Collegium system
which does not have any constitutional basis or mandate from 1993 to 2014;
even the Parliament did not make any attempt to constitutionalise the Collegium
system. Finally, in 2014, the NDA government introduced the Constitutional
(121st Amendment) Bill, which was subsequently passed by both houses of the
3DUOLDPHQWUDWL¿HGE\VWDWHOHJLVODWXUHVDQGDVVHQWHGE\WKH3UHVLGHQW1-$&
Act 2014 and the Constitutional Amendment Act came into force from 13 April
2015. By this NJAC case The Constitution (Ninety-ninth Amendment) Act,
2014 and The National Judicial Appointments Commission Act, 2014 have been
declared null and void by the court which is the issue in hand.51

-XGLFLDU\QXOOL¿HGWKH$FWRI1-$&ZKLFKLVDJDLQVWWKHSULQFLSOHVRIµVHSDUDWLRQ
of powers’ and violative of the basic structure of the constitution. But, Judiciary
instead of declaring the serious attempt of the Parliament as unconstitutional,
they could have amended in the composition of NJAC itself while pronouncing
judgement. Further, If NDA government had incorporated the recommendations
of Venkatachaliah Commission,52 judiciary might not have declared NJAC Act, is
XQFRQVWLWXWLRQDO$WSUHVHQWWKH([HFXWLYHLVQRWVKRZLQJWKHLULQWHUHVWLQ¿OOLQJ
vacancies of post in higher judiciary which is really a great threat to the democracy.
&RQÀLFW EHWZHHQ MXGLFLDU\ DQG H[HFXWLYH ZLWK UHVSHFW WR DSSRLQWPHQW RI MXGJHV

௘
http://www.legallyindia.com/views/entry/njac-or-collegium-the-need-of-an-ideal-system-for-appointments-to-
the-higher-judiciary.
௘ ,Q  WKH 9HQNDWDFKDOLDK &RPPLVVLRQ ZDV VHW XS E\ 1'$ JRYHUQPHQW WR UHYLHZ WKH ZRUNLQJ RI WKH
52

constitution. In its report the commission recommended the formulation of a judicial commission comprising of:
(1) The Chief Justice of India: Chairman
(2) Two senior most judges of the Supreme Court: Member
(3) The Union Minister for Law and Justice: Member
(4) One eminent person nominated by the President after consulting the Chief Justice of India: Member.

Published in Articles section of www.manupatra.com


KLE Law Journal 89

has made democracy in danger. In action of the Executive with respect to Non-
appointment of judges in lower and higher judiciary within stipulated time leads,
not only to violation of basic rights of an individual but it also affects to ensure
Centre- State relations.

10. Conclusion

Finally, the author opines that if framers had inserted express clause under
Constitution of India regarding limitation of amending power of the Parliament
under Art.368 itself and provisions for agrarian reforms and had not incorporated
right to property in the list of fundamental right in the original constitution itself ,
there would not have been a situation of introducing this basic structure doctrine
and very importantly, if the Parliament had exercised its amending power without
disturbing the Supremacy of the Constitution in the case of Ninth Schedule,
judiciary would not have made any attempt to propound the doctrine of basic
structure. Violating constitutional conventions regarding appointment of the
chief justice of India by the Executive and applying application of basic structure
doctrine for all cases as a general rule including appointment of judges by judges
are against the theory of separation of power. Therefore, author suggests that:

ƒ All three organs of the government should work within the frameworks of
the Constitution to uphold constitutional supremacy.

ƒ There is a need to incorporate some important features expressly by


amending Article 368 of the Constitution.

ƒ Recognition of subject matters as basic structure should be decided by


constitutional bench consisting more than 10 judges in an exceptional
cases.

Published in Articles section of www.manupatra.com

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