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Behind the 'basic structure' doctrine

Shraddha Yadav

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Volume 18 ­ Issue 09, Apr. 28 ­ May 11, 2001
India's National Magazine
from the publishers of THE HINDU

ANALYSIS

Behind the 'basic structure' doctrine

On India's debt to a German jurist, Professor Dietrich Conrad.

A. G. NOORANI
Table of
Contents ON April 24, 1973, a Special Bench comprising 13 Judges of the Supreme Court
of India ruled by a majority of 7-6, that Article 368 of the Constitution "does not
enable Parliament to alter the basic structure or framework of the Constitution"
(Kesavananda Bharati vs. The State of Kerala; AIR 1973 S.C. 1461, (1973) 4
SCC 225). It, however, overruled a decision of a Special Bench of 11 Judges, by
a majority of 6-5, on February 27, 1967, that "Parliament has no power to amend
Part III of the Constitution so as to take away or abridge the fundamental rights"
(I.C. Golak Nath & Ors. vs. The State of Punjab & Ors.: AIR 1967 S.C. 1643,
(1967) 2 SCJ 486).

Instead, the court propounded what has come to be known as "the basic structure"
doctrine. Any part of the Constitution may be amended by following the
procedure prescribed in Article 368. But no part may be so amended as to "alter
the basic structure" of the Constitution. It is unamendable.

As in 1968, the ruling widened the political divide. The very next day, on April
25, 1973, Indira Gandhi's government struck a blow at the independence of the
judiciary - from which it has not recovered fully even now, a quarter century
later. It superseded three most senior Judges of the Supreme Court and appointed
Justice A.N. Ray as Chief Justice of India. The favourite proved his worth during
the Emergency.

Only a couple of years later, the majority ruling was vindicated during the
Emergency when Indira Gandhi's appeal against the judgment of Justice
Jagmohan Lal Sinha of the Allahabad High Court - unseating her in the Lok
Sabha for corrupt practices - was decided by the Supreme Court. She had taken
care, meanwhile, to alter the election law retrospectively on the points on which
she had lost. Worse, by means of the 39th Amendment to the Constitution,
Article 329A was inserted in it to wipe out the Allahabad judgment, the election
petition and the law relating to it. The right to dispute the validity of her election
was taken away by not providing an alternative forum. A legislative enactment
validated an election. It was successfully challenged in the light of the 1973
ruling. Article 329(4) was struck down as being violative of the principle of free
elections and the rule of law. (Indira Nehru Gandhi vs. Raj Narain 1975 (Supp.)
SCC 1).

This ruling spared the country much worse that was in store. Bill No. XVIII of
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1975, gazetted on August 9, 1975, sought to enact the 41st Amendment to the
Constitution. Immunity against criminal proceedings of the widest possible
amplitude was proposed to be conferred on the Prime Minister by amending
Article 361. The Bill was dropped, but it won converts to the 1973 ruling. The
Supreme Court of India has since affirmed "the basic structure" doctrine in a
series of rulings without demur. No one argued any longer that no other court had
struck down a constitutional amendment by invoking that doctrine. For, in none
other had such abuses been attempted.

What is little known in India is that this doctrine has now spread far and wide
beyond its frontiers. In the 1950s and 1960s, Part III of the Constitution,
embodying the fundamental rights, was emulated in the Constitution of many a
Commonwealth country, including Pakistan's in 1956. In the last two decades, the
Supreme Court's achievement has been acclaimed and adopted by courts in
foreign lands.

THERE is, sadly, little acknowledgment in India of that debt we owe to a

distinguished German jurist and a scholar steeped in other disciplines beyond the
confines of law - Professor Dietrich Conrad, formerly Head of the Law
Department, South Asia Institute of the University of Heidelberg, Germany.

In Golak Nath's case, the doctrine of any implied limitations on Parliament's

power to amend the Constitution was not accepted. The majority felt that "there is
considerable force in this argument" but thought it unnecessary to pronounce on
it. "This question may arise for consideration only if Parliament seeks to destroy
the structure of the Constitution embodied in provisions other than in Part III of
the Constitution."

The argument of implied limitations had been advanced at the Bar by M. K.

Nambyar, one of India's leading constitutional lawyers. Few people knew then
that he owed the argument to Professor Conrad. In February 1965, while on a
visit to India, Conrad delivered a lecture on "Implied Limitations of the
Amending Power" to the Law Faculty of the Banaras Hindu University. A paper
based on the subject was sent to Prof. T. S. Rama Rao in Madras for his
comments. Nambyar's attention was drawn to this paper which he read before the
Supreme Court, though with little result.

Prof. Conrad's lecture, delivered in February 1965, showed remarkable

perceptiveness besides deep learning. He observed:

"Perhaps the position of the Supreme Court is influenced by the fact that it has
not so far been confronted with any extreme type of constitutional amendments. It
is the duty of the jurist, though, to anticipate extreme cases of conflict, and
sometimes only extreme tests reveal the true nature of a legal concept. So, if for
the purpose of legal discussion, I may propose some fictive amendment laws to
you, could it still be considered a valid exercise of the amendment power
conferred by Article 368 if a two-thirds majority changed Article 1 by dividing
India into two States of Tamilnad and Hindustan proper?

"Could a constitutional amendment abolish Article 21, to the effect that forthwith
a person could be deprived of his life or personal liberty without authorisation by

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law? Could the ruling party, if it sees its majority shrinking, amend Article 368 to
the effect that the amending power rests with the President acting on the advice of
the Prime Minister? Could the amending power be used to abolish the
Constitution and reintroduce, let us say, the rule of a moghul emperor or of the
Crown of England? I do not want, by posing such questions, to provoke easy
answers. But I should like to acquaint you with the discussion which took place
on such questions among constitutional lawyers in Germany in the Weimar
period - discussion, seeming academic at first, but suddenly illustrated by history
in a drastic and terrible manner."

A more detailed exposition of Prof. Conrad's views appeared after the judgment
in Golak Nath's case (Limitation of Amendment Procedures and the Constituent
Power; Indian Year Book of International Affairs, 1966-1967, Madras, pp. 375-
430).

In 1973, as in 1968, the Bench was split evenly. Six of the Justices (Chief Justice
S.M. Sikri, Justices J.M. Shelat, A.N. Grover, K.S. Hegde, S. Mukherjee and P.
Jagan Mohan Reddy) were of the view that Article 368 does not enable
Parliament to abrogate or take away fundamental rights, including the right to
property, because there are in Article 368 inherent or "implied limitations" in that
it does not empower Parliament to alter or destroy the "basic structure" of the
Constitution. Six other Justices (Ray, M.H. Beg, D.G. Palekar, S.N. Dwivedi,
K.K. Mathew and Y.V. Chandrachud) held that there were no limitations to the
power of constitutional amendment beyond those which are contained in Article
368, and Parliament was competent to amend any provision of the Constitution.

It was the judgment of Justice Khanna that tilted the balance. He rejected the
theory of implied limitations but held that the word "amendment" itself suggested
the limitations. "The power of amendment under Article 368 does not include the
power to abrogate the Constitution nor does it include the power to alter the basic
structure or framework of the Constitution. Subject to the retention of the basic
structure, the power of amendment is plenary and includes within itself the power
to amend the various articles of the Constitution, including those relating to
fundamental rights as well as those which may be said to relate to essential
features."

He, however, approved as "substantially correct" the following observations by

Prof. Conrad: "Any amending body organised within the statutory scheme,
howsoever verbally unlimited its power, cannot by its very structure change the
fundamental pillars supporting its constitutional authority."

It was no mere coincidence that a German jurist had thought of implied

limitations on the amending power. Article 79(3) of the Basic Law of the Federal
Republic of Germany, adopted on May 8, 1949, six months before the drafting of
India's Constitution ended, bars explicitly amendments to provisions concerning
the federal structure and to "the basic principles laid down in Articles 1 and 20
(on human rights and the "democratic and social" set-up). The Germans learnt
from the bitter experience of the Nazi era. The framers of the Constitution of
India refused to look beyond the Commonwealth countries and the United States.

It is, again, to Prof. Dietrich Conrad that we owe a mass of information on the
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spread of the "basic structure" doctrine in a lecture on "Basic Structure of the

Constitution and Constitutional Principles," delivered at the Indian Law Institute
in New Delhi on April 2, 1996. It was published in Law and Justice, a journal of
the United Lawyers Association, New Delhi (Vol. 3, Nos. 1-4; pages 99-114).

Prof. Conrad aptly remarked that "in this free trade of constitutional ideas the
Indian Supreme Court has come to play the role of an exporter. This holds true
with respect to at least two major innovations introduced by the court"; namely,
public interest litigation and "the basic structure doctrine". The doctrine was
adopted by the Supreme court of Bangladesh in 1989 expressly relying on the
reasoning in the Kesavananda case of 1973 (Anwar Hossain Chowdhary vs.
Bangladesh; 41 DLR 1989 App. Div. 165, 1989 BLD (Spl.) 1).

PAKISTAN has so far declined to follow suit, though there have been significant
shifts in that direction. Prof. Conrad points out that in 1963 in Fazlul Quader
Chowdry vs. Mohd. Abdul Haque, the Pakistan Supreme Court had introduced
the expressions "fundamental" or "essential features of the Constitution",
"fundamentals of the Constitution" or "essential features of the Constitution",
"fundamentals of the Constitution", "basic structure of government" and so on to
describe the inherent limitations of a presidential power to remove difficulties in
bringing the Constitution into operation. "This language was used in order to
distinguish the President's power of mere adaptation from wider powers of
constitutional amendment, holding that a change, e.g. 'essential features', went
beyond adaptation and could only be done by amendment. Nevertheless, soon
thereafter it was noted in an Indian case in the context of the amending power
itself." (Justice J. R. Mudholkar in Sajjan Singh vs. The State of Rajasthan, AIR
1965 SC 845 at p. 862). From there to Kesavanda was a short step. Dr. Kamal
Hossain, distinguished counsel and former Foreign Minister of Bangladesh,
pointed out to the Bangladesh Supreme Court in 1989 that the doctrine
"originated from a decision of Dhaka High Court".

Prof. Conrad added: "Recently, in the famous case on judicial appointments, the
Pakistan Supreme Court has come very close to recognising a "basic structure"
limitation on the power of amendment. In fact it is amazing to see how they could
arrive at certain conclusions and still evade an express recognition of the
doctrine" (Al-Jehad Trust vs. Federation of Pakistan; PLD 1996 SC. 367).

Prof. Conrad concluded his tour d'horizon by saying that "the concept of a basic
structure giving coherence and durability to a Constitution has a certain intrinsic
force which would account for its appearance in various jurisdictions and under
different circumstances. It remains to take a closer look at some implications of
this theory as they appear from comparative constitutional experience.

In this respect a very interesting development is going on in India bringing Indian

constitutional philosophy into closer rapport with European antecedents. This
development is the emergence of constitutional principles in their own right -
being something more than a summary or a heading of particular provisions, and
possibly transcending their literal wording. It can be observed in the use recently
made of the basic structure doctrine in the Bommai case. Here the basic structure
concept was resorted to outside its original scope and function. No question of
constitutional amendment was involved in the case. But the Supreme Court held
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that policies by a State government directed against an element of the basic

structure of the Constitution would be a valid ground for the exercise of the
central power under Article 356, that is, the imposition of President's Rule.
Secularism was held to be such an essential feature of the Constitution and part of
its basic structure."

Prof. Conrad, one might add, is learned in India's history and Hindu philosophy
no less, besides constitutional law. He has written extensively on knotty issues of
Hindu law and Muslim law; notably on the Shah Bano case. At Heidelberg he has
been a guide, friend and philosopher to many a South Asian student.

There is a sad void in our academia. There is no institution which informs us of

legal developments in neighbouring countries. There is, however, one institution
in London which does just that and on a far wider scale, too. It is Interights, at
Lancaster House, 33 Islington High Street, London, NI 9LHO.

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