A Re-examination of the Basic Structure Doctrine

Written by  //  October 6, 2010  //  Law & The Judiciary  //  4 Comments

One of the most fundamental and equally ambiguous concepts that underlies Indian Constitutional Law is the basic structure doctrine. Tracing its origins to an opinion by Justice Mudholkar, receiving judicial recognition in Kesavananda Bharati and finally being cast in stone in Indira Gandhi v. Raj Narain, it is a doctrine that now forms the bulwark of the Indian Constitution. However, while there is no denying its significance (particularly given the history of its origins) the doctrine has always faced the very well-founded criticism of being ambiguous, and allowing the judiciary to tread on the toes of other branches of Government. In a recent decision, the Supreme Court seems to have assuaged some of these concerns, by reaffirming the significant yet narrow role the basic structure doctrine has to play in Indian constitutional adjudication ninja jump australia .

The facts of the Glanrock Estate v. Tamil Nadu, (the details of which are not necessary for the discussion here) concerned land reform legislation. By virtue of a constitutional amendment, a statute which had been held to violate Article 14 of the Indian Constitution was added to the Ninth Schedule. By such inclusion, the statute was put beyond the scope of judicial scrutiny, subject only to the basic structure challenge. It was this argument that was made by the petitioners- arguing that the amendment, adding a law violative of Article 14 to the Ninth Schedule, went against the basic structure of the Constitution and should be struck down. [This was also challenged as being in violation of the separation of powers under the Indian Constitution. However, this contention was rejected on the basis that there was no such direct assault on the judicial function, and the separation of powers model was in no way affected. This left only the Article 14 challenge standing.] On the face of it, this argument seems persuasive. The law was discriminatory and hence violative of Article 14; Article 14 has been held as being one of the basic features of the Constitution; by virtue of the amendment, the law was being given a new lease of life. These factors taken together made a strong case for the amendment being struck down as violative of the basic structure.inflatable abominable snowman

However, the Court rejected this contention- issuing a very important and, it is submitted, appropriate clarification regarding the scope of the basic structure doctrine. The Court noted that challenges to Constitutional amendments should be treated with far more circumspection than “ordinary law(s) of the land” (¶ 8, Justice Kapadia), going on to express its view on what the function of the basic structure doctrine is. In the words of the Court, “The  doctrine  of  basic structure is brought in as a window to keep the power of  judicial  review  intact  as  abrogation  of  such  a power would result in violation of basic structure” (¶ 8, Justice Kapadia). Thus, possibly influenced by the historical origins of the doctrine, the Court observes that its primary function is to safeguard the judicial review of legislation, and “overarching principle(s) in the Constitution” (¶ 8, Justice Kapadia). What then are these principles? The Court suggests that these are principles which, if changed, would require a large-scale rewriting of the Constitution (¶ 8, Justice Kapadia).

When an impugned  Act  creates  a  classification  without  any rational basis and having no nexus with the objects sought  to  be  achieved,  the  principle  of  equality before law is violated undoubtedly.  Such an Act can be declared to be violative of Article 14.  Such a violation  does  not  require  re-writing  of  the Constitution.  This would be a case of violation of ordinary  principle  of  equality  before  law. Similarly,  “egalitarian  equality”  is  a  much  wider concept.  It is an over-arching principle.

Admittedly, the Court goes on to elaborate a larger view of the principle of equality, suggesting that the amendment is not, in fact, a violation of ‘egalitarian equality’. It also observes that the “essence of the challenge” (¶ 6, Justice Kapadia) was in the context of the right to property, and that this right had been repeatedly diluted and enjoyed far from an exalted status in the Indian Constitutional framework. However, while this may make these observations obiter, they are still relevant, because of the Court’s repeated emphasis that the only function of the basic structure doctrine is “a constitutional limitation against parliamentary autocracy” (¶ 12, Justice Radhakrishnan). The right to equality does form a part of the basic structure, but only in its role as a facet of the rule of law. Thus, when the violation of the right to equality results in a breakdown of the rule of law, or the separation of powers, thus allowing the Parliament unbridled powers over governance and the Constitution, only then will the Court step in and strike down the actions of the Government.

What implications, if any, does this decision have for the future application of the doctrine? It was always accepted that not all fundamental rights form part of the basic structure. However, some rights like the right to equality and the right to life had been recognised as being more fundamental than other fundamental rights. This may have led one to believe that any law/amendment which violates these special rights also violates the basic structure of the Constitution. The Court has rejected this belief, holding that a mere violation does not suffice, unless the violation strikes at the rule of the law, the power of judicial review, or has the trimmings of Parliamentary autocracy. In other words, one may have thought earlier that the decision about whether a said amendment violates the basic structure is arrived at in two steps-

a)      Is the provision a part of the basic structure?

b)      Has the provision been violated?

Now, the Court has replaced (a) with the question- does the violation require a rewriting of the Constitution, or result in Parliamentary autocracy at the cost of judicial review? This change, though in most cases an inconsequential one, may go a long way towards narrowing down the application of the basic structure doctrine. Also, it may also please the critics of the doctrine, who see it as giving too much power to the judiciary as the protector of an undefined and unclear ‘basic structure’ of the Constitution. This is not to deny that ‘rule of law’, ‘judicial review’ and ‘Parliamentary autocracy’ can also be easily expanded. However, the decision, and the conservative stance adopted by the Court [a stance more than amply evidenced by Justice Kapadia’s opening line- “Some doctrines die hard.  That certainly is true of the doctrine of basic structure of the Constitution”], may just provide some fetters on the extent to which these inherently vague limitations on the powers of the Parliament may be interpreted expansively by the judiciary.

4 Comments on "A Re-examination of the Basic Structure Doctrine"

  1. Arghya October 7, 2010 at 5:05 am ·

    Hi Shantanu, wonderful post on a crucial area of the law. Thanks much. While I agree with the general tenor of the judgment seeking to limit rather than enlarge the scope of the basic structure doctrine, there are a few points I would like to make:
    1. It seems to me that (a) and (b) which were the tests to identify violations of the basic structure remain intact. The question you raised “does the violation require a rewriting of the Constitution, or result in Parliamentary autocracy at the cost of judicial review?” doesn’t logically replace (a) but can be seen more in the nature of (c), a third criterion to be satisfied.
    Second, as far as this test itself is concerned, I agree with the direction the Court tends towards (which is restrictive) but I think as a doctrine it is unhappily worded. Any amendment is technically rewriting of the Constitution and there should have been greater clarity on what rewriting entails. On merits, I also think ‘whether something amounts to rewriting’ or not is not a good test to judge basic structure violations and restrict the doctrine- instead, we must focus on elaborating what the provisions which constitute the basic structure are. Now admittedly, the second part of the test which talks about “result(ing) in Parliamentary autocracy at the cost of judicial review” does that. But again I fail to see how in this case, this test is not met. Constitutional Amendments to put offending statutes in the 9th Schedule are the classical examples of parliamentary autocracy at the cost of judicial review, aren’t they?

  2. Shantanu October 7, 2010 at 9:17 am ·

    Hi Arghya,

    Thanks for your comments. I am in partial agreement with both the points you make.

    As to the tests for determining whether the basic structure has been violated, I say ‘replace’ only because ‘does the violation require a rewriting of the Constitution, or result in Parliamentary autocracy at the cost of judicial review’ subsumes within it the question of whether the provision being violated forms a part of the basic structure. In other words, the Court is saying that the basic structure is that which, if amended, will require a rewriting of the Constitution or result in Parliamentary autocracy at the cost of judicial review. Hence, while you are right that the provision which is violated still does need to form part of the basic structure, the requirement as phrased by the Court includes this consideration.

    Secondly, I don’t think ‘rewriting’ is being used in a narrow sense. A quote by Justice Kapadia [para. 8] is particularly useful, where he observes that if principles such as judicial review or separation of powers are violated, it would “require changes to be made not only in Part III of the Constitution but also in Articles 245 and the three Lists of the Constitution resulting in the change of the very structure or framework of the Constitution”. I think this explains very clearly what was meant by ‘rewriting the Constitution’.

    As to the whether the inclusion of laws in the Ninth Schedule results in Parliamentary autocracy at the cost of judicial review, I would love to argue that it does, but unfortunately the law doesn’t favour that interpretation. What the Court seems to be saying is that individual cases of putting laws beyond the ambit of judicial review is fine (subject to the basic structure doctrine), but reserving to Parliament the absolute right to determine which laws shall be beyond judicial review is impermissible. Now, this may lead one to argue very persuasively that the very inclusion of the 9th Schedule in the Constitution is violative of the basic structure. However, much as there is strength in this argument, the judicial history of the inclusion makes a reconsideration of that question improbable. Thus, one is left only with the question- if the 9th Schedule itself is not violative of the basic structure, is including a particular law in it impermissible? The answer to that has to be in the negative, unless of course, the law strikes at one of the basic features of the Constitution, in which case, even including it within the 9th Schedule does not place it beyond judicial scrutiny.

  3. Shantanu October 7, 2010 at 9:19 am ·

    Also, Hat Tip for the case- Mihir Naniwadekar.

  4. Syeda nasrin, Bangladesh. February 10, 2011 at 8:21 am ·

    Basic structure is one of the fundamenal method for effectively check and balance of the 3 organs of state. Specially this is crucial in a country written constitution prevails and that constitution empower legislature to amend the constitution. It is a judicial safeguard against the capricious will of the majority autocratic democracy. It also acts as a safe guard against violation of human rights or individual liberty by an autocratic government.

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