Why Uncertainty Still Surrounds the Birth of the 'Basic Structure Doctrine'

Subsequent judgments ritualistically note that the Supreme Court limited parliament's amending power by declaring in 1973 that the constitution's basic structure was out-of-bounds. Yet, the actual ratio in Kesavananda Bharati remains elusive.

This is the second article in a six-part series on the basic structure doctrine – which the Supreme Court of India propounded in 1973 when it said there are features of the constitution which are unamendable by parliament under any circumstances. The Wire is revisiting the doctrine as various aspects of it figure in several important cases currently before the apex court.

Also read:  Part I / Part III / Part IV / Part V / Part VI


For all the centrality it occupies in debates on Indian law, the lawyer and jurist T.R. Andhyarujina, suggested in his 2013 book, The Kesavananda Bharati Case: The Untold Story of Struggle for Supremacy by Supreme Court and Parliament, that there is reason to doubt whether the majority of the 13-judge Kesavananda bench actually held that the basic structure of the constitution was inviolable.

Going by the written judgments, there was certainly no majority for any implied limitation on parliament’s amending power. The bench was split 7-6 and though Justice H.R. Khanna was in majority, his concurring judgment had – on semantic grounds – rejected the view supported by the other six that there were implied limitations in Parliament’s amending power.

However, according to Andhyarujina, a stray sentence in Justice Khanna’s conclusions – “Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution” – allowed Chief Justice S.M. Sikri to draft a note titled “View by the Majority” and pass it around for signature to the other judges on the bench on April 24, 1973, the last day of his tenure as CJI, when the judgment was delivered.

Nine judges, including two from among those who had actually dissented, signed the note. But more on that later.

Justice Y.V. Chandrachud said that he signed the ‘view by the majority’ note to accommodate Chief Justice Sikri, because the latter was due to retire, and there were constraints of time. Justice Y.V. Chandrachud had written his judgment in favour of parliament’s unlimited power to amend the constitution. He later said he was entitled to change his views. Justice Chandrachud admitted in his judgment that there had not been enough time, after the conclusion of the arguments, for an exchange of draft judgments amongst them. He had had the benefit of knowing fully the views of only four of the remaining 12 judges on the bench. He deeply regretted his inability to share the views of Chief Justice Sikri and of Justice Hegde on some of the crucial points.

Former Chief Justice of India Y.V. Chandrachud. Photo: PIB

According to Andhyarujina, the basic structure doctrine sets a highly nebulous and subjective standard. It gives a vital power to the judiciary, which was never contemplated by the constitution makers, he told me in an interview.

He was of the view that the status of the “View by the Majority” note was dubious because it was a hurriedly prepared paper passed around for signatures just before the judgment was delivered, and there was no judges’ conference preceding the delivery of the judgment, as was the convention.

Despite being a critic of the basic structure doctrine, however, he conceded that it has exerted a salutary check and control on parliament’s amending power.

Also read: Eight Cases That Will Test Whether ‘Basic Structure Doctrine’ Can Safeguard India’s Democracy

Former Chief Justice of India, S.H. Kapadia began one of his judgments in 2010 saying, “Some doctrines die hard.  That certainly is true of the doctrine of basic structure of the Constitution”.

In the case before him, the Constitution 34th Amendment Act, 1974 inserting the Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969 in the Ninth Schedule to the constitution, was under challenge.

The Ninth Schedule, under Article 31B, is a repository of Acts and Regulations which cannot be challenged in a court of law as inconsistent with any of the rights guaranteed under Part III of the constitution. But the Supreme Court has held that all constitutional amendments, by which additions were made to the ninth schedule on or after April 24, 1973, will be valid only if they do not damage or destroy the basic structure of the constitution.

In the case  Justice Kapadia was considering (Glanrock Estate (P) Ltd v The State of Tamil Nadu, September 9, 2010), the court ruled that as the Janmam Act (Act 24 of 1969) was put in the Ninth Schedule in 1974, the Act received immunity from Article 31(2) with retrospective effect. Under Article 31(2), as it originally stood, no property could be acquired for public purposes unless the law provided for compensation. The 44th Amendment (1978) removed Article 31 along with Article 19(1)(f) guaranteeing the right to property, and a new provision, Article 300-A was added, to provide that no person shall be deprived of his property save by authority of law.

While overarching constitutional principles such as rule of law, egalitarian equality, separation of powers etc. would fall outside the amendatory power under Article 368, any petitioner challenging an amendment by invoking the test of basic structure must establish that one of those principles has been violated, the Justice Kapadia clarified in Glanrock Estate (P) Ltd.

Principles of equality, for instance, cannot be completely taken away so as to leave citizens in a state of lawlessness, but it was pointed out that the facets of the principle of equality can always be altered, especially to carry out the directive principles of state policy.

In an article written in 1974, in the immediate aftermath of the Supreme Court’s landmark judgment in the Kesavananda Bharati case, the legal scholar Upendra Baxi noted that even a limited analysis of what the court decided is as delicate and difficult as that directed to the unravelling of the significance of the smile of Mona Lisa. Baxi is also credited with the view that the basic structure doctrine was useful to apply the brakes, when the engine of amending power threatened to overrun the constitution.

What Kesavananda Bharati was actually about

The Kesavananda Bharati case dealt with the scope and width of Parliament’s amending powers. In Golaknath v State of Punjab in 1967, an 11-judge constitution bench decided, with a majority of 6:5 that parliament could not through amendment, abrogate or abridge  fundamental rights. Parliament enacted the 24th amendment to the constitution in 1971 to nullify Golaknath.

Also read: Past Continuous: Two Judgements That Held the Constitution Above Parliament

But even before that, Kesavananda Bharati, in March 1970, challenged the attempts of the government to acquire under the Kerala Land Reforms Act, 1963, land belonging to his mutt. His writ petition in the Supreme Court sought to defend the fundamental right of religious institutions to manage their own property without undue restrictions by the state. Meanwhile, the 29th Amendment (1972) added two Kerala Land Reforms Amendment Acts (1969 and 1971) to the Ninth Schedule. Kesavananda subsequently challenged this amendment too. His petition was heard together with similar challenges to other amendments, and Kesavananda became the lead petitioner by virtue of having filed his petition first.

The Supreme Court had only 15 judges when the 13-judge bench heard the case.  The arguments before the court lasted 66 days. There were 11 judgments. The process of culling out the ratio was not easy. The note on the “View by the Majority” confounded the ratio, though it had no legal validity.

The judges who held that parliament cannot amend the basic structure included Chief Justice S.M.Sikri, and Justices J.M. Shelat, K.S. Hegde, A.N. Grover, P. Jaganmohan Reddy, and A.K. Mukherjea. They were united in their stand that there were implied limitations on parliament’s amending power. They had their own notions of what the basic or essential features of the constitution were and which could not be touched by parliament.

Subtle difference between Justice Khanna and the majority

Justice H.R. Khanna, who joined them, rejected the concept of implied limitations on parliament’s amending power. But he argued that any amendment should not leave the existing constitution unrecognisable.

Justice Hans Raj Khanna. Photo: Wikimedia Commons, CC BY-SA

As a senior advocate of the Supreme Court once explained to me, the distinction between Justice Khanna and the remaining six Judges on the majority side could be understood better by the metaphor of an obese person wanting to undergo bariatric surgery to trim his potbelly. To the implied limitation theorists (led by Justice Sikri himself) even this surgery would have been anathema as they would deem it as damaging the basic structure of that patient. The semantic theorists (represented by Justice Khanna alone), however, would have approved it, provided the surgery was not accompanied by a facial implant or a sex change. He was a “semantic” theorist because he held that the word “amendment” ipso facto overruled dismemberment of the existing constitution.

The Justice Sikri-led six judges held that parliament could not amend the constitution’s  fundamental rights, because they are part of the basic structure. Justice Khanna, however,  did not say so, and singled out the right to property, which he said, was not beyond the amending power of parliament. The right to property later ceased to be a fundamental right, and became an ordinary right. Justice Khanna, however, clarified in another judgment (Smt. Indira Nehru Gandhi v Raj Narain) that he did hold in Kesavananda that fundamental rights are beyond parliament’s amending power. He contended that the fact that he singled out the right to property meant that other fundamental rights are unamendable.

But this ‘clarification’ in a later judgment about his own judgment in Kesavananda is not considered legally binding, while determining the ratio of Kesavananda. If a judgment is to be analysed for its meaning, it can only be done by another court and not by the author of the judgment.

Interpreting the ratio in Kesavananda

In the note on the “View by the Majority”, the Sikri-led judges, along with two of the pro-government judges, namely, Justices Y.V.Chandrachud and D.G. Palekar, merged their views with that of Justice Khanna. Although the View by the Majority was signed by nine judges including Justice Khanna, the ratio of the judgment is considered as 7:6 in terms of the conclusions in the 11 judgments authored by the individual Judges, for themselves and on behalf of their brother judges.

Also read: Article 370: What the SC Will Have to Consider While Examining the Centre’s Move

According to the Supreme Court’s judgment in the Minerva Mills case (1980), there were five majority judgments in Kesavananda, which were delivered by Chief Justice Sikri, Justices Shelat and Grover; Justices Hegde and Mukherjea; Justice Jaganmohan Reddy; and Justice Khanna. Justice Khanna in Kesavananda broadly agreed with the views of the six judges forming the majority, and held that the word ‘amendment’ postulated that the constitution must survive without loss of its identity, which meant that the basic structure or framework of the constitution must survive any amendment of the constitution. Thus according to Justice Khanna, although it was permissible for parliament, in exercise of its amending power, to effect changes so as to meet the requirements of changing conditions, it was not permissible to touch the foundation or to alter the basic institutional pattern.

The Minerva Mills bench had this to say (as per the judgment authored by the then Chief Justice Chandrachud) about the “Note on the View by the Majority” signed by nine judges in the Kesavananda case:

“Paragraph 2 of the summary reads to say that according to the majority, “Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution”.  Whether or not the summary is a legitimate part of the judgment, or is per incuriam for the scholarly reasons cited by authors, it is undeniable that it correctly reflects the majority view.”

In his separate and part differing judgment in the Minerva Mills case, Justice P.N. Bhagwati said that finding out the ratio in Kesavananda case was “a difficult and troublesome question”. He said “The View by the Majority” had no legal effect at all and was not the law declared by the Supreme Court under Article 141.”

Justice Bhagwati was of the view that once the judgments were delivered, the nine judges (who had signed the View by the Majority) as also the remaining four became functus officio and thereafter had no authority to cull out the ratio of the judgments. What was the law laid down was to be found in the judgments and that task would have to be performed by the court before whom the question would arise as to what is the law laid down in Kesavananda Bharati case, he had held.

Former CJI P.N. Bhagwati. Photo: PTI

About the nine judges signing the “View by the Majority”, Justice Bhagwati said they did so without hearing any arguments about what was the majority view.  “This was a rather unusual exercise, though well-intentioned”, he observed.  He also doubted the accuracy of the View by the Majority when by their own admission, the judges had little time to exchange draft judgments amongst them, and didn’t have the benefit of knowing fully the views of others.

The court’s stamp of approval to the doctrine of basic structure in Indira Gandhi v Raj Narain – when it struck down the 39th amendment to the constitution introduced by Indira Gandhi to shield the election of the prime minister from judicial review – and Minerva Mills gave it legitimacy. Upendra Baxi described Chandrachud’s transformation from his dissent in Kesavananda to his majority opinion affirming the doctrine in Minerva Mills and Waman Rao v Union of India as the ‘pilgrim’s progress’. This characterisation invited a rebuke from another academic, who said change of convictions is not unusual among constitutional commentators.

Also read: Despite What Harish Salve Says, We Can’t Dismiss the Legal Challenge to the CAA

According to Andhyarujina, subsequent judgments ritualistically repeated that Kesavananda Bharati had held that the amending power of parliament was limited by the basic structure of the constitution without examining whether there was indeed a ratio to this effect from the eleven judgments in the case.

Historian Granville Austin said in his book, Working a Democratic Constitution, that the nine judges who signed the “View by the Majority” performed an act of statesmanship, even of legerdemain. Andhyarujina adds in his book that acts of statesmanship, much less of legerdemain, are not judicial verdicts. “They only try to ingeniously get over a difficult situation for a judicial verdict which was what the “View by the Majority” did”, he wrote.

Another 13-judge bench constituted by the then Chief Justice A.N. Ray in 1975 to reconsider Kesavananda Bharati was dissolved by himself on the third day of the hearing, when he realised that many of the judges on the bench were not inclined to hear it in the absence of a suit before the bench, as eloquently argued by the senior counsel, N.A. Palkhivala. Justice Krishna Iyer later appeared to regret that a casual conversation he had with Justice K.K. Mathew, who was also on the bench, was twisted and conveyed to Chief Justice Ray that many judges were rallying around Justice Iyer to back Palkhivala’s view that there was no need to reconsider Kesavananda Bharati.

Notwithstanding the uncertainty surrounding the birth of the doctrine, its subsequent gaining of respect within the judiciary over the years points to how it has evolved as an interpretative tool.