CJI Bobde's View of Article 32 is Linked to Apex Court's Vacillation on Basic Structure Doctrine

How and when the court has used the doctrine in its judgments tells us a lot about the approach of the judiciary.

This is the fourth 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 II / Part III / Part V / Part VI


New Delhi: Chief Justice of India S.A. Bobde’s statement this week that the Supreme Court is keen on discouraging petitioners from resorting to Article 32 of the constitution  has drawn criticism from scholars and practitioners of law for the Article is considered one of the constitution’s basic features.

In L. Chandra Kumar v Union of India (1997), a seven judge bench said that the power of judicial review – vested in the high courts under Article 226 and in the Supreme Court under Article 32 – is an integral and essential feature of the constitution, constituting part of its basic structure. In paragraph 81, the court reiterated the view of Ambedkar – expressed during the constituent assembly debates – that Article 32 is the “heart” and “soul” of the constitution (see the draft Article 25 debate on December 9, 1948, paragraph 7.70.172).

If, as Arun Thiruvengadam suggests in his book, The Constitution of India: A Contextual Analysis, the basic structure doctrine has come to be one of the most momentous innovations of the Indian judiciary, CJI Bobde’s remark indicates a certain judicial hesitation, even unwillingness, to harness its full potential. In the past, the BSD has allowed Indian judges to adopt radical strategies of initiating public interest litigation, using methods such as the creative remedy of continuing mandamus (through which it can keep a case alive even after it has been decided, sometimes for decades, to ensure its implementation).  Not so anymore.

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

Basic structure as trigger

Contrary to popular belief about the basic structure doctrine having played a stellar role in safeguarding India’s democracy, evidence points to the Supreme Court’s reliance on it only in seven instances, since its birth, to strike down constitutional amendments.   They are: 

1. Kesavanand Bharati v State of Kerala (1973).

The 25th Amendment Act, 1971 had inserted Article 31-C to confer immunity on laws pursuant to Directive Principles from being held void on ground of inconsistency with  Articles 14, 19 and 31.  The Supreme Court, in this case, declared a sub-clause stating that ‘no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy’ unconstitutional.  Later, the 44th Amendment Act deleted Article 31 (compulsory acquisition of property) from the scope of Article 31-C, apart from Article 31 itself.

2. Indira Gandhi v Raj Narain (1975).

The Supreme Court struck down Clause 4 of the 39th Amendment Act, 1975, which inserted Articles 71(2) and 329A.  These Articles provided that disputes regarding the election of four high constitutional functionaries , namely, the president, vice-president, the prime minister and the speaker of the Lok Sabha should be adjudicated by whatever authority and procedure as provided by law, and that any court order, made before its commencement, declaring such an election to be void, should be deemed null and void.  Later, the 44th Amendment Act restored the original form of Article 71 and deleted Article 329A.

3. Minerva Mills v Union of India (1980)

In this case, the Supreme Court  struck down Section 55 of the 42nd Amendment Act, 1976, which added clauses (4) and (5) to Article 368.   Clause 4 provided that no amendment of the Constitution shall be called in question in any court on any ground.  Clause 5 provided that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution.

In the same case, the Supreme Court also declared amendments in Article 31C – introduced by Section 4 of the 42nd Amendment Act – unconstitutional, as they sought to give primacy to directive principles over fundamental rights.

4. Samba Murthy v State of Andhra Pradesh (1986)

In this case, the 32nd Amendment Act, 1973 had inserted Article 371D of the Constitution, which excluded the high courts’ power of judicial review.  The Supreme Court struck down clause (5) of Article 371D along with the proviso, as void.  This proviso conferred power on the state government to modify or annul the final order of the administrative tribunal.

5. Kihoto Hollohan v Zachillhu (1992)

In this case, the Supreme Court struck down Paragraph 7 of the 10th Schedule to the Constitution, inserted by the 52nd Amendment Act, 1985, to disqualify elected members of Parliament and state assemblies on the ground of defection, as unconstitutional. Paragraph 7 had barred the jurisdiction of courts from considering the validity of the speaker’s decisions with regard to disqualification.

6. Chandra Kumar v Union of India (1997)

In this case, the validity of Section 46 of the 42nd Amendment Act, 1976 was the issue.   This provision had inserted Articles 323A and 323B dealing with administrative tribunals and tribunals for other matters respectively.  The Supreme Court declared Clause 2(d) of Article 323A and Clause 3(d) of Article 323B as unconstitutional as they excluded judicial review by the high courts.

7. Supreme Court Advocates-on-Record Association v Union of India (2015)

In this case, the Supreme Court struck down the 99th Amendment to the Constitution, establishing the National Judicial Appointments Commission (NJAC) replacing the collegium framework for appointment of judges to the higher judiciary.  As the NJAC Act took away judicial primacy in the appointment of judges, the Supreme Court found that it infringed upon judicial independence, violating the basic structure doctrine.  Unlike the previous partial striking down of amendments, it was the first and only time when the Supreme Court struck down the entire Amendment Act as unconstitutional.

Basic structure doctrine v ordinary laws

Since the constitution bench in the Fourth Judges case (2015) had invalidated the 99th amendment invoking the basic structure doctrine, it did not find the need to apply the same doctrine while setting aside the NJAC Act.

Yet, it is interesting to note how the judges disagreed on the question.  Justice J.S. Khehar, in his judgment, found no problem in challenging the Act based on the doctrine because such a challenge would be based on a set of articles in the constitution, which the statute violated. While Justice Lokur offered a contrary view, other judges on the constitution bench avoided the issue as unnecessary.

File photo of Justice Madan B. Lokur. Photo: PTI

Justice Lokur noticed that in Madras Bar Association v Union of India, the Supreme Court had held that the basic structure doctrine could be invoked to challenge ordinary laws. But Justice Lokur chose to rely on the seven-judge bench decision in State of Karnataka v Union of India, which held that basic structure doctrine cannot be used to challenge ordinary laws. The only exception to this perhaps could be a statute placed in the Ninth Schedule of the Constitution, he noted.

However, Justice Lokur was part of the five-judge constitution bench which decided State of Tamil Nadu v State of Kerala, on May 7, 2014, declaring as unconstitutional the Kerala Irrigation and Water Conservation (Amendment) Act, 2006, which fixed and limited the Full Reservoir Level (FRL)  of  Mullaperiyar dam owned and maintained by Tamil Nadu at 136 ft.   The bench, relying on the court’s judgment in Mullaperiyar Environmental Protection Forum 1 case pronounced  on February 27, 2006, held that raising the water level from 136 ft to 142 ft would not jeopardise the safety of the dam in any manner.  The bench concluded that the 2006 Amendment Act was usurpation of judicial power, and therefore, violative of the doctrine of separation of powers, a basic feature of the Constitution, and also of the rule of law.  This subtle change in Justice Lokur’s opinion in the course of one year thus is noticeable on this issue and is also indicative of the lack of clarity among the Supreme Court judges on whether BSD could be applied to test the validity of ordinary laws.

Judicial independence the key concern for Supreme Court

The seven instances of striking down of constitutional amendments on the ground of violation of basic structure doctrine would show that in all these, the court did so only because the amendments threatened judicial independence, considered as a basic feature.

So far, the Supreme Court has not yet invalidated a constitutional amendment on the ground of violation of basic features, other than judicial independence.  This shows that the Supreme Court is inclined to invoke the basic structure doctrine as a last resort only if it finds that its own independence from the legislature or the executive is at stake, while striking down constitutional amendments.

As Krishnaswamy observes, there is an overzealousness that characterises Supreme Court’s willingness to protect the independence of the judiciary.  In the last two decades it has intervened in the selection of district court judges, their conditions of service including payment of salaries as well as the selection and functioning of tribunal and regulators.

Is this a case of institutional self-dealing where the court is protecting and advancing its own?  Krishnaswamy told me in an interview that he would agree if there was evidence that the Indian state invests heavily and pampers the court system.  “Unfortunately, the courts and the legal system are in a dismal state of disrepair, and hence judicial intervention in this arena appears to be more benign”, he said after the judgment in the NJAC case.

Interestingly, judicial independence or primacy were not listed by the majority Judges as basic features in the Kesavananda judgment, but have been elevated by the judiciary as basic features subsequently.   According to Chief Justice Sikri, the basic structure consists of just six features: supremacy of the Constitution; Republican and democratic form of government; secular character of the Constitution; separation of powers between the legislature, the executive and the judiciary;  federal character of the Constitution; and the dignity and freedom of the individual.

To this, other majority Judges added the unity and integrity of the nation, social, economic and political justice, liberty of belief, faith and worship, and equality of status and opportunity.  Mandate to build a welfare state, limitation on the amending power that it is not used to alter or damage the basic structure of the Constitution and independence of the judiciary were other additions.  It was possible for the subsequent benches of the Supreme Court to add to this list because the majority Judges in the Kesavananda had held that their list of basic features was only illustrative, and not exhaustive.

In Delhi Judicial Service Association v State of Gujarat (1991), which dealt with the power of the Supreme Court under Article 129 to punish for contempt of subordinate or inferior courts as well, the Supreme Court observed:

“Under the Constitutional scheme this Court has a special role in the administration of justice and the power conferred on it under Articles 32, 136, 141 and 142 form part of the basic structure of the Constitution.”

Citing the above passage, Raju Ramachandran finds it difficult to appreciate how Article 142, which gives the Court the power to pass any order in order to do ‘complete justice’ can be a part of the basic structure or how again the power of the Supreme Court under Article 136 to grant special leave can form part of it.

In cases where constitutional amendments are not under challenge, however, the Supreme Court has been more liberal in invoking the basic structure doctrine.

This has been so notwithstanding the aberration in A.D.M.Jabalpur v Shivkant Shukla (1976) when the Supreme Court held that the Presidential proclamation suspending Article 21 did not leave the citizen with the right to protect his liberty.  Because of this decision, a right which, applying the basic structure test, could not be taken away even by amending the Constitution, could be taken away by an executive proclamation.   But the court has, in subsequent years, not only considered A.D.M. Jabalpur unworthy of being followed as  a precedent for this decision, but specifically overruled it in 2017.

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

In  Special Reference Case 1 of 2002, while answering an advisory opinion sought by the president on the question of holding assembly elections in Gujarat in the aftermath of the post-Godhra carnage against minorities in the state, the Supreme Court held that holding of free and fair elections is a basic feature; therefore, the Election Commission was bound to hold elections within six months of dissolution of the assembly.   The EC wanted to delay the holding of elections in the state, in view of the tense situation in the state at that time, notwithstanding its constitutional obligation to hold the elections in time.

Over the years, the basic structure doctrine has been used more as an interpretative tool to test the validity of a law or executive action or determine the meaning of a constitutional provision.

BSD and recently decided cases

In K.S. Puttaswamy v Union of India, the Supreme Court’s nine-judge bench held that when a constitutional right such as the right to equality or the right to life assumes the character of being a part of the basic structure of the constitution, it assumes inviolable status:  inviolability even in the face of the power of amendment.   Statutory rights are subject to the compulsion of legislative majorities.  The purpose of infusing a right with a constitutional element is precisely to provide it a sense of immunity from popular opinion and, as its reflection, from legislative annulment.   Constitutionally protected rights embody the liberal belief that personal liberties of the individual are so sacrosanct that it is necessary  to ensconce them in a protective shell that places them beyond the pale of ordinary legislation; Entrenched constitutional rights provide the basis of evaluating the validity of law, the bench held.   These observations are a clear pointer that BSD can be applied to test the validity of ordinary laws, whatever the previous precedents.

Justice J. Chelameswar, in his separate and concurring judgment in Puttaswamy, observed:  “The implications arising from the scheme of the constitution are the “constitution’s dark matter” and are as important as the express stipulations in its text.  The principle laid down by this court in the Kesavananda that the basic structure of the constitution cannot be abrogated is the most outstanding and brilliant exposition of the ‘dark matter’ and is a part of our constitution, though there is nothing in the text suggesting that principle. …  Romesh Thappar and Sakal Papers are the earliest acknowledgement by this court of the existence of constitution’s dark matter.  The series of cases in which this court subsequently perceived various rights in the expression ‘life’ in Article 21 is a resounding confirmation of such acknowledgment”.

In the Ayodhya judgment, the Places of Worship Act, 1991 came for review.  The bench held that the state has, by enacting the law, enforced a constitutional commitment and operationalized its constitutional obligations to uphold the equality of all religions and secularism which is a part of the basic features of the Constitution.   The bench relied on S.R. Bommai v Union of India, in which the Supreme Court reiterated that secularism is a basic feature of the Constitution as affirmed in Kesavananda and Indira Nehru Gandhi.  “Any step inconsistent with this constitutional policy is, in plain words, unconstitutional”, the court had observed in that case.  The Act is intrinsically related to the obligations of a secular state, the bench in the Ayodhya case said.

A November 1990 photo of the Babri Masjid, still standing. Photo: PTI

Curiously, though the decision in the Ayodhya case was expected to deal more with secularism as a basic feature, the court invoked its relevance as a facet of BSD only while discussing the Places of Worship Act, 1991 in the judgment.  Many, therefore, would consider the bench’s non-reliance on BSD to reach its conclusion in the Ayodhya case a disappointment. Rather, the court decided the case the way it did because it paid only a lip service to the BSD, by relying on it just in passing, to suggest how to deal with such issues in future.

As the Supreme Court braces itself to decide the pending cases which implicitly involve an interpretation of the Constitution’s ‘dark matter’, it is its judgment in the Puttaswamy case which should offer it guidance, rather than its silence in the Ayodhya case.

BSD and the future of democracy

Against this back drop, a key question for our times is whether the basic structure doctrine can come to the rescue of Indian democracy in the face of a ruling dispensation determined to push its agenda?

The answer to this perhaps lies in how the Supreme Court’s judges  consider the application of the basic structure test to particular cases before them. Experience suggests that if they find alternatives to adjudicate an issue, they prefer those alternatives, rather than to use the basic structure test. In a given case, it may prove to be an easy alternative for a judge to rely on an abstract principle, and consider it as a basic feature of the constitution.

In many cases, however, judges find it problematic to apply the BSD to a given case when the impugned amendment/law/executive action only seeks to tweak or tinker with the constitution, but does not threaten to bring down its edifice.

Also Read: Inside Story of the Centre’s Turf War with the Supreme Court Collegium

In the NJAC case, for example, critics ask whether the Supreme Court was right in equating judicial primacy (which is just one facet of judicial independence) with judicial independence to strike down the constitutional amendment and the NJAC Act.  They ask whether the same judicial primacy is not sacrificed when the Supreme Court’s collegium is indifferent to the executive’s non-compliance with its recommendations in judges’ appointments or transfers even when reiterated.

While the abstraction of a basic structure principle may appear to be an invitation for its easy adoption by the judiciary in a given case, the standard of review required – whether the impugned legislative or executive action threatens to bring down the edifice of the constitution itself – may be a difficult criterion to satisfy, thus forcing a judge to consider alternatives to basic structure.

In State of Karnataka v Dr.Praveenbhai Thogadia, (2004) for example, a two-judge bench of the Supreme Court found the BSD a useful tool, in terms of Supreme Court’s declaration of secularism as a basic feature in S.R. Bommai (1994), to justify preventive action by the executive to stop any individual or group of persons from sowing seeds of mutual hatred, to create disharmony and disturb equilibrium, by their caustic and inflammatory speeches.

In the recent Firoz Iqbal Khan v Union of India (Sudarshan TV – UPSC Jihad show), the Supreme Court first restrained itself from imposing a pre-broadcast injunction against the television channel telecasting its controversial programme called “Bindaas Bol”, which allegedly tarnishes the Muslim community.  The precedent set in Thogadia could well have been applied in this case, without giving an opportunity to the channel to telecast the first four episodes of the controversial program allegedly facilitating hate speech.

The Supreme Court changed its view and imposed a pre-broadcast injunction over the remaining episodes of the programme only after the hate-speech content of the first four episodes already telecast were brought to its notice. The Supreme Court is apparently in search of principles to balance the free speech rights of the television channel with its responsibility to maintain the equilibrium.  In other words, the court finds the case before it too complicated for an easy adjudication on the basis of the BSD, as the court had done in 2004 in the case of Thogadia.

These two cases dealt with in the span of two decades by different judges bring to the fore the vacillation of the top court in recent years in adjudicating an issue on the basis of the BSD.

CJI Bobde’s recent off-the-cuff remark on discouraging resort to Article 32 of the constitution ˆ even while reprimanding in another case the Maharashtra legislative assembly secretary for threatening TV anchor Arnab Goswami for invoking the very provision – is one more proof of this vacillation among the judges of the Supreme Court on the application of the BSD.