As Courts Rule on Constitution's Basic Structure, Landmark Doctrine Turns Out to Be Elastic

The 1973 'Kesavananda Bharati' case is hailed as having protected India’s democracy from sliding into dictatorship. But subsequent judgments are at best an inexact guide to how the 'basic structure doctrine' will impact pending cases before the Supreme Court.

This is the third 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 IIPart IV / Part V / Part VI


In a scholarly article published in the Indian Journal of Constitutional Law a few years ago, senior advocate Arvind P. Datar took the view that the basic structure doctrine has repeatedly saved the constitution’s integrity and sanctity. But the history of the doctrine’s journey in the lanes and by-lanes of the law has not been a smooth one, with challenges testing its acceptability at every turning point.

Justice K.K. Mathew was one of the dissenting judges in the 1973 Kesavananda Bharati judgment and thus not party to the thesis that there were aspects of the constitution that were unamendable. In Indira Gandhi v Raj Narain two years later, he wrote that he could not conceive of the rule of law as a twinkling star up above the constitution. To be a basic structure, it must be a terrestrial concept having its habitat within the four corners of the constitution, he had held. 

Justice Mathew posed an interesting question: if high courts and the Supreme Court overrule their own precedents, then clearly no precedent is applicable.  

Therefore, if the basis of the  rule of law is that no decision can be made unless there is a certain rule or precedent to govern that decision, how could one enunciate the rule of law? It is precisely because a judge cannot find a previously announced rule that he becomes a legislator to a limited extent.  

Thus Justice Mathew held that if rule of law is to be a basic structure of the constitution, one must find specific provisions in the constitution embodying the constituent elements of the concept.

According to him, the concept of equality, which is basic to the rule of law and which is regarded as the most fundamental postulate of republicanism, is embodied in Article 14 of the Constitution.  

If the majority in  Kesavananda Bharati did not list Article 14 as a basic feature of the Constitution, he wondered, “which is the other principle of equality incorporated in the Constitution which can be a basic structure of the Constitution or an essential feature of democracy or rule of law?” 

Justice Mathew, however, found it unnecessary to pursue this aspect of the question, as he had already given reasons to show that Clause (4) of Article 329-A – introduced by Indira Gandhi as the 39th amendment to the constitution to insulate her election from any legal challenge – was bad in law. Article 329-A was later repealed by the 44th Amendment. 

And Justice Mathew was prescient. 

As subsequent judgments of the Supreme Court show, certain overarching principles were declared as part of the basic structure. Thus, formal equality itself is not part of basic structure; but “egalitarian equality,” understood as “proportional equality” is –as held by the court in M.Nagaraj v Union of India (2006). In that case, the court explained that the concept of egalitarian or proportional equality expects the state to take affirmative action in favour of disadvantaged sections of society within the framework of democratic polity.

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

In Ashok Kumar Thakur v Union of India, the majority of the judges held that the 93rd constitution amendment which introduced Article 15(5) to provide for reservations for Scheduled Castes, Scheduled Tribes and Other Backward Classes in aided educational institutions did not violate any basic structure of the constitution. The court held that equality is a multicoloured concept incapable of a precise definition. A constitutional amendment, which “moderately abridges” or alters the equality principle does not violate the basic structure, it  held.

In I.R.Coelho v State of Tamil Nadu, the Supreme Court reasserted that many, if not all, of the current fundamental rights were part of the basic structure of the constitution, and that the laws in the Ninth Schedule would have to be tested by them. In this case, the court had to interpret Article 31B of the constitution which created the Ninth Schedule to protect laws inserted in it from judicial review.

In Democracy and Constitutionalism, Sudhir Krishnaswamy writes that the basic structure doctrine has evolved as an independent and distinct type of judicial review that applies to state action generally, and not necessarily to constitutional amendments which are under challenge. According to him, it applies to all forms of state action to ensure that such action does not “damage or destroy” basic features of the constitution.

While the doctrine is universally hailed as having strengthened Indian democracy, it has,  paradoxically, also come under attack for being “anti-democratic and counter-majoritarian in character”. The criticism is that “unelected judges have assumed vast political power (in the guise of determining what is basic structure in a given case) not given to them by the constitution”.  

Illustration: The Wire

Senior advocate Raju Ramachandran, in a seminal essay to mark the 50th anniversary of the Supreme Court, made a case for burying the doctrine “to give an opportunity to put half a century’s experience of politics and economics into the constitution.” “The sanctioned building plan, the radiations and the vastu that emanate from the structure (the multi-provisional implications) prevent us from remedying the situation (the aberrations in our democracy),” Ramachandran wrote in response to his critics.

To this, Krishnaswamy’s reply is that as the standard of constitutional injury is exceptionally high (damage or destroy or erasure) and the basic features are abstract constitutional principles which admit of many conceptions, the effect of basic structure review is not to bar all forms of constitutional change. 

One persisting dilemma which engaged the attention of constitutional scholars is whether the basic structure test can be applied to ordinary laws or restricted only to constitutional amendments. In Kuldip Nayar v Union of India, the Supreme Court held that the doctrine should be strictly limited to constitutional amendments. The Centre took the stand that the doctrine is inapplicable to ordinary statutes. 

But at least in three cases prior to Kuldip Nayar, the Supreme Court had held ordinary laws or its provisions unconstitutional on the ground that they violated the basic structure. 

In Dr.D.C. Wadhwa and Others v State of Bihar (1986), the Supreme Court struck down the re-promulgation of ordinances in Bihar on the ground of basic structure violation. In L. Chandra Kumar v Union of India, the Supreme Court not only struck down the constitutional amendment depriving the high court of its jurisdiction under Article 226 and 227 (from decisions of an administrative tribunal), but declared Section 28 of the Administrative Tribunal Act, 1985 providing for “exclusion of jurisdiction of courts except the Supreme Court under Article 136 of Constitution” as unconstitutional on the ground that they violated the basic structure doctrine.

In Indra Sawhney II (1999), a bench of three judges of the Supreme Court held that a state-enacted law (by Kerala on reservation for the ‘creamy layer’) violated the doctrine of basic structure.

The Supreme Court. Photo: Reuters

A legislation, the court held in Kuldip Nayar, can be declared invalid or unconstitutional only on two grounds, namely, lack of legislative competence and violation of any fundamental rights or any provision of the Constitution. In the three cases where the Supreme Court had found statutes as being contrary to basic structure doctrine, the question of their applicability to constitutional amendments alone was not raised and considered, the bench in Kuldip Nayar pointed out.

In Kuldip Nayar, the court thus held that ‘residence’ of a member of the Rajya Sabha in the state from which he is elected as a member is not a constitutional requirement, and therefore, in permitting a non-resident to contest the Rajya Sabha poll from a state, the question of violation of basic structure does not arise.   

The court thus dismissed challenges to the validity of the amendments brought about in the Representation of People Act, 1951, through the RP (Amendment) Act, 2003. The amendment deleted the requirement of ‘domicile’ in thee state concerned for getting elected to the Rajya Sabha. The court held that it is no part of federal principle that representatives of state must belong to that state. Hence, if Indian parliament in its wisdom had chosen not to require residential qualification, it would not violate the basic feature of federalism, the court reasoned.

Madhav Khosla, in his short Introduction to the Indian Constitution, defends the court’s judgment in Kuldip Nayar, and suggests that it is almost bizarre to believe that a statute could pass the test for constitutionality, but breach the basic structure standard. 

Senior advocate, Arvind P. Datar, however, believes that there has been no clear explanation of why the basic structure doctrine will not apply to strike down an ordinary law. “Indeed, not using the doctrine in such a scenario can cause greater harm to the constitution as this makes laws evolved by parliament not amenable to judicial scrutiny,” he writes.  

Underlying Datar’s concerns is the absurd situation that may result if parliament is indeed allowed to pass laws without regard for the basic structure doctrine – a constitutional amendment will be subject to a more rigorous test than an ordinary law.

But the debate on this issue is far from settled. 

Indira Gandhi. Credit: PTI

In Indira Gandhi v Raj Narain, three judges clearly held that the doctrine could be applied only to amendments in the constitution. Raju Ramachandran finds this conclusion self-evident. An ordinary legislation would be unconstitutional either if it violates a fundamental right or if it is passed without legislative competence over the subject or offends a specific article of the constitution, he has argued in Supreme but not Infallible.

The Supreme Court itself appeared to be confused about the applicability of the basic structure doctrine to ordinary laws. According to Ramachandran, the Supreme Court initially reiterated its position as held in Indira Gandhi v Raj Narain, in two cases. In V.C.Shukla v Delhi Administration (1980) (known as the ‘Kissa kursi ka case’) both V.C. Shukla and Sanjay Gandhi were acquitted of criminal conspiracy to destroy the film during the Emergency. But their challenge to the Special Courts Act, 1979, on the ground that it violated Articles 14 and 21 was repelled. In Minerva Mills II (1986), the Supreme Court dismissed the challenge to the Nationalisation Act, passed to replace the Sick Textile Undertakings Ordinance of 1974, on the ground of violation of basic structure doctrine.

In Ismail Faruqui v Union of India, however, the court resorted to the basic structure doctrine in order to invalidate an ordinary legislation dealing with the demolished  Babri Masjid, namely, the Ayodhya (Acquisition of Certain Areas) Act, 1993. Similarly, in G.C.Kanungo v State of Orissa, the court used the doctrine to invalidate an arbitration law enacted by the (then) Orissa assembly.

According to Ramachandran, the court could have invalidated both these laws on other well-recognised grounds, but the resort to the “basic structure mantra” made the court’s task easier.   

In Ismail Faruqui, the court was considering a challenge to the validity of provisions which abated suits and other legal proceedings in relation to the disputed site, without providing an alternative mechanism for resolution of the dispute. The majority held this to be unconstitutional, as amounting to a negation of the rule of law, a basic feature. 

In G.C. Kanungo, the court struck down the Arbitration (Orissa Second Amendment) Act, 1991, which nullified awards of special arbitral tribunals, on the ground that it violated the rule of law. In Ramachandran’s view, in both the cases, the court could have achieved a similar result by citing the violation of Article 14 of the constitution on the ground that the Acts were unreasonable and arbitrary.

In S.R. Bommai v Union of India, the Supreme Court invoked ‘secularism’ as the basic feature, to justify resort to Article 356 in the BJP-ruled states, following the demolition of the Babri Masjid. Instead, the court could have reasoned that the anti-secular stance of those state governments had resulted in the loss of life and property, failure of law and order, and failure to guarantee safety to a minority community, which meant that the governance of the state could not be carried on in accordance with the constitution, warranting imposition of president’s rule under Article 356. But the basic structure doctrine provided the court an easy option. 

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

In Andhra Pradesh State Council of Higher Education v Union of India, (2016) Justice V. Gopala Gowda who presided over the bench, which included Justice Arun Mishra, set aside the action of banks in freezing the accounts of the Andhra Pradesh State Council (APSC) as wholly untenable in law. The Andhra Pradesh high court had upheld Telangana’s claim over the entire funds and assets of the erstwhile APSC, after the reorganisation of the state. Setting aside the high court’s judgment, the Supreme Court emphasised that the constitution envisages a federal feature, held to be a part of the basic structure in S.R. Bommai. The Supreme Court held that the assets existing upto the date of bifurcation might be divided between the two successor states in the population ratio of 58:42 as provided under section 2(h) of the Reorganisation Act, or the  Centre might constitute a committee to arrive at an agreement within two months.

In Asha Ranjan v State of Bihar, the Supreme Court declared the power of judicial review as being an integral part of the basic structure of the constitution. Justice Dipak Misra, while directing the transfer of M. Shahabuddin from Siwan Jail, Bihar, to a jail in Delhi, said:

“Judicial review acts as the final arbiter not only to give effect to the distribution of legislative powers between Parliament and the state legislatures, it is also necessary to show any transgression by each entity. If the federal structure is violated by any legislative action, the constitution takes care to protect the federal structure by ensuring that the courts act as guardians and interpreters of the constitution and provide remedy under Articles 32 and 226, whenever there is an attempted violation…A direction by the High Court…to CBI to investigate a cognizable offence alleged to have been committed within the territory of a state without the consent of that state will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law.

“Being the protectors of civil liberties of the citizens, this court and the high courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights…zealously and vigilantly.”

Relying on the Supreme Court’s judgment in Ashoka Kumar Thakur, Datar warns that negating the basic structure doctrine would create a totalitarian regime. “When judicial review is barred, democracy evaporates,” the court observed in that judgment.

The lawyer P.P. Rao wrote in his memoirs that the basic structure of the constitution is an imprecise and elastic concept. According to him, the basic features illustrated in the five judgments delivered by the majority in Kesavananda do not tally. 

“If we go by the common denominator, very few of them can be regarded as basic features acceptable to all the seven judges (who constituted the majority in that case). They are to some extent overlapping. Each one of them is vague by itself. The task of identifying the basic features is tough and time-consuming. Neither is the court in a position to identify all the components of the basic framework of the constitution once and for all, nor has parliament any clear idea about the scope of its amending power as of now. As a result of this situation, the judiciary has emerged as the most powerful wing of the ‘State’ in comparison to the legislature and the executive,” he wrote.