From the Citizenship (Amendment) Act (CAA) to the latest farm laws, there has been an explosion in public interest litigation before the Supreme Court questioning the constitutional validity of recent legislation. One common challenge among many of the pending petitions before the Supreme Court is the allegation of violation of the ‘basic structure doctrine’. In this six-part series, The Wire takes the reader to different facets of the Kesavananda Bharati judgment, which gave birth to the doctrine in 1973, to unravel its significance in some of the crucial cases before the Supreme Court.
The passing away of Kesavananda Bharati, the head of the Edneer Mutt at Kasaragod in Kerala on September 6 briefly revived our curiosity about the 1973 landmark case named after him as the leading litigant. As the unwitting petitioner whose legal battle gave rise to the basic structure doctrine (BSD) – the notion that there are features of the constitution which are unamendable by parliament under any circumstances – Kesavananda’s legacy for India’s democracy is undisputed.
The pending challenges in the Supreme Court against the validity of the Citizenship (Amendment) Act (CAA), 2019 invoke several constitutional grounds, including the BSD. The CAA’s passage triggered peaceful civil society protests which, in turn, continue to be used by the state and its instruments to harass and deprive activists of their liberty across the country. Therefore, the outcome of the case in the Supreme Court has a huge bearing on the future of India’s democracy. The case, which is yet to be referred to a constitution bench, has been tentatively listed for hearing on November 2.
The CAA is just one of the pending cases before the Supreme Court which will test the BSD’s applicability. The controversy surrounding the doctrine’s birth, and its subsequent development as an interpretative tool, are facets which are likely to determine its relevance in other pending cases – some of which, like the CAA case, may turn out to be landmarks in India’s constitutional history.
The CAA came into effect with the issuance of a notification on January 10. As and when the Supreme Court begins hearing the challenges to it, the state is likely to resist the application of the BSD because no amendment of the constitution is under challenge, and the doctrine, as the Supreme Court has held in a few cases, is inapplicable to test the validity of ordinary laws.
Yet, the few cases in which the Supreme Court had applied the doctrine to find amendments, Acts, and executive action unconstitutional turned out to be important. Even the many cases where the Supreme Court used the doctrine to uphold the validity of amendments, laws or specific interpretations of constitutional provisions show that the doctrine is here to stay and an invitation for potential petitioners in public interest litigations to use it for additional legal support.
BSD’s relevance for challenging the CAA
Take the lead petition filed by the Indian Union Muslim League (IUML). The petition refers to the CAA’s extension of the benefits of naturalisation to undocumented migrants belonging only to the Hindu, Sikh, Buddhist, Jain, Parsi and Christian faiths, coming from Afghanistan, Bangladesh and Pakistan. The petition contends that the classification based on the religious identity of the individual offends the fundamental principle of secularism, which is enshrined as a basic structure of the constitution.
To support its view, the petition relies on the Supreme Court’s ruling in S.R. Bommai v Union of India (1994), delivered by a nine-judge bench. The petition contends that as a basic feature, secularism explicitly and implicitly prohibits the establishment of a theocratic state and prevents the state from identifying itself or favouring any particular religion or religious sect or religions. The state is mandated to accord equal treatment to all religions and religious sects and denominations because secularism has been identified as a basic feature of the constitution, the petition argues. As a result, the concept of secularism pervades – is and embedded in – the constitution’s philosophy, it says.
The petition filed by the National People’s Party, Assam makes a similar plea on the ground that the CAA violates Article 21 of the people of Assam by the likely massive influx of undocumented immigrants it will generate. As a result of the grant of citizenship to them, the indigenous people of Assam will be reduced to a minority in their home state, their cultural survival will be in jeopardy, their political control will be weakened and their employment opportunities undermined, the petition contends. The NPP’s petition argues that any classification based on religion or place of birth is impermissible in terms of Article 14.
Prasenjit Bose, in his petition, asks that if parliament cannot abrogate secularism – even through its powers to amend the constitution – because it has consistently been declared a facet of basic structure, how can a simple law achieve the same.
Significantly, the Centre, in its counter-affidavit, has not questioned the invocation of the basic structure doctrine in this case. In particular, it has not argued that the doctrine is applicable only while challenging constitutional amendments and not ordinary laws. This has huge significance for the manner the legal battle will play out in the court.
In its counter-affidavit, the Centre has submitted that the CAA also results in not granting any kind of exceptions/exemptions to Tibetan Buddhists from China and Tamil Hindus from Sri Lanka. Therefore, the assertion that the CAA attempts to classify persons belonging only to the Muslim community as ‘illegal migrants’ has no basis in law or fact, it has argued. Turning the petitioner’s challenge on its head, the Centre contends that the recognition of religious persecution in the specific neighbouring countries, which have a state religion and long history of religious persecution of minorities, is actually a reinstatement of the Indian ideals of secularism, equality and fraternity.
The Centre also denies that the CAA has, in any manner whatsoever, made religion a basis of determining the citizenship of a person. By protecting religious minorities in non-secular countries within India’s neighbourhood, the CAA reaffirms India’s faith and commitment to secularism, the Centre says. The limited recognition of religious persecution in a limited number of countries with a state religion neither violates secularism nor falls foul of the arbitrariness clauses, it contends. Foreigners belonging to the classified communities from the three countries are being granted long-term Indian visas as well as citizenship if they satisfy the conditions under the visa regulations and the Citizenship Act, 1955, the Centre has submitted.
The Centre maintains that merely because religion is the starting point of any classification (and not the sole basis of classification) would not imply that such a classification falls foul of secularism. “Indian secularism is not irreligious, rather it takes cognizance of all religions and promotes comity and brotherhood between all,” the Centre has told the Supreme Court. Across subjects, the Indian parliament and state legislature have made classifications on the basis of religious identities of Indian citizens as a starting point, the Centre suggests. The Act merely prescribes qualifications for citizenship based upon rational and reasonable classifications, and does not grant carte-blanche citizenship to the classified communities, the Centre has claimed.
The CAA does not classify or differentiate on the ground of religion, rather it classifies on the ground of “religious persecution” in countries functioning with a state religion; the Act, therefore, does not violate the cherished principle of secularism, the Centre has submitted. Rather than breaching any principle of ‘freedom of religion’, the CAA seeks to protect the ‘freedom of religion’ of the classified communities who have been persecuted for exactly expressing and practicing their respective religions in the particular neighbouring countries, the Centre has argued.
Does the Centre’s silence on the applicability of the BSD to challenge the validity of the CAA suggest that it accepts the contention of the petitioners on this, even if it disagrees with them on other grounds? Unlikely. The affidavit’s silence does not prevent the Centre from opposing the BSD’s application to the law during oral submissions.
BSD invoked in other pending cases
1. Maratha reservation
The outcome of the challenges to the validity of CAA, therefore, has huge implications for some of the other pending cases. The petitioners in Mohammad Sayeed Noori v State of Maharashtra, who are challenging reservation in jobs and education for the Maratha community, have invoked the BSD. In this case, they are challenging the Bombay high court’s judgment upholding of the validity of the Maharashtra Socially and Educationally Backward Classes Act, 2018.
The petitioners have argued in this case that the inclusion of a forward community (such as Marathas) in the list of backward classes violates the basic structure of the constitution, as held in the Supreme Court’s judgment in Indra Sawhney II (1999). “The principle of equality enshrined in Articles 14, 15, and 16 is the basic structure of the constitution, and could not have been taken away by legislative fiat,” they contend.
2. Reservation for EWS
In Youth for Equality v Union of India, the Constitution (103rd Amendment) Act, 2019 is under challenge, on the ground that it violates several basic features of the constitution. The amendment inserts Article 15(6) and 16(6) in the constitution to provide for special provisions/reservations for any economically weaker sections of citizens, other than the backward classes or SCs and STs.
The petition argues that the 50% ceiling limit of reservations has been engrafted as part of the basic structure of the constitution’s equality code. The exclusion of the economically weaker sections of the OBC/SC/ST from the scope of economic reservation is also described as a violation of the equality code, and therefore, of the BSD.
Thrusting reservations on private and unaided institutions obliterates the right guaranteed under Article 19(1)(g), a basic feature, a petition filed by Reepak Kansal argues. Another ground of challenge is that economic criteria cannot be the sole basis for reservation.
In its reply affidavit, the Centre has argued that merely affecting or impinging upon an article embodying a feature that is part of the basic structure is not sufficient to declare an amendment unconstitutional. To sustain a challenge against a constitutional amendment, it must be shown that the very identity of the constitution has been altered, it has submitted.
Listed by the lead petitioner in the case, Janhit Abhiyan v Union of India has now been referred to a five-judge constitution bench. In its referral order, the three-judge bench has concluded that the question of whether the amendment violates the basic structure of the constitution by applying the tests of ‘width’ and ‘identity’ with reference to equality provisions of the constitution, is a matter which constitutes a substantial question of law.
As compared to other BSD challenges, where ordinary laws are sought to be tested for compliance with the BSD, in this case, a constitution amendment will be tested, and its outcome will be a key precedent for future challenges.
3. Challenges to the revocation of Jammu and Kashmir’s special status
Following the withdrawal of the special status of Jammu and Kashmir and its splitting into two Union territories on August 5 last year, several petitions were filed in the Supreme Court challenging the Centre’s action.
In this case, the imposition of the President’s rule in J&K on December 19, 2018, the Constitution (Application to Jammu and Kashmir) Order 2019, Declaration under Article 370(3) of the Constitution dated 6.8.19, and the Jammu and Kashmir Reorganisation Act, 2019 are under challenge.
In Dr Shah Faesal v Union of India, the petitioner argues that the presidential proclamation dated December 19, 2018 is unconstitutional to the extent that it suspends the proviso to Article 3 of the constitution, which is a necessary safeguard protecting federalism and democracy, the basic features of the constitution.
Faesal contends that substituting the concurrence of the state with concurrence by the governor under President’s rule, is a violation of democracy. He submits that it is a basic feature of the Indian constitution to be governed by participative democracy, as has been held in R.C.Poudyal v Union of India (1994) and In State (NCT of Delhi) v Union of India (2018).
In the 2018 decision, the Supreme Court held:
“After the evolution of the basic structure doctrine post Kesavananda, the interpretation of the Constitution must be guided by those fundamental tenets which constitute the foundation and basic features of the document. Where a provision of the Constitution is intended to facilitate participatory governance, the interpretation which the court places must enhance the values of democracy and of republican form of Government which are part of the basic features.”
According to Faesal, the federal relationship of each state with the Centre is at a federal balance, which can be amended but not damaged or destroyed, as part of the basic structure of the constitution.
The senior counsel for the petitioner, Raju Ramachandran, who is a known critic of the BSD, found it useful to support the challenge. “The impugned orders and the Act violate the principles of federalism, democracy and the Rule of Law – each of which forms part of the basic structure of the Indian Constitution,” the petition reads.
Relying on the “implied limitation” theory of the six majority judges in the Kesavananda case (the seventh Judge, H.R. Khanna disagreed with it explicitly), Ramachandran argued that federalism places an implied limitation upon the powers of the president during president’s rule, namely, a limitation upon the president’s power to change the status of the federal unit itself.
In his essay in the edited volume, Supreme But Not Infallible, Ramachandran was critical of the application of the doctrine to ordinary Acts, rather than to only constitutional amendments. In this case, however, he supports the challenge to the validity of the Jammu and Kashmir Reorganization Act, 2019 on the ground that the series of actions culminating in the Act is in violation of the right to autonomy of the state that inheres in its residents under Part III of the constitution. Therefore, he argued on behalf of Faesal, they are destructive of the basic structure of the constitution as applied to the state and are liable to be held to be void and inoperative under Article 13.
Has the doctrine turned one of its serious critics as its defender? The circumstances of the case may well suggest that.
4. Electoral bonds case
The Finance Act of 2017 introduced the use of electoral bonds which are exempt from disclosure under the Representation of Peoples Act, 1951, opening the door to unchecked, unknown funding to political parties.
The Finance Act, 2016 also amended the Foreign Contribution Regulation Act (FCRA), 2010 to allow foreign companies with subsidiaries in India to fund political parties in India, that too with retrospective effect, effectively exposing Indian politics and democracy to international lobbyists who may want to further their agenda.
The petitioners, the Association of Democratic Rights (ADR), have challenged these amendments as being unconstitutional and violative of the doctrines of separation of powers and the citizen’s fundamental right to information – which are parts of the basic structure of the constitution.
Relying on the Supreme Court’s decision in I.R.Coelho, the petitioners claim that the BSD requires the state to justify the degree of invasion of fundamental rights. The greater the invasion into essential freedoms, the greater is the need for justification and determination by the court as to whether an invasion was necessary and if so to what extent, they contend.
5. Challenge to Nikah-Halala and other personal law cases
In Nafisa Khan v Union of India, the petitioners have prayed for a declaration that polygamy and Nikah-Halala – the practice in which a divorced woman can only remarry her husband if she first remarries another man and consummates her marriage – are illegal and unconstitutional for being violative of Articles 14, 15, 21 and 25 of the Constitution. They have challenged Section 2 of the Muslim Personal Law Application Act, 1937 which seeks to recognise and validate nikah halala and polygamy, as void and unconstitutional as such practices are not only repugnant to the basic dignity of a woman as an individual but also violative of the fundamental rights guaranteed under the constitution.
As the basic structure permeates the equality of status and opportunity, any personal laws conferring an inferior status on women is anathema to equality, they have argued.
In Yasmeen Zuber Ahmad Peerzade v Union of India, the petitioner sought permission for Muslim women to enter a mosque and offer their prayers, setting aside the alleged fatwa/directions of imams as violative of the BSD.
6. Right of transgender persons
In Grace Banu v Union of India, the challenge is to the validity of the Transgender Persons (Protection of Rights) Act, 2019. The petitioners in this case are aggrieved that several provisions of the Act violate the rights of transpersons to self-determine one’s gender identity, which is an integral part of one’s right to life, dignity and autonomy. The Act caps the maximum penalty for sexual abuse committed against transgender persons at two years’ imprisonment, whereas, for similar offences committed against women under the Indian Penal Code, it ranges between three years to life imprisonment.
The petitioners have challenged this as an arbitrary distinction in punishment, which is violative of Article 14 of the constitution mandating equality before law and equal protection of laws. The Act’s silence on classifying transgender persons as socially and educationally backward classes of citizens for the purpose of reservations has disappointed the intended beneficiaries. Although the petitioners have not invoked the BSD, it is clear that it may come up during the hearing of the case.
7. Challenge to the farm Act
In T.N. Prathapan v Union of India, the petitioner, a Congress member of the Lok Sabha, has challenged the constitutional validity of the Farmers’ (Empowerment and Protection) Agreement of Price Assurance and Farm Services Act, 2020. The petitioner has submitted that the Act will spell disaster for the farming community by opening a parallel market which is unregulated and gives enough room for exploitation of the farmers’ community by the concentration of power in the hands of a few corporates/individuals, multinationals and moneylenders. Some of its provisions are against the basic structure of the constitution, and fundamental rights of the farmers, he has alleged. In particular, he claims that the Act forces the farmer to approach the “already overburdened bureaucracy” for a remedy in case of a dispute instead of getting an effective and permanent solution for the same in a court of law.
Under Section 19 of the Act, no civil court has jurisdiction to entertain any suit or proceedings in respect of any dispute which a sub-divisional authority or the appellate authority is empowered by the Act to decide and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or any rules made thereunder. Such exclusion of jurisdiction by the courts has always been frowned upon as a violation of the principle of judicial independence, which is a basic feature of the constitution.
The Act, he alleges, fails to establish farmer-centric courts where the farmers can raise their grievances, similar to the ones created to resolve grievances of labour workers, consumers, and marital disputes.
The Act, the petitioner contends, denies respect for personal identity, undermines autonomy over fundamental personal choices, and damages plurality and diversity, besides being in stark violation of the universal and basic human right to dignity.
Another MP, Manoj Jha (RJD) also filed a petition in the Supreme Court raising similar issues. Among other things, he has alleged breaching the principle of federalism, as agriculture is a state subject, and pitting the farmers against big corporations, leaving them with low bargaining power. He has also highlighted provisions which are discriminatory and manifestly arbitrary.
Both Jha and DMK MP Tiruchi Siva have challenged this Act as well as two other Acts, namely, the Farmers Produce Trade and Commerce (Promotion and Facilitation) Act, 2020 and the Essential Commodities (Amendment) Act. Like Jha, Siva too has alleged violation of the principles of equality, federalism and non-discrimination. He has also alleged non-compliance with Articles 21 (Right to life and liberty) and 23 (prohibition of forced labour).
In Part II: From Uncertainty to Gaining Respect, the Basic Structure Doctrine’s Fascinating Journey From 1973