Basic structure is India’s pride and world’s envy
On the 50th anniversary of the Kesavananda Bharati judgment, it is time to appreciate how the doctrine brought together the best in advocacy, idealism
Kesavananda Bharati (KB) vs State of Kerala — a landmark case that defined the concept of the basic structure doctrine of the Indian Constitution — completes 50 years on April 24, and this is an opportune moment to recognise its unique facets. The KB case was the longest argued case with the largest bench (13 judges, this has happened only once till date) of the Supreme Court (SC); the 703-page judgment, spread over 11 judicial opinions, established a permanent bulwark against tyranny and dictatorship.
By a 7-6 verdict, the SC ruled that Parliament could amend any part of the Constitution if it did not alter or amend the basic structure or essential features of the Constitution. In addition, the ruling said, the superior courts will have the last word on a case-by-case basis to decide the contours of basic structure. While there is no exhaustive itemisation of such basic structure features, an illustrative list has come up in the last 50 years, which includes democracy, one-person-one-vote, secularism, federalism, republicanism, independence of the judiciary, and power of judicial review by superior courts.
The story of the evolution, development, manifestation and ultimate solidification of the doctrine spans law, creativity, politics, confrontation, independence, capitulation, victory from the jaws of defeat, and the validation that truth can indeed be stranger than fiction.
The story starts with Shankari Prasad (1951), which upheld the validity of the first constitutional amendment, making inroads into property rights unchallengeable. In this case, the SC contended that Parliament’s power of amending the Constitution under Article 368 included the power to amend the fundamental rights guaranteed in Part III as well. In the Sajjan Singh case (1964), again, the SC held that the Parliament can amend any part of the Constitution, including the fundamental rights.
But two Nagpur judges — Mohammad Hidayatullah and JR Mudholkar — in their dissenting opinion, questioned whether fundamental rights could be the “plaything of the majority party?” This remark sowed the seeds of the Bharati judgment.
Mudholkar was the first to use the phrase “basic features” and questioned whether they could be taken away. Ironically, he traced this approach to an earlier dissent from the Pakistan SC — Fazlul Choudhary — in a country that has more than twice accepted and then rejected the basic structure theory.
The Golaknath (1967) case was arguably a greater victory and a bigger leap than Bharti. By a 6-5 majority, India’s largest bench till then, said that fundamental rights were unamendable, overruling both Shankari Prasad and Sajjan Singh, and that “the core rights in our foundational assembly (cannot) be altered by changes.”
The majority judgement called upon the concept of implied limitations on the power of Parliament to amend the Constitution. As per this view, the Constitution gives a place of permanence to the fundamental freedoms of the citizens, and in giving to themselves the Constitution, the people had reserved these rights for themselves.
In 1965, Professor Dieter Conrad of Heidelberg, an Indophile, pushed this theory of implied limitations on the Constitution, which was read by senior advocate MK Nambyar in the Golaknath case, planting the seeds of the basic structure doctrine.
Conrad forcefully argued that the amending power could not abolish Article 21 or introduce monarchy by a constitutional amendment. He drew heavily from the disastrous consequences when the Weimar Constitution allowed unlimited amending powers in Germany. Nambyar argued it in Golaknath, but implied limitations were rejected in that case.
In 1971, Parliament enacted the 24th to 26th constitutional amendments to overrule the bank nationalisation case, which held that the Constitution guarantees the right to compensation, that is, the equivalent money of the property compulsorily acquired, to oust judicial review of any law stated to be in furtherance of directive principles, and to overrule the privy purses judgment. These amendments were challenged in the name of a Kerala mutt head, Kesavananda Bharati, who never met his lawyer Nanabhoy Palkhivala, did not participate in the apex court’s proceedings, but was clubbed with cases of several coal, mining and sugar companies.
It is this implied limitation doctrine, which was reincarnated when six judges on the Kesavananda Bharati bench followed Golaknath, accepted that Article 368 had inherent and implied limitations, and did not allow alteration of the basic structure. Six others, including the junior-most judge, YV Chandrachud, dissented. The 13th judge, justice HR Khanna, carried the day. He held fundamental rights amendable, and rejected implied limitations, but said, “The power of amendment does not include the power to abrogate the Constitution nor does it include the power to alter the basic structure or framework of the Constitution.”
Importantly, he approved the core of the Conrad doctrine. The rest is history. But since Kesavananda Bharati did not hold part 3 (fundamental rights) unamendable, it was a defeat for the petitioners and a regression from the Golaknath high. But from that retreat, Palkhivala snatched a lasting victory for a nuanced basic structure-based unamendability doctrine. Unprecedented for that era, a summary of the majority view was also published, though signed only by nine judges, with four refusing to do so. Much later, justice Chandrachud said that the summary “undeniably, correctly reflects the majority view.”
The KB judgment was delivered on Chief Justice of India (CJI)Sarv Mittra Sikri’s last working day. The next day, three judges who backed the majority view — justices Jaishanker Manilal Shelat, AN Grover and KS Hegde - were superseded, and AN Ray was made CJI. Two years later, CJI Ray, on October 20, 1975, during the Emergency, notified a bench of 13 judges to reconsider Kesavananda Bharati.
Two days of arguments led to consternation as to how a review was listed, without anyone applying for it. The arguments of Palkhivala were later described by justice HR Khanna: “It was not Nani who spoke. It was divinity speaking through him.” Given the visible discomfort of even his brethren on the bench, chief justice Ray abruptly dissolved the bench two days later. Kesavananda Bharati could not have been better entrenched than by this last unsavoury episode. Case after case — Minerva Mills, Raj Narain, SC Bar Association, Kihoto Hollohon, Chandra Kumar to name a few — applied it to adumbrate the principles listed in the first paragraph above.
The basic structure doctrine remains India’s pride and the world’s envy. Bangladesh, Malaysia and Kenya have imported this Indian judicial invention. Despite pushback from the more expansive Golaknath, it has thrived precisely because it is more nuanced.
It started with an unseemly skirmish as to whether attorney general Niren De, smarting under setbacks in the bank nationalisation and privy purses cases, would open arguments or Hormasji Maneckji Seervai would do so for the state of Kerala (settled by a typical lawyerly fiction whereby Niren De opened and immediately announced that he had to travel abroad for urgent work, leaving it to Seervai to argue). It brought out the worst in confrontational politics, governance, and intra-judicial divisiveness, but also the best in advocacy, idealism and independence amidst great pressure.
Conrad, a clear co-parent of the doctrine, at his 1996 Indian Law Institute lecture, innovatively pointed out how it was applied without any constitutional amendment in the SR Bommai case to invalidate State action under Article 356 on the touchstone of federalism, held to be a pillar of basic structure. Long live the basic structure doctrine, despite the attempt of constitutional pygmies to jettison, dilute or ignore it. Love it or hate it, India cannot do without it.
Abhishek Singhvi is a senior 3rd term sitting MP; jurist; chairman, parliamentary standing committee; former additional solicitor general of India and member, Congress Working Committee. The views expressed are personal
Continue reading with HT Premium Subscription
