13 January 2023 – The Indian Express

Securing Basic Structure

Present circumstances:

• Recently, Indian Vice President Jagdeep Dhankhar Wednesday sparked a debate on the balance of power between the executive and judicial branches.
• He criticised the Supreme Court once more for using the basic structure principle to invalidate the constitutional amendment that established the National Judicial Appointments Commission Act.
• Development of the “Basic structure” school of thought and the ability of Parliament to make amendments under Article 368:

The FRs were subject to Parliament’s ability to modify the Constitution:

 In Shankari Prasad Singh vs the Union of India:

• The controversial Articles 31A and 31B were added to the Indian Constitution in 1951 after a modification.
• The Supreme Court of India received a petition opposing Article(s) 31A and 31B on the grounds that they invalidate Part III of the Constitution’s guaranteed rights and, as a result, go against the letter of Article13(2).
• In the case of Shankari Prasad Singh Deo v. Union of India, the Hon’ble Supreme Court of India ruled that Article 368 of the Indian Constitution grants the right to amend the Constitution, including the Fundamental Rights, and that an amendment to the Constitution is not a “law” as defined by Article 13(2). The legislative authority of the Parliament, also referred to as its legislative power, is distinct from its amending or constitutive authority.
• A number of alterations to the Constitution were made after that, and in the Sajjan Singh v. State of Rajasthan case, the extent of the changes was once more disputed.
• Hidyatullah and Mudholkar highlighted concerns in their concurring opinion for the first time regarding Parliament’s unfettered power to amend the Constitution and limit individuals’ fundamental rights, even though all of the justices agreed with Shankari Prasad’s ruling.
• Fundamental rights were excluded from the application of the constitutional amendment.

Golaknath versus the state of Punjab:

• In an 11-judge bench decision, the Honourable Supreme Court decided 6:5 in favour of the exemption of the fundamental rights from constitutional amendment.
• The Court further clarified that the term of “law” under Article 13 includes a change to the Constitution (2). Therefore, any amendment that violated the Fundamental Rights was invalid.
• It was disproved that the right to amend the Constitution is a sovereign power that is apart from legislative authority and hence not susceptible to judicial review.
• The 24th Constitutional Amendment was suggested to restore things to the way they were before the Golak Nath case took away the Parliament’s freedom to change the Constitution whenever it pleased.

The 1973 Kesavananda Bharati case:

• The Kesavananda decision was the outcome of multiple disputes between the judicial and executive branches, which were supervised by the prime minister at the time, Indira Gandhi.
• After abolishing crucial measures like the privy purse, nationalisation of banks, and land reforms, the Parliament introduced a constitutional amendment to provide itself the authority to modify any aspect of the Constitution. Additionally, a legislation was established that forbids judicial scrutiny of the amendment.
• The Court’s larger Bench of 13 justices was then required to evaluate the legitimacy of the land amendments as well as the scope of the Parliament’s constitutional amendment power. No amendment was allowed if it altered “the essential structure or foundation of the Constitution,” according to a 7:6 split judgement. Despite the fact that Article 368’s reach was quite broad—it covered all of the Constitution’s provisions, including those found in the Fundamental Rights Chapter—this was the case.

Amendments were brought in to challenge the Kesavananda Bharati decision:

• By reading implicit limitations on the amending authority, the Supreme Court established a new precedent (overriding two prior judicial precedents).
• The majority view, nevertheless, was roundly criticised. The basic structural theory was advanced, and it was claimed that by doing so, the Constitution’s defenders had inescapably changed into its defenders — constitutional adjudicators had transformed into constitutional rulers!
• The High Court of Allahabad dismissed Raj Narain’s petition to remove Indira Gandhi from office on June 12, 1975. (He had run from Rae Bareilly in the 1971 elections against her)
• In a hurry, Parliament passed the Constitution 39th Amendment Bill in August 1975. It specified, among other things, that no law passed by Parliament (i.e., current election laws) would apply to the election of a person appointed as prime minister; additionally, the election of such a person would not be regarded as being void or having ever become void, and would instead continue to be valid in all respects.
• A constitutional amendment essentially sought to overturn Justice Jagmohan Lal Sinha’s decision from the Allahabad High Court, which declared Mrs. Gandhi guilty of “corrupt practise” in accordance with the then-applicable election standards.
• For the first instance since Kesavananda Bharati, a Constitution Bench of five judges rejected this strategy based on the notion of the Constitution’s fundamental structure.
• In Indira Gandhi v. Raj Narain (1975), a Constitution Bench of the highest court decided that free and fair elections were a fundamental part of the Constitution, so fundamental as to be outside the scope of the amending authority. The 13-judge panel in Kesavananda Bharati had previously included all five of the judges on the Bench.
• In the face of a determined majoritarian dictatorship, the decision marks a turning point in the Court’s judicial authority being asserted.
• Long after, a separate Bench of nine justices in I.R. Coelho v. State of Tamil Nadu authoritatively upheld the narrow majority opinion (of 7:6) in Kesavananda Bharati and gave it long-lasting constitutional validity.

What core principles underpin the Indian Constitution?

• The Supreme Court noted that this list was not exhaustive when it enumerated a few of the Constitution’s components that could be regarded as its “fundamental aspects” in the Kesavananda decision.
• Judicial review, the rule of law, federalism, and the structure of a democratic republic are a few examples of fundamental components.

What is contentious about the doctrine?

• Vice President Dhankhar’s remarks perfectly capture a common criticism of the theory and its application: that it is not expressly stated in the Constitution.
• There is a charge that by creating a test that is not a textual application of judicial review, the judiciary is interfering with Parliament’s authority.
• Senior attorney Raju Ramachandran and other critics of the idea have claimed that it is “anti-democratic and counter-majoritarian” for “unelected judges” to have the power to veto constitutional revisions based on this theory.
• However, legal scholarship has upheld the test’s legitimacy over time, contending that the idea is founded on a plausible structural reading of the Constitution.

 Conclusion:

• The “doctrine of basic structure” limits Parliament’s authority while permitting it to amend any part of the Constitution; nevertheless, any revisions must not change the “basic structure” of the Constitution.
• As a result, it was used as the basis for several court decisions that raised public support for the constitution as well as the principles and framework of a robust democracy.