Basic Structure Doctrine: The battle behind the scenes

Last month marked the 47^th anniversary of the judgment in the famous Kesavananda Bharti case. The case is undoubtedly is one of the most momentous milestones in our constitutional history. It was heard by a 13-judge Bench over 68 days in the backdrop of mounting tensions between the Executive and the Judiciary.

The 13-judge Bench was constituted to adjudicate upon the constitutional validity of the 24^th, 25^th and 29^th amendments to the Constitution in the backdrop of the judgment in the Golaknath case by an 11-judge Bench, in which it was held that no constitutional amendment could infringe upon fundamental rights guaranteed under the Constitution.

While adjudicating upon the validity of the constitution amendments challenged before it, the Supreme Court considered the vital issue as to whether the legislature had untrammelled power to amend the Constitution. A wafer thin majority of 7:6 held that it is beyond the pale of the power of the legislature to amend the “basic structure” of the Constitution. This is the popular takeaway of this landmark judgment, and has been part of the constitutional law curriculum of generations of lawyers since then.

What is remarkable and not fully appreciated is the wide divergence of opinion within the majority on vital issues that arose for consideration. The most striking dichotomy of views within the majority was on the issue as to whether fundamental rights could be abrogated altogether. Chief Justice SM Sikri was of the view that these rights are in the nature of basic inalienable rights and it is not within the competence of Parliament to abrogate these rights, although reasonable restrictions could be imposed in public interest.

The other majority judges (except for Justice HR Khanna) subscribed to the theory of “implied limitations” albeit with differing notions as to the extent and scope of what these implied limitations were. However, Justice Khanna, who is popularly believed to have tipped the balance in favour of the majority, in fact rejected the theory of “implied limitations”, particularly when he considered the question as to whether fundamental rights could be amended or abrogated. Consider the following observations in Justice Khanna’s judgement:

• It is difficult to accede to the contention that even though the framers of the Constitution put no express limitations in Article 368 on the power to make amendment, they curtailed that power by implication under Article 13(2).

• I am of the view that if the preservation of the fundamental rights was so vital an important a desideratum, it would seem logical that a proviso would have been added in Article 368, expressly guaranteeing the continued existence of fundamental rights in an abridged form. This was, however, not done.

• I have kept the above principles in view and am of the opinion that as the language of Article 368 is plain and unambiguous, it is not possible to read therein a limitation on the power of Parliament to amend the provisions of Part III of the Constitution so as to abridge or take away fundamental rights.

• Argument has then been advanced that if the power be held to be vested in Parliament under Article 368 to take away or abridge fundamental rights, the power would be, or in any case could be, so used as would result in repeal of all provisions containing fundamental rights. India, it is urged, in such an event would be reduced to a police state wherein all cherished values like freedom and liberty would be non-existent. This argument, in my opinion, is essentially an argument of fear and distrust in the majority of representatives of the people. I find it difficult to deny to the Parliament the power to amend the constitution so as to take away or abridge fundamental rights by complying with the procedure of Article 368 because of any such supposed fear or possibility of the abuse of power.

• Apart from the fact that the possibility of abuse of power is no ground for the denial of power if it is found to have been legally vested, I find that the power of amendment under Article 368 has been vested not in one individual but in the majority of the representatives of the people in Parliament.

• It would be impermissible to differentiate between scope and width of power of amendment when it deals with fundamental right and scope and width of power when it deals with provisions not concerned with fundamental rights.

• Whatever might be the justification for invoking the concept of implied limitations in a short constitution, so far as the Constitution of India with all its detailed provisions is concerned, there is hardly any scope or justification for invoking the above concept.

• In my opinion, this differentiation between fundamental right and the essence or core of that fundamental right is an over-refinement which is not permissible and cannot stand judicial scrutiny. I am unable to accept the argument that even if a fundamental right be held to be amendable, the core or essence of that right should be held to be immune from the amendatory process.

• I am also of the view that the powers to amend the provisions of the Constitution relating to fundamental rights cannot be denied by describing the fundamental rights as natural rights or human rights.

• The argument that Parliament cannot by amendment enlarge its own powers is untenable. Amendment of the Constitution, in the very nature of things, can result in conferment of powers on or the enlargement of powers of one of the organs of the State.

Clearly, the above views of Justice Khanna are inconsistent with the views of the rest of the majority judges. Even when Justice Khanna spoke of the “basic structure”, his conception of the same was very limited, as is apparent from the examples which he himself gave. Under this limited conception, what was impermissible was something extremely drastic such as changing the democratic government into dictatorship or hereditary monarchy or to abolish the Rajya Sabha or the Lok Sabha. Abolishing the entire Chapter on Fundamental Rights arguably did not fall foul of this limited conception. Some even questioned whether Justice Khanna’s views could be clubbed with that of the so called “majority view”.

Indeed, when the judgments by all the judges, running into almost 1000 pages, were pronounced on April 24, 1973, it was not very clear as to what constituted the “majority view” not only with regard to the fundamental issue of the scope of the amending power but also as to validity of Article 31-C [inserted vide the 25^th Amendment].

The first half of Article 31-C provided that no law enacted towards securing Directive Principles in clause (b) or (c ) of Article 39 could be questioned for infringing upon Article 14,19 and 31 and the second half of Article 31-C provided that no such law containing the declaration that it was enacted for the stated purpose could be called in question in any Court.

Unlike the other majority judges, Justice Khanna declared the first half of Article 31-C to be valid. Thus, the first half of Article 31-C was declared valid by seven justices (Ray, Palekar, Khanna, Mathew, Beg, Dwivedi and Chandrachud, JJ.); invalid by five (Sikri, CJ, Shelat, Grover, Hegde and Mukherjea, JJ.); and valid upon severance by Jaganmohan Reddy, J.

The second half was held invalid by seven justices (Sikri, CJ, Shelat, Grover, Hegde, Mukherjea, Jaganmohan Reddy, and Khanna, JJ.); wholly valid by four justices (Ray, Palekar, Beg and Dwivedi, JJ.); and valid as interpreted by two justices (Mathew and Chandrachud, JJ.). HM Seervai (who appeared for the government) later lamented in his book that severability had not even been argued before the Supreme Court!

How then could one decipher the “ratio” of the gigantic and unprecedented judicial exercise that had been undertaken? To make sense and to coherently set out what had actually been decided, or at least the lowest common denominator thereof, Chief Justice Sikri embarked upon the extraordinary and somewhat controversial exercise to circulate an order sheet in the immediate aftermath of the judgement being pronounced.

The half page order sheet stated the majority view in remarkably simple terms. Paragraph 2 of the order sheet reads to say that according to the majority “Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution”. The innovative step taken by Chief Justice Sikri in the immediate aftermath of the pronouncement of the judgment on April 24, 1973 and just a day before his retirement, was undoubtedly an act of judicial statesmanship, which remains unparalleled in its sheer enormity and impact. The decisive battle to establish basic structure supremacy took place behind the scenes, perhaps in the chambers of the concerned judges, after the judgment was pronounced.

Nine out of the thirteen judges signed the order sheet circulated by the Chief Justice on that day and created constitutional history. Some eminent personalities who appeared in the case (Seervai and Andhyarujina) questioned the course adopted by Chief Justice Sikri. But in hindsight, this innovative judicial exercise was essential to capture the common minimum denominator of the disparate judgements which constituted the “majority view”.

As Nani Palkhivala was to write later of the majority view, “something precious has been salvaged out of the tempest that raged over the Government’s claim to have the power to wreck the Constitution”. He also accepted in the same book that “the principle that the basic structure or framework of the Constitution cannot be altered gives a wider scope of the amending power than the principle that none of the essential features of the Constitution can be damaged or destroyed”. But the base for further expansion and application of the basic structure doctrine had been laid.

Nani himself was at the forefront of this when he argued the Minerva Mills case in 1980. It did help that Justice Khanna, a man of unimpeachable integrity and conviction, while deciding the Indira Gandhi v. Raj Narain case, clarified his own judgment in the Kesavananda case. But that is another story to tell.

The author is a Senior Advocate at the Supreme Court of India.