by Suchindran BN.Exactly four decades ago, the Supreme Court of India, took the unprecedented step of declaring that Parliament could not amend the “basic structure” of the Constitution. Six years earlier, the Court had already limited Parliament’s power to amend the fundamental rights by a specious line of reasoning. But while Golaknath’s case (1967) limited parliamentary power, it did not endow the judicial power with the empowering vagueness to supervise the process of constitutional amendment as did the decision rendered in Kesavananda Bharathi v. State of Kerala (1973)..Kesavananda Bharathi was unique in constitutional jurisprudence. It is possibly the longest judgement of a Constitutional Court anywhere in the world – rendered after hearings that went for over 66 days spread over a six month period. Never before had a Constitutional Court ever sat in such a large bench (13 judges); never before had a Constitutional Court arrogated to itself the power to sit in judgement over the Parliamentary prerogative to amend the Constitution. On the 24th of April, 1973, the Supreme Court of India with one judicial stroke became the sovereign authority in our political system. With that judgement, the Court became, in effect, the third chamber and highest repository of the amending power..The effects and ramifications of Kesavananda Bharathi for, both, our constitution and polity, were both immediate and far-reaching. On the very next day, the government chose to supercede the three senior most judges and appoint A.N. Ray (who had sided with the government in the case) as Chief Justice of India. This supercession of judges was one of the most unfortunate events in our judicial history and for which we continue to pay a high constitutional price. The “court packing” that had begun in the aftermath of Golaknath, the transfer of judges during the emergency and general executive interference finally led the Court giving themselves primacy in the appointment of their own successors. This removed an important check and balance on the judicial organ. The Judges’ had made themselves their own lords..The Court began, as all constitutional organs do in the absence of checks and balances, to appease the source of their legitimacy – the people and the media – who increasingly began to see the Court as a panacea for all ills. This rather naïve understanding of the nature of judicial power has led to the weakening of the legislative and executive branches by a removal of responsibility and accountability. Instead of holding their elected representatives accountable for their failures, the people have increasingly turned to the Courts to sort out issues of governance. The court began to act not as the sentinel on the qui vive as it is supposed to; but prescribing and administering their own tonics to societal ills forgetting certain inherent institutional limitations..It would not be idle speculation to state that the basic structure doctrine has saved the essential identity of our constitution from certain destruction. The years that followed justified the apprehensions of the majority that an executive government with a decisive majority in Parliament could not be trusted with unfettered powers of amendment. Indeed, it was in the case of Indira Nehru Gandhi v. Raj Narain (1975) – the immediate cause and catalyst of the emergency – that the Court had an opportunity to clarify the doctrine of basic structure and refine it to a judicially applicable and digestible form..To dispel any doubts about their motives behind the supercession, the government made an ill-fated attempt to review the judgement under Chief Justice Ray in November 1975. This attempt was famously thwarted by a supreme effort of advocacy by Nani Palkhivala, and a brave intervention by the Advocate General of Tamil Nadu, Govind Swaminadhan. Justice H.R. Khanna, had this to say about Nani’s arguments that day – “The height of eloquence to which Palkhivala had rose on that day had seldom been equaled and never surpassed in the history of the Supreme Court”..The Court had merely given life to the doctrine, but it was the events of the emergency that nurtured and embedded it into the fabric of our constitution by giving it legitimacy in the minds of the people and our constitutional adjudicators..Initially, Constitutional scholars trained in the Blackstonian black letter law tradition of parliamentary supremacy found the doctrine difficult to accept. Foremost among them was H.M. Seervai, who acted as lead counsel for the State in the case. But even he was to note in a later edition of his book on Constitutional law that “the consequences of rejecting the basic structure doctrine would be so grave, and so opposed to the objectives of the Constitution, that the consequences of uncertainty would be insignificant by comparison.”.Since then the doctrine has entrenched itself in our legal system. As one way led to another, there are few today who would contemplate the road not taken. The doctrine has spread beyond our shores and has found favour in Pakistan and Bangladesh, and has been judicially debated in South Africa and other countries. This experience has also made many post 1973 constitutions to favour the inclusion of some entrenched provisions that cannot be amended by the legislative will..But did we make a constitutional choice from which there is no turning back? And is the ever expanding basic structure a permanent solution? With over 600 constitutional judges, the danger is that constitutional interpretation becomes a literary exercise in free verse. The court would do well to remember the warning of Maurice Gwyer that any assumption of authority beyond the express constitutional provisions limiting the legislative will would result in putting in the hands of the judiciary “powers too great and too indefinite either for its own security or protection of private rights.” Seervai also stated that the greatest danger to the administration of justice sometimes comes from the genuine desire of judges to do justice in each individual case..It is no doubt true that the basic structure doctrine was an extraordinary solution to meet the exigencies of an extraordinary time but major constitutional decisions do not happen in a political vacuum. It is important for us to remember this as the very open-ended nature of the basic structure permits each generation to define it for themselves and see that the requirements of necessity are met. The chapter on the basic structure in our constitutional law textbooks is far from closed..Suchindran BN is an advocate practicing in the Madras High Court. He has previously worked in the chambers of Senior Advocate Arvind Datar.
by Suchindran BN.Exactly four decades ago, the Supreme Court of India, took the unprecedented step of declaring that Parliament could not amend the “basic structure” of the Constitution. Six years earlier, the Court had already limited Parliament’s power to amend the fundamental rights by a specious line of reasoning. But while Golaknath’s case (1967) limited parliamentary power, it did not endow the judicial power with the empowering vagueness to supervise the process of constitutional amendment as did the decision rendered in Kesavananda Bharathi v. State of Kerala (1973)..Kesavananda Bharathi was unique in constitutional jurisprudence. It is possibly the longest judgement of a Constitutional Court anywhere in the world – rendered after hearings that went for over 66 days spread over a six month period. Never before had a Constitutional Court ever sat in such a large bench (13 judges); never before had a Constitutional Court arrogated to itself the power to sit in judgement over the Parliamentary prerogative to amend the Constitution. On the 24th of April, 1973, the Supreme Court of India with one judicial stroke became the sovereign authority in our political system. With that judgement, the Court became, in effect, the third chamber and highest repository of the amending power..The effects and ramifications of Kesavananda Bharathi for, both, our constitution and polity, were both immediate and far-reaching. On the very next day, the government chose to supercede the three senior most judges and appoint A.N. Ray (who had sided with the government in the case) as Chief Justice of India. This supercession of judges was one of the most unfortunate events in our judicial history and for which we continue to pay a high constitutional price. The “court packing” that had begun in the aftermath of Golaknath, the transfer of judges during the emergency and general executive interference finally led the Court giving themselves primacy in the appointment of their own successors. This removed an important check and balance on the judicial organ. The Judges’ had made themselves their own lords..The Court began, as all constitutional organs do in the absence of checks and balances, to appease the source of their legitimacy – the people and the media – who increasingly began to see the Court as a panacea for all ills. This rather naïve understanding of the nature of judicial power has led to the weakening of the legislative and executive branches by a removal of responsibility and accountability. Instead of holding their elected representatives accountable for their failures, the people have increasingly turned to the Courts to sort out issues of governance. The court began to act not as the sentinel on the qui vive as it is supposed to; but prescribing and administering their own tonics to societal ills forgetting certain inherent institutional limitations..It would not be idle speculation to state that the basic structure doctrine has saved the essential identity of our constitution from certain destruction. The years that followed justified the apprehensions of the majority that an executive government with a decisive majority in Parliament could not be trusted with unfettered powers of amendment. Indeed, it was in the case of Indira Nehru Gandhi v. Raj Narain (1975) – the immediate cause and catalyst of the emergency – that the Court had an opportunity to clarify the doctrine of basic structure and refine it to a judicially applicable and digestible form..To dispel any doubts about their motives behind the supercession, the government made an ill-fated attempt to review the judgement under Chief Justice Ray in November 1975. This attempt was famously thwarted by a supreme effort of advocacy by Nani Palkhivala, and a brave intervention by the Advocate General of Tamil Nadu, Govind Swaminadhan. Justice H.R. Khanna, had this to say about Nani’s arguments that day – “The height of eloquence to which Palkhivala had rose on that day had seldom been equaled and never surpassed in the history of the Supreme Court”..The Court had merely given life to the doctrine, but it was the events of the emergency that nurtured and embedded it into the fabric of our constitution by giving it legitimacy in the minds of the people and our constitutional adjudicators..Initially, Constitutional scholars trained in the Blackstonian black letter law tradition of parliamentary supremacy found the doctrine difficult to accept. Foremost among them was H.M. Seervai, who acted as lead counsel for the State in the case. But even he was to note in a later edition of his book on Constitutional law that “the consequences of rejecting the basic structure doctrine would be so grave, and so opposed to the objectives of the Constitution, that the consequences of uncertainty would be insignificant by comparison.”.Since then the doctrine has entrenched itself in our legal system. As one way led to another, there are few today who would contemplate the road not taken. The doctrine has spread beyond our shores and has found favour in Pakistan and Bangladesh, and has been judicially debated in South Africa and other countries. This experience has also made many post 1973 constitutions to favour the inclusion of some entrenched provisions that cannot be amended by the legislative will..But did we make a constitutional choice from which there is no turning back? And is the ever expanding basic structure a permanent solution? With over 600 constitutional judges, the danger is that constitutional interpretation becomes a literary exercise in free verse. The court would do well to remember the warning of Maurice Gwyer that any assumption of authority beyond the express constitutional provisions limiting the legislative will would result in putting in the hands of the judiciary “powers too great and too indefinite either for its own security or protection of private rights.” Seervai also stated that the greatest danger to the administration of justice sometimes comes from the genuine desire of judges to do justice in each individual case..It is no doubt true that the basic structure doctrine was an extraordinary solution to meet the exigencies of an extraordinary time but major constitutional decisions do not happen in a political vacuum. It is important for us to remember this as the very open-ended nature of the basic structure permits each generation to define it for themselves and see that the requirements of necessity are met. The chapter on the basic structure in our constitutional law textbooks is far from closed..Suchindran BN is an advocate practicing in the Madras High Court. He has previously worked in the chambers of Senior Advocate Arvind Datar.
