Basic Structure doctrine: Defensive wall against totalitarian trends or attempt to establish judicial supremacy?

On 24 April 1973, a bench of the Supreme Court consisting of 13 judges (the largest bench ever to sit in the apex court) after five long months of regular hearings delivered a judgement, which in the words of eminent legal scholar SP Sathe was an ‘attempt to rewrite the Constitution’. The 13 judges on the bench included Chief Justice SM Sikri, Justices AN Grover, AN Ray, DG Palekar, HR Khanna, JM Shelat, KK Mathew, KS Hegde, MH Beg, P Jaganmohan Reddy, SN Dwivedi, YV Chandrachud and BK Mukherjea. The case was Kesavananda Bharati and Ors v State of Kerala. The fact that this case was heard by the largest bench ever formed by the apex court, that it garnered unprecedented attention from the media and legal fraternity, and involved the biggest legal luminaries like NA Palkhivala, HM Seervai, and Niren De makes it the most important case of Independent India. But the most striking point of differentiation that sets this case apart from all others of Indian constitutional history is the fact that on 24 April, 1973, thirteen judges delivered eleven separate opinions and what came to be called ‘statement’ by nine of them. Apart from overturning its earlier judgement in the Golakh Nath case delivered in 1967 where the apex court held that fundamental rights are given a ‘transcendental and immutable’ position and by that virtue, Parliament cannot abridge or take away any of these rights, the Supreme court of India in Kesavananda Bharati case held that Parliament is constitutionally empowered to abridge or take away any of the fundamental rights. However, while consolidating the position of the Parliament in making laws and amendments, it formulated the doctrine of “basic structure” which accorded the judiciary unlimited power of judicial review. By formulating the doctrine of basic structure, the apex court could post 24 April, 1973, review and strike down any law passed by the parliament, even the constitutional amendment, if found to be violating the basic spirit and ethos of the constitution of India. It was a classic case of giving from one hand and taking from another. In its over 800 -page judgement with a thin majority of 7:6, the apex court held that Parliament could amend any part of the Constitution so long as it did not alter or amend “the basic structure or essential features of the Constitution". Vice President’s comments and the larger message Recently Vice President of India Jagdeep Dhankar made certain remarks against the Kesavananda Bharati case which became a reason for analysing the 50-year-old judgement. Jagdeep Dhankhar while speaking at the 83rd All India Presiding Officers Conference in Jaipur recently said, “In a democratic society, ’the basic’ of any ‘basic structure’ has to be the supremacy of mandate of people. Thus, the primacy and sovereignty of Parliament and legislature is inviolable.” Then he went on to criticise the Kesavananda Bharati as according to him it led to the “compromising” of parliamentary sovereignty.   He said, “Power of the Parliament to amend the constitution and deal with legislation is not subject to any other authority. This is the lifeline of democracy. I am sure this will engage your thoughtful consideration. It was in 1973, in the Kesavananda Bharati case, the Supreme Court evolved for the first time, the right of the courts to strike down constitutional amendments that violated what it called the “basic structure”, or the fundamental architecture of the Constitution. In subsequent years, the highest court delivered significant rulings on matters that it held pivotal to this “basic structure” and in the process, parliamentary sovereignty was compromised.” Dhankhar’s comment assumes importance in the context of an ongoing tussle between the judiciary and the government over the collegium system of appointment of judges to the high courts and the Supreme Court.  Dhankhar in his maiden address to Rajya Sabha as its chairperson delivered in December last year had said the Supreme Court’s 2015 judgement striking down the NJAC Act was a “glaring instance” of “severe compromise” of parliamentary sovereignty and disregard of the “mandate of the people”. Now, picking up Kesavananda Bharati as an example to target the judiciary shows that the government is serious about fighting this supremacy war but by just using constitutional means, unlike what happened post Kesavananda Bharati verdict. It is important to recall how then-Prime Minister Indira Gandhi reacted to the judgement. Inder Malhotra in his book Indira Gandhi: A Personal and Political Biography published in 1989 writes that the unofficial reaction in the government was that it was an attack on Parliament and the Prime Minister by her enemies. The reaction to the judgement was vicious as within two days of the judgement Indira Gandhi government appointed A N Ray as the Chief Justice of India superseding three other senior-most judges. Another fallout of the judgement was the passing of the 42nd Amendment Act in 1976 which amended the Article 368 of the constitution in a manner that can nullify the decision of Kesavananda Bharati which held that Parliament’s amendment power was subject to ‘basic structure’ limitation. It is a fact that Kesavananda Bharati established judicial supremacy. It gave unlimited power to the judiciary to review government decisions. There is no doubt that the judgement delivered by the apex court was confusing and as Granville Austin in his seminal work - Working a Democratic Constitution: A History of the Indian Experience - writes, “unusual happenings” took place in the run-up to the judgement which cast a shadow of doubt on the entire process. However, there is another important aspect of this case that cannot be ignored, which is that the judiciary was asserting itself against a government and a leader who showed scant respect for the constitution, judiciary, or democratic process. Austin in his book while vividly highlighting two aspects of the judgement; the confusing and the ‘unusual happenings’ writes, “Commentaries by eminent Indian legal thinkers about Kesavananda further muddied these waters. Examining ten of these expert opinions (four of which came from justices who had been on Kesavananda bench) one finds conflicting views on aspects of the decision. For example, Justice Jaganmohan Reddy later wrote that eight judges had held that there are basic features in the Constitution. According to Justice Khanna, the majority in the case numbered seven, and nine judges signed the statement indicating that this was the view of the majority — even though two had been minority in their individual opinions”. Austin also makes an important remark when he writes that eminent legal jurist and scholar Upendra Baxi “also thought that these opinions generated ‘many paradoxes’, raised many varied and profound questions and are ’likely to create an illiterate Bar in the country’, because who would read the lengthy opinions in their entirety”. Regarding “unusual happenings” Austin writes, “The composition of the Supreme Court at the time of Kesavananda provides a useful starting point for an examination of the ‘unusual happening’ during the case to which Justice Chandrachud alluded. For Justice Reddy, these happenings had their origins well before the bench was formed. He thought Kumaramangalam, Ray and Gokhale had begun ‘packing’ the court in 1971 in expectation of an attempt to overturn Golakh Nath. As a result, Reddy believed that one judge was a Kumaramangalam nominee (probably Mathew), two were H R Gokhale nominees (probably Palekar and Chandrachud), two were nominees of S S Ray (possibly Beg and Mukherjea), and one was Sikri’s (probably Khanna)." Austin also writes that veteran socialist leader Madhu Limaye “charged in the Lok Sabha that Justice Dwivedi came to the court with the declared purpose of overturning Golakh Nath”. The genesis The case had its genesis in Kerala when in March 1970 Swami Kesavananda Bharati who was head of Edneer Mutt at Kerala’s Kasaragod challenged the Kerala government’s attempt under the two-state land reform acts to impose restrictions on the management of the religious property. According to British jurist and historian Granville Austin, it was a local lawyer who wrote to J B Dadachanji, the famous Supreme Court lawyer, who in turn shared the letter with famous jurist N A Palkhivala who agreed to take the case as he felt that the case could lead to important Supreme Court judgments. Palkhivala was right in his assessment of the importance of the case as it actually led to a judgement that changed the course of the constitutional history of India and created a solid bulwark against any attempt to subvert the constitution by any totalitarian regime in the future. While Dadachanji and Palkhivala convinced Swami Kesavananda Bharati into fighting the case under Article 29 of the Constitution, concerning the right to manage the religiously-owned property without government interference, grander issues of Parliaments’ power to amend the Constitution arose as court proceedings evolved. By creating the defensive wall of ‘basic structure doctrine’ the judgement made it nearly impossible for any future government to amend the Constitution in a manner that takes away its democratic essence and its highest regard for the fundamental rights of the citizens. Commenting upon Kesavananda Bharati, India’s one of the most respected judges VR Krishna Iyer wrote, “While infallibility is no attribute of a Constitution, its fundamental character and basic structure cannot be overlooked. Otherwise, the power to amend may include the power to repeal. This is a reductio ad absurdum. By a stroke of judicial creativity, the provision of Article 368 was justly handcuffed in Kesavananda Bharati.” The utility of basic structure doctrine Any fair criticism of the Kesavananda Bharati case needs to take one important point into account.  The circumstances under which the decision was taken by the court were extremely adverse. It was a time when the government was headed by a prime minister who was hellbent on downsizing the judiciary and scuttling its independence. As various accounts show, the alleged “packing” of the court was done with the sole aim of getting favourable decisions for the government. In spite of this, the supreme court rose to the occasion and created a solid safeguard against a totalitarian government. By all means, it was a very brave decision. The decision was taken in extraordinary times as evident from the fact that an unrelenting government and the prime minister took it personally. It led to the supersession of judges and a completely unconstitutional 42nd amendment.   But, the times have changed, and India has matured as a democracy. The striking down of NJAC did see some sharp reactions from some quarters. But nowhere an attempt or intention was shown by the government to challenge the judgement by any extra-constitutional means. So, keeping this in mind the task before today’s government and judiciary should not be to attack or defend this landmark judgement to suit its agenda, rather both, the government and judiciary should engage in a reasonable debate on its relevance in current times. Since a judgement of the Supreme Court can only be reviewed by the bench having the same or higher number of judges, the review of Kesavananda Bharati is possible only if the apex court decides to do so. Till then this ‘safety valve’ created by the apex court stays on. The writer is a journalist and researcher based in Delhi. He has worked with The Indian Express, Firstpost, Governance Now, and Indic Collective. He writes on Law, Governance and Politics. Views expressed are personal. Read all the  Latest News,  Trending News,  Cricket News,  Bollywood News, India News and  Entertainment News here. Follow us on  Facebook,  Twitter and  Instagram.