Date: 21/09/2022

Relevance: GS-2: Indian Constitution - historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

Key Phrases : Sankari Prasad vs. Union of India case, Sajjan Singh vs. State of Rajasthan case, Constitution 103rd Amendment Act, 2019, Kesavananda Bharati vs State of Kerala case (1973), I.R. Coelho vs. State of Tamil Nadu, Indira Gandhi vs. Raj Narain (1975).

Context:

• Over the past week, the media has been faithfully reporting proceedings before a Bench of five judges of the Supreme Court as to whether the Constitution 103rd Amendment Act, 2019 violates the “basic structure of the Constitution”.
• After the hearing is over, the judges will render their decision. But in the meanwhile, here are some ideas about the origin of the Constitution’s “basic structure”.

Background

• The concept of ‘basic structure’ came into existence in the landmark judgment in Kesavananda Bharati vs State of Kerala case (1973).
• The Constitutional Bench in the above case ruled 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.
• However, the court did not define the term ‘basic structure’, and only listed a few principles — federalism, secularism, democracy - as being its part.

Origin of Basic Structure

• Courts are empowered under our Constitution to invalidate not only executive orders, but also legislative enactments that violate any part of the Fundamental Rights guaranteed in Part III of the Constitution (Bill of Rights).
• But as to whether they are also empowered to adjudicate on the validity of constitutional amendments - passed with the requisite special majority and following the procedure prescribed in Article 368 — the Constitution is silent.
• Up to the year 1989, with one single political party almost consistently returning to power at every election, the judges had plumbed the depths of silence in the world’s longest Constitution searching for some limitations on the amending power.
• They did not find one as they said so in a Bench decision of five judges in Sankari Prasad vs. Union of India case (1951).
• Fourteen years later — a different Bench of five judges — said no again in Sajjan Singh vs. State of Rajasthan case but this time with some hesitancy.
• Ultimately, in 1973 in Kesavananda Bharati, a larger Bench of 13 judges sat for the longest time (several months) listening to arguments on what was described as “an issue of grave moment, not only to the future of this country but to the future of democracy itself!”
• In a fractured verdict, by a 7:6 majority, it held that :
  • Though under Article 368 Parliament’s power to amend the Constitution was plenary,
  • Extending to each and every article of the Constitution including the articles enumerated in the Fundamental Rights Chapter,
  • No amendment was permissible if it altered “the basic structure or framework of the Constitution”.

Criticism to judgment

• By reading implied limitations in the amending power, the Supreme Court established a new precedent (overriding two prior judicial precedents). But the majority view was roundly criticized.
• It was said that by propounding the basic structure theory, the guardians of the Constitution had at one time become guardians over the Constitution — constitutional adjudicators had assumed the role of constitutional governors!

Indira Gandhi Case

• With the Congress party having secured an overwhelming majority in Parliament after the general elections of 1971, the country might have moved into a period of grave constitutional crisis.
• But then, in the High Court of Allahabad, Indira Gandhi lost the election petition filed against her by Raj Narain and a prime minister in office had been unseated in Parliament.
• Raj Narain had contested against her in the 1971 elections from Rae Bareilly.
• And whilst her appeal to the Supreme Court was pending, an Internal Emergency was first imposed from June 25, 1975.
• Then, in August 1975, Parliament hurriedly passed the Constitution 39th Amendment Bill.

• In effect, the judgment of Justice Jagmohan Lal Sinha of the Allahabad High Court — holding Mrs. Gandhi guilty of “corrupt practice” under the existing election laws — was attempted to be reversed by a constitutional amendment.
• This crude attempt was resisted by a Constitution Bench of five judges, relying for the first time after Kesavananda Bharati, on the basic structure theory of the Constitution.
• In Indira Gandhi vs. Raj Narain (1975), a Constitution Bench of the highest court held — under compulsion of a monstrous law — that free and fair elections were a fundamental part of the Constitution and beyond the reach of the amending power.
• All the five judges on the Bench have been a part of the Bench of 13 judges in Kesavananda Bharati. It was this decision that helped to cement the “basic structure theory”.

Giving it permanent Constitutional Validity

• The decision constitutes a high watermark in the assertion of the Court’s judicial power in the teeth of a determined majoritarian regime.
• Much later, in 2007, a different Bench of nine judges in I.R. Coelho vs. State of Tamil Nadu, in a unanimous decision, authoritatively upheld the narrow majority view (of 7:6) in Kesavananda Bharati, and gave it permanent constitutional validity.

Way Forward

• The basic structure theory was the response of an anxious and activist court to the experience of the working of India’s Constitution during its first 25 years.
• It has come to stay more because of political compulsions than acquiescence because initially for a long period, no single political party in India had secured a two-thirds representation in Parliament.
• A two-thirds majority is required for the passing of a constitutional amendment.
• After the return - since 2019 - to one-party super-majoritarian rule, it remains in force today only because it has not been successfully invoked on too many occasions.

Source: Indian Express 

Mains Question:

Q. What do you understand about the 'Doctrine of Basic Structure'? Discuss its evolution and significance in strengthening democracy. [250 Words].