When we look from a jurisprudential point of view, according to the theory of Hans Kelsen’s “Pure theory of law”, the Constitution of any country represents the Grundnorm. These basic norms comprise fundamental principles, laying down the foundation of a civil society that forms the basic structure of the Constitution.[1] The basic structure doctrine in India has expanded or has been tried to be defined on a case-to-case basis which makes it ambivalent and unclear. This post will argue that Parliament should codify basic structure doctrine as it will lead to more clarity in the basic structure doctrine and justify this stand by claiming that such codification leaves no unchecked power of judicial review. The first part of this post will give a brief overview of the basic structure doctrine. The second part will present arguments in favour of its codification. Lastly, it will analyze whether Parliament could ever codify a rule they have criticized from its very origin.
John Marshal, an American Chief Justice has once stated, “A constitution is framed for ages to come, but its course cannot always be tranquil”[2] The Constitution must be able to adjust itself according to changing circumstances, and the same was recognized by the members of the constituent assembly which gave Parliament a power to make amendment in the Constitution under Article 368 of Indian Constitution which includes a power to amend Article 368 itself.[3]
However, basic structure doctrine ensures that the essential defining features of the Constitution are not lost in such amendment. The decision given in Keshavananda Bharti has attracted criticism as well as positive feedback by constitutional law experts, academicians, and scholars as Keshavananda Bharti judgement is seen as a remarkable move by the Indian judiciary in judicial activism. There have been debates about the legitimacy of basic structure doctrine like Raju Ramachandran has argued that it is illegitimate for the reasons of it being anti-democratic due to the highly discretionary nature of the judicial review,[4] while some have maintained that doctrine is legitimate from both legal and moral aspects.[5] In the further essay, I will argue that such uncontrolled judicial review is itself affecting a fundamental feature of the Constitution, which is the separation of powers.
Rabindra Pathak has argued that the power of this judicial review has very often invited severe criticism from the various organs of state for the fact that the judiciary has time and again exceeded its “constitutionally permissible limits” and hence, violated the basic principle of separation of powers, which is one of the very basic features of the Indian Constitution post-Kesavananda.[6]
Virendra Kumar discusses the ‘fragile’ nature of basic structure doctrine, which was due to divided decision in Keshavananda and followed further, which made the task in IR Coelho difficult.[7] This led to different approaches given to the same doctrine in other cases, which led to ambivalence; for instance, in Kesavananda judgement, when the issue of the 29th amendment and its constitutional validity was considered, a group of Judges led by Sikri CJI held it to be valid but ‘conditionally’ and the condition is that it does not violate the basic structure of Constitution. In contrast, the other six judges led by Ray J held the 29th amendment to be constitutional without any condition.
According to Soli Sorabjee, a former Attorney General of India, judgement in Keshavananda Bharati imposed limitations clearly on the constituent power of Indian Parliament concerning the principles underlying certain fundamental rights. He further pointed out “…that judgment is not conducive to clarity. It has introduced nebulous concepts like the essence of the rights test. Besides, apart from the express terms of Articles 21, 14 and 19, what are the principles underlying there under?”[8] This led to an ambivalence, which was the reason for ‘fragile’ nature and generating confusion in further decisions on basic structure doctrine[9] , and this explains the need for some clarity on the doctrine, which limits the judicial review power in some way which was also felt in Coelho decision as I argue further.
IR Coelho judgement had raised serious issues regarding the basic structure and posed a question on whether it’s the time to define basic structure and its application exhaustively to understand it better. It was also held that “it is inconceivable that the authority to enact law and decide the constitutional validity of the same should vest in one and the same authority, namely, the legislature.”[10] I agree with Satya Prateek when he mentions IR Coelho as a new beginning in the right direction as the basic structure is intended for protecting constitutional values in crisis but rather has been used for “influencing the course which state policy might take in future.”[11] IR Coelho found a way to regulate basic structure doctrine, i.e., ‘rights test’. According to the test, it is the consequence and not the form of an amendment that will determine if the ‘basic structure’ of the Indian Constitution is being compromised. There is neither clarity on what will apply, and to whom it will apply, as argued by Madhav Khosla, that judiciary has restrained from elaborating on the category of what it means by basic structure as it will take away their power to decide on what it calls ‘spirit of the law’.[12]
The Court has used two reasons for its intervention. The first is that although founders had not explicitly restricted the amendment of the Constitution, there were implied limits evident from constituent assembly debates. Secondly, the judiciary has argued for principles of civilization and good governance, which all democracies should follow.[13] But these reasons still fail to explain how a defined basic structure would limit its application to preserve constitutional values. Similarly, the argument of unneeded rigidity against defined basic structure fails because the ambivalence in judicial review leads to a clear position of law recognizing the basic principles, which I don’t believe are changing with time even if the Constitution is malleable. Comparison can be drawn to German law, which has codified the unamendable part of its Constitution, but the codified part is still open to interpretation.[14]
In the Indian scenario, a codified form of doctrine would at least provide a stable direction of decision making by the Indian judiciary, even if open to interpretation and judicial review. No unanimity in Keshavananda Bharati judgement became a significant reason for criticism of the judgement, and basic structure doctrine as there was not a set of principles or Articles of Constitution which are not open to amendments like defined in the German Constitution and what the judgement gave was only ideals which also had no agreement amongst the majority opined judges as to the classification of these ideals.
Ramaswamy argues that Parliament should enact an amendment that recognizes basic structure doctrine[15] ; however, Madhav Khosla argues that this solution is itself difficult as Parliament is unlikely to agree to something which they have criticized, and even if they decide to come to a structure mutually, it is highly unlikely for them to conclude as to what would form the basic structure of Constitution. It is also highly likely for the judiciary to strike down such amendments as violating basic structure by limiting their power of judicial review. It is also evident that while deciding a case, the judiciary left its scope of the principles of the basic structure open for further interpretation on a case-to-case basis. In such a case-to-case basis and other differences in what constitutes basic structure, as discussed by Upendra Baxi that, these opinions lead to ‘many paradoxes’ and raise ‘many varied and profound questions’ and were ‘likely to create an illiterate Bar in the country’, no one would read on the entire lengthy decisions.[16]
Therefore, it is submitted while concluding that defining the basic structure doctrine is necessary to clarify the doctrine, which aims to conserve basic constitutional principles. The judiciary should not be given unlimited power based on an indeterminate principle. Defining basic structure doctrine may not be an easy step, but as suggested by IR Coelho, it is a vital step. As pointed out by Fali S. Nariman in an article titled “Constitution under threat”, the Indian Constitution has survived because of the Basic structure doctrine; he named the basic structure doctrine as the single most crucial factor that is the reason for the survival of the Constitution possible in its true essence, and a balance between the power of judicial review and parliament power to amend can be attained by such codification of Basic structure even if its origin lies in judicial decision-making. Therefore, as stated earlier in the essay, I believe that codification of the basic structure would lead to a clear direction for the judiciary limiting their power of judicial review.
Authors Name: Vansh Singla & Divyansh Saluja (Jindal Global Law School, Sonipat)
References:
[1] Virendra Kumar, “Basic Structure of the Indian Constitution: Doctrine of Constitutionally controlled governance [from Kesavananda Bharati to I.R. Coelho]” (2007): Journal of the Indian Law Institute 49, no. 3 365-98. http://www.jstor.org/stable/43952120. pp. 365.
[2] Indian Constitution, “Sixty years of our Faith” Indian Express (2nd February 2010).
[3] The Constitution of India, Article 368.
[4] Raju Ramachandran, “The Supreme Court and the Basic Structure Doctrine” (New Delhi 2000) 108.
[5] Sudhir Krishnaswamy, “Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine”, (New Delhi 2009) 164-229.
[6] Rabindra KR Pathak, “Constitutional Adjudication in India: A Study with Special Reference to Basic Structure Doctrine” (2013) pp. 37.
[7] Kumar (n 1) 366-367.
[8] Aqa Raza, “The Doctrine of ‘Basic Structure’ of the Indian Constitution: A Critique” (SSRN Electronic Journal 2015) https://dx.doi.org/10.2139/ssrn.2661127 pp.24.
[9] Keshavananda Bharati v State of Kerala, (1973) 4 SCC 225.
[10] I.R. Coelho v. State of Tamil Nadu (2007) 2 SCC1 (para 143).
[11] Satya Prateek, “Today’s Promise, Tomorrow’s Constitution: ‘Basic Structure’, Constitutional Transformations and the Future of Political Progress in India” (1 NUJS L. Rev. 2008) 418
[12] Madhav Khosla, “The Ninth Schedule Decision: Time to Define the Constitution’s Basic Structure” (42 (31) Economic and Political Weekly 2007), pp. 3203-3204 https://www.jstor.org/stable/4419864 accessed on 8.10.19
[13] Nick Robinson, “Expanding Judiciaries: India and the Rise of the Good Governance Court” (8 Wash. U. Global Stud. L. Rev. 1 2009) 27.
[14] Dieter Conrad, “Basic Structure of Constitution and Constitutional principles” 1999) pp.487
[15] Ramaswamy R. Iyer, “Constitutional Dilemmas” (41 (21) Economic and Political Weekly 2006), pp. 2064-2071 https://www.jstor.org/stable/4418260 accessed on 20 October 2019.
[16] Upendra Baxi, “The Constitutional Quicksands of Kesavananda Bharati and the Twenty-Fifth Amendment” (1974) 1 SCC (Jour) 45.
