Basic structure of the constitution, is it sufficient guarantee to preserve its ideals

Basic structure of the Constitution, is it sufficient guarantee to preserve its ideals?

Positioning judiciary

Fewer institutions in the world are as strong as Indian Courts. Both in terms of performance and non-performance, Indian courts occupy the highest positions. To-day there are a 4.64 million cases pending all across India in all the High Courts. We have disposed of 124,960 in just one month in February 2010. There are 31.86 million cases pending in all district and taluk level courts and we have disposed of 1.51 million cases just last month. The Supreme Court has 60,469 cases pending on 1.3.2020. Courts vie with politicians in hogging the headlines in both print and electronic media. The basic structure doctrine of what the Supreme Court as articulated puts the judiciary at a high pedestal to look up to know what the desideratum is, the irreducible minimum as it were, on what the constitutional architecture rests on.  It is a manner of understanding how the legislature and the executive are beset with limitations in their assigned roles of performance. There can be no rule, no law, why no amendment of the constitution itself that can conflict with the basic structure.

Property rights as trigger

It is only natural that you quickly will expect to know what the basic structure is. It is like God!. You kind of know that He exists or does not, or, as per your belief or non-belief, with form or without form and hence ubiquitous. When the Court brought up this doctrine in Kesavananda Bharati (1973), the court identified several attributes of the basic structure but said that they cannot spell out all. They left the basic structure as the foundation where there remains hidden several gems, but you cannot unearth them all. Law could be constantly evolving as per the requirements of the society’s needs, but can basic structure be also constantly evolving? Will it not be a dangerous quicksand if basic structure is also constantly changing?

The court’s initial assertion was in response to government policies ushering land reforms and other economic legislation where they examined the laws’ validity on the touchstone of the sanctity of fundamental rights. A strong legal brain from Tamil Nadu VKT Chari advised Nehru how to keep the courts in check against challenge in court and make them impermeable against judicial review. It took shape through the 1^st constitutional amendment to set up IX Schedule and the law that wore the cloak of the schedule or that which was dropped in that iron chest could not be opened to examine.

In a series of decisions in 1954, the Court ruled that even economic regulations that caused restrictions on property rights constituted an abridgment of the property right, and thus triggered the compensation requirement. In Bela Banerjee (1954), the Court interpreted the term “compensation” in Article 31 as requiring fair and adequate compensation. In response, the government passed the Fourth Amendment, which sought to limit compensation only to those cases where the state actually acquired property, and stipulated that it was the state—the government —not the courts, who would have the final say in determining the amount of compensation required. The battle between the judiciary and the government over property rights culminated in two landmark decisions— Golak Nath v. State of Punjab in 1967, and Kesavananda Bharati v. State of Kerala in 1973. Amendment was law under Art 13, said Golaknath. The Court invoked the doctrine of “prospective overruling,” which meant that the ruling would only apply to future amendments, and that the First, Fourth, and Seventeenth Amendment though deemed to be unconstitutional, would remain in effect. In RC Cooper, the Supreme Court did what Golaknath did not. It said that inadequacy of compensation that was illusory was surely justiciable to invalidate Bank Nationalisation. In another challenge to the Indira Gandhi government, the Court in Madhav Rao Scindia v. India invalidated the Gandhi government’s efforts to abolish the titles, privileges, and privy purses of the former rulers of the princely states.

24, 26 and 29^th amendments, symbols of open confrontation with judiciary

In response to these rulings, Indira Gandhi dissolved the Lok Sabha early (for the first time in India’s political history), and openly campaigned against the Court, promising to make basic changes in the Constitution to provide for social equality and poverty alleviation. The Twenty-Fourth Amendment, which sought to overrule Golak Nath by affirming and reasserting Parliament’s unlimited power to amend the Constitution under Article 368, including the fundamental rights provisions, and declared that such amendments were not ordinary “laws” under Article 13, and thus could not be subjected to judicial review by the Court. The government also sought to override the R.C. Cooper decision by enacting the Twenty-Fifth Amendment, which sought to make compensation associated with land acquisition laws non-justiciable, sought to give primacy to the Directive Principles in Article 39 over the Fundamental Rights provisions in Article 14, Article 19, and Article 31, and stipulated that laws enacted by the Central and state governments to give effect to the Directive Principles could not be challenged in Court. Finally, the Twenty-Ninth Amendment was enacted to add two Kerala land reform laws to the Ninth Schedule.

Basic structure, where it remains hidden

In Kesavananda, a thirteen-judge bench of the Court heard a series of challenges to the Twenty-Fourth, Twenty-Fifth, and Twenty-Ninth Amendments. In a 1,002 page decision consisting of eleven separate opinions, the Court overruled its earlier decision in Golak Nath in holding that Parliament could amend the fundamental rights provisions, but also held that under Article 368, Parliament could not enact constitutional amendments that altered the “basic structure” of the Indian Constitution. At the time of the decision, there was a great deal of confusion regarding the actual “ratio” or rationale underlying the majority decision in Kesavananda, as only six justices held that the power of constitutional amendment was not unlimited, given that there were implied limitations on it, while six other justices held that the power of amendment was unlimited. The end of the opinion, however, contained a summary of the “view of the majority” that was signed by nine of the twelve justices that asserted that Parliament could not alter the basic structure through the amending power under Article 368. (citing Kesavananda Bharati, A.I.R. 1973 S.C. at 1461–62). The “tie-breaking” opinion was Justice Khanna’s, though this was on very narrow grounds. Khanna, while also holding that there “were no implied limitations on the amending power” also held that “the words ‘amendment of the Constitution’” in Article 368 “cannot have the effect of destroying or abrogating the basic structure of framework of the Constitution.” Kesavananda Bharati, A.I.R. 1973 S.C. at 1463. However, the six other justices that held that there were implied limitations on the amendment power did not base their rationale on interpretation of the term “amendment” in Article 368. It would seem that it was grammar or semantics that became the guiding force to understand the parliament’s amending power! Consequently, several leading scholars noted that there was no real majority rationale supporting the basic structure doctrine, and because the Court never sought to consider all of the judgments to derive a ratio.

Each judge had his own concept of basic structure: (i) Supremacy of the Constitution, (ii) Republican and democratic form of government, (iii) Secular character of the Constitution, (iv) Separation of powers between the legislature, the executive and the judiciary, (v) Federal character of the Constitution. The above structure is built on the basic foundation, i.e. the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed. Justice Shelat believed “the unity and integrity of the nation” and “the mandate given to the state in the directive principles of state policy” were also basic features of the Constitution. What was particularly striking about the Kesavananda decision was that it represented a direct political challenge by the Court to the electoral mandate of Gandhi’s Congress regime, which had won 350 out of 545 seats in the 1971 elections. In its manifesto, Gandhi’s Congress party sought a mandate “for the reassertion of Parliamentary Supremacy in the matter of amendment of fundamental rights,” a direct reference to the Court’s decision in Golak Nath. In fact, in its decision, the Court went so far as to question the electoral mandate of the Congress party, noting that “[t]wo-thirds of the members of the two Houses of Parliament need not represent even the majority of the people in this country. Our electoral system is such that even a minority of voters can elect more than two-thirds of the members of either House of Parliament.”

Basic structure test applied to important decisions applying different meanings

The doctrine was put to test immediately in several important rulings. Indira Gandhi v Raj Narain was the major judgment that struck down the amendment to the Constitution insulating challenges to the election of the PM. Justice Khanna held that the Art 329(A) contravened the “democratic set-up” of the Constitution and the “rule of law,” given that democracy requires that “elections should be free and fair. In contrast, Justice Chandrachud invalidated the clause on the grounds that it violated the basic structure in that it represented “an outright negation of the right to equality,” and as “arbitrary, and calculated to damage or destroy the rule of law.” Justices Ray and Matthew held that Article 329A was invalid “because constituent power cannot be employed to exercise judicial power.”

With respect to the development of the basic structure doctrine, the truly pivotal “moment” may indeed be the Court’s twin decisions in Minerva Mills and Waman Rao, in which the Court reasserted the basic structure doctrine against Indira Gandhi’s newly elected government (Gandhi defeated the Janata coalition in January 1980) by invalidating several Emergency amendments that had limited or curbed the Court’s jurisdiction and powers of judicial review. In Minerva Mills v. Union of India, the Court heard a challenge to the Sick Textiles Nationalization Act of 1974, which had been added to the Ninth Schedule of the Constitution through the Thirty-Ninth Amendment thus, immunizing the Act from judicial review. In Waman Rao v. Union of India, the Court reaffirmed the basic structure doctrine, holding that all amendments enacted after the Kesavananda decision of April 24, 1973, including laws added to the Ninth Schedule, were subject to judicial review under the basic structure doctrine.

In 1997, the Court in L. Chandra Kumar v. India overruled its decision in S.P. Sampath Kumar. The Court in L. Chandra Kumar held that Article 323(A)(2)(d) contravened the basic structure in that it allowed Parliament to exclude the jurisdiction of High Courts under Article 226 over the administrative tribunals, and only allowing appeals to the Supreme Court. The Court’s decision represented a reassertion of judicial authority over the administrative tribunal system. In 1992, a coalition of Hindu rights organizations launched a campaign that ultimately resulted in the demolition of the Babri Masjid (which was alleged to have been built at the site of a former Rama temple) also resulting in the acquiescence and support of the BJP government in Uttar Pradesh, which led to heightened communal violence throughout India. In response, the President dismissed the BJP governments in Madhya Pradesh, Rajasthan, and Himachal Pradesh. In Bommai, the Court proceeded to uphold these dismissals under Article 356 of the Constitution on the grounds that the President’s actions were necessary to save the basic structure of the Constitution, since the state governments were not functioning in accordance with secularism, which the Court ruled to be part of the basic structure of the Constitution. The Court thus expanded its power to include the review and scrutiny of political decisions relating to state elections and politics. Through the development and entrenchment of the basic structure doctrine, the Court helped assume a “guardian” role in protecting and preserving basic features of the Constitution from being altered by political majorities. In its decisions adjudicating the constitutionality of administrative tribunals, the Court asserted the basic structure in order to safeguard judicial independence. Furthermore, its decisions in S.R. Bommai and its progeny have enabled the Court to play an active role in defending secularism and policing federalism in cases involving the central government’s emergency powers of dissolution. Additionally, the Court in I.R. Coehlo reasserted the basic structure doctrine in holding that the Court could review the validity of all amendments inserted into the Ninth Schedule after the Kesavananda decision in accordance with the basic structure of the Constitution and the fundamental rights provisions. The basic structure doctrine thus ultimately proved to be a powerful bulwark against the excesses of majoritarian politics in India. In essence, the Court’s assertion of this doctrine enabled the Court to apply the “brakes” on radical constitutional change, reassert and safeguard judicial review, and reinforce core structural features of the Indian constitution—secularism and federalism.

Basic structure doctrine used for anti-majoritarian posturing and for settling competing commitments

The Golak Nath and Kesavananda decisions represented a response to the Indira Gandhi government’s efforts to limit the Court’s ability to review land reform and nationalization laws related to property rights. The Court’s basic structure decisions in Kesavananada and later cases illustrate how courts may assert limits on governments to prevent them from amending the Constitution in a way that violates certain entrenched constitutional norms or principles. The Indian Court’s basic structure decisions solidified the Court’s “super” anti-majoritarian function in imposing limits on the abilities of majorities to do violence to the core principles underlying the Indian Constitution.

Like many world constitutions, the Indian Constitution embodies competing commitments to different goals and values. The Constituent Assembly, in framing the Indian Constitution, was thus faced with the daunting task of constructing a constitution that could lay a foundation for ameliorating systemic caste-based and economic inequality, while providing basic protections for economic rights and civil liberties and freedoms. The Indian Constitution sought to balance the Nehruvian aspirational vision of an egalitarian society contained in the Directive Principles of Social Policy, against the Fundamental Rights, a set of negative rights or limits on government power. The former articulated the “humanitarian socialist precepts” at the heart of “the Indian social revolution,” though these principles were originally designated as non­justiciable. The Fundamental Rights, in contrast, set forth explicit, justiciable negative rights, and was modeled in great part on the American Bill of Rights. But in Bommai, the Indian Court invoked the basic structure doctrine in holding that the central government could invoke its emergency powers to suspend state governments that had failed to safeguard and protect secularism. In essence, the Court held that federalism could be subordinated to another competing commitment—secularism.

Testing times for the courts

The question that remains is: Are Courts that roughly follow public opinion capable of performing what is generally understood as their core counter-majoritarian function— protecting minority rights against majoritarian excesses? The recent judicial trends have shown that in all cases, and especially in cases involving the most vulnerable civil liberties and civil rights claims, courts appear to be ill-equipped to play their most basic constitutional function.  We have now at the Centre a right wing government, which believes that this a Hindu nation; since it has a straight majority to rule, it could fashion policies the way it believes will lend power to assert its majoritarian policies; there is a blurring line between government and nation and consequently, if you voice your opinion against government or approve of  any sagacious counsel even from UN bodies, you are treated as mouthing sedition. Supreme Court rules 1992 incident at Ayodhya to be illegal. If the decision had been anchored to the settlement between parties, no question could have been asked. It looked for political expediency through a judgment and allowed the illegal demolition to be condoned by court’s permission to construct. We will hold that internet access is a fundamental right but we will trash it if government raises the bogey of national security to clamp down on all fundamental freedoms and arrest all political dissenters; if the constitutional morality of non-discrimination on the ground of gender for temple entry was the lynchpin for its central holding banning a few centuries old practice of keeping away menstruating women from Sabarimala, through a review petition, the Supreme Court cleverly reopens the case and posts it to be heard along with cases dealing with Muslim women’s entry into mosques and female circumcision practised in some communities. When Delhi was burning, if there a judge who was not willing to play Nero’s fiddle, he gets transferred. And the Chief of that court, on resuming the hearing says, let’s play fiddle, case adjourned!