Problems with the Application of the Basic Structure Doctrine in India: Why Limiting the Constitutional Amendment Powers of the Legislature is a Bad Idea

Thabitta R

Christ University

“…ancient societies had their mythologies; constitutions are, today, the mythologies of modern societies…” -Dominique Rousseau

The introduction of the basic structure doctrine by the Supreme Court of India in Sajjan Singh v. State of Rajasthan has been seen as a constitutional revolution that encapsulated the very soul of the Constitution of India. There remains a general consensus among constitutional scholars that the doctrine is a necessary moral good. The legal community believes that the country was unrecognisably transformed after the Supreme Court introduced the doctrine. I argue instead that the doctrine has been interpreted in conflicting terms and damages the principles upon which the original Constitution is founded. 

What is the Basic Structure Doctrine?

The basic structure doctrine shields certain provisions of India’s Constitution from amendment. The court took its inspiration from Professor Dietrich Conrad’s lecture on limiting the amending powers of the legislature (the “implied limitation” theory). The doctrine allows parts of the Constitution to be permanently beyond the reach of the amending powers of the national legislature, thereby keeping it superior even to the will of the general populace, which Conrad describes as being ultimately responsible for the validity of the document. The doctrine has been used to shield Articles from amendment; for example, in I.R. Coelho v. State of T.N., a case involving the power of the judiciary to review constitutional amendments dealing with agrarian reform, Articles 14, 19 and 21 were shielded. However, it has also been applied to discover the intent of the constitution makers in framing the constitutional provisions, as in the case of Indira Gandhi v. Raj Narain, where the legislature passed an amendment blocking the judiciary from deciding on matters relating to national elections. The court decided that the legislature cannot limit the functions of the judiciary without violating the principle of separation of powers, which was considered to be important to the framers of the Constitution. 

Problems with the Doctrine

The basic structure doctrine is unsuitable and destructive to the legitimacy of the constitution for three reasons. Fundamentally, it is inconsistent with the principle of separation of powers. It is true that the court presumed the principle to be a part of basic structure, however, it is impossible for both concepts to coexist. The legislature makes the laws (and the constitution) and the judiciary judges. The judiciary cannot rewrite the Constitution without even the minimum requirement of a special majority that is imposed on the legislature. In I.R. Coelho, the court explained that the appropriate procedure for passing a constitutional amendment ends with the judiciary evaluating its conformity with the basic structure. What follows is a constitutionally impotent legislature, and a judiciary that creates as well as interprets the law. A system of checks and balances is healthy only when the duties of one branch is not usurped by the another. A court may have the power to review, but not rewrite a constitutional amendment. 

The second difficulty with the basic structure doctrine is the vagueness and elusiveness of the basic and essential features of the Constitution. This is best illustrated by judicial attempts to identify the parts of the constitution that are ‘basic’. In Kesavananda Bharti v. State of Kerala, each of the judges on the bench had their own conclusion. According to Sikri, J, what were essential included the supremacy of the Constitution, secularism and federalism. None of these items made it to the list prepared by Shelat and Grover, JJ, who identified the Directive Principles of State Policy and the maintenance of the unity and integrity of the State. Disagreeing with the rest of the bench, Hegde and Mukherjee, JJ, prioritised individual rights. 

When the highest law of a country is not defined, persons in authority can manufacture definitions that can serve their political ambitions. It is, thus, dangerous to leave the meaning of ‘basic structure’ open-ended. The Supreme Court acknowledged in J&K National Panthers Party v. Union of India that defining the basic structure would be dangerous as values of the citizenry change over time. Professor Conrad advocated for the basic structure doctrine because he wanted some values to be written in stone no matter how many times  other values change. Not defining the concept defeats the purpose of having a basic structure. In any case, having a defined basic structure is also precarious because it steals the power of the citizenry to determine the provisions of their constitution. 

When it comes to actually defining the basic structure, the court in Glanrock Estate (P) Ltd. v. State of T.N. claimed that some fundamental rights are not the basic structure while all of the basic structure are some fundamental rights. In its own words, “Violation of fundamental rights, may not, therefore, ipso facto, violate the basic structure doctrine, but a law which violates the basic structure invariably violates some of the rights guaranteed under Part III, but not vice versa.” This argument begs the question of what the difference is between the ‘fundamental’ and the ‘basic’. It is a tautological mishap to say that fundamental rights are those that are inviolable (as held in innumerable cases including Sajjan Singh), but violable (a) when outside the basic structure, and (b) when bound by reasonable restrictions despite being within the basic structure. In the case of Raghunathrao Ganpatrao v. Union of India, the court hiccupped its way into defining the basic structure as the essential features that need not be ‘integral’. “Basic but not fundamental” and “essential but not integral” are tricky guidelines for values meant to be the fundamental law of a society. 

Thirdly, the basic structure doctrine tries to solve a problem that does not exist, namely, the ambiguity on which parts of the constitution can be amended. The doctrine was a response to the question of whether constitutional amendments can themselves be subject to judicial review, which was first raised in Shankari Prasad v. Union of India. Article 13 claimed that the court shall have the power to strike down any law which was contrary to the fundamental rights listed in Part III, even so it was unclear if the word “law” applied to constitutional amendments that fit the bill. The obvious answer is that constitutional amendments are as amendable as the constitution itself because the legislature takes the role of the constituent assembly during the amending process. The source of the doctrine is extra-legal, even though it has been poetically (and ambiguously) described as “flowing from the silence of the constitution.” Amendments should not be more durable than the original Constitution. Judicial hesitation stems from a fear that constitutional amendments may displease some citizens, but this obstructs the constitutionally-prescribed democratic processes through which the Constitution must be amended.

Conclusion

The various shortcomings of the basic structure doctrine illustrate its unsuitability to the Indian Constitution. It was intended to be the law of all laws: to protect the good and frighten the bad. Instead, (a) it deviates from the theory of separation of powers, which is ironically a part of the basic structure, (b) it cannot be defined and is vulnerable to being used for all and any purposes, and (c) it does not provide a technical solution to the amendment of constitutional amendments, which was the reason for its birth. Fundamentally, the fences drawn by the basic structure doctrine around unspecified constitutional matters are constitutionally deviant.

Thabitta R is a student pursuing her master’s degree in Constitutional and Administrative Law in Christ University, India. She had also worked as a co-editor for the newsletter of Tamil Nadu National Law University (TNNLU), India, where she was awarded the gold medal for securing the third place in BA LLB (Hons)

Suggested Citation: Thabitta R, “Problems with the Application of the Basic Structure Doctrine in India: Why limiting the constitutional amendment powers of the legislature is a bad idea” IACL-AIDC Blog (10 February 2021) https://blog-iacl-aidc.org/new-blog-3/2022/2/10/problems-with-the-application-of-the-basic-structure-doctrine-in-india-why-limiting-the-constitutional-amendment-powers-of-the-legislature-is-a-bad-idea.