50 Years of Kesavananda Bharti
India is celebrating the 50th anniversary of the landmark Kesavananda Bharti decision this year, which concretized what we now call the ‘basic structure doctrine’. The doctrine emerged in a very challenging political environment of the 1970s, when the executive launched a frontal attack against the judiciary in its effort to establish a form of parliamentary sovereignty in India. Using the basic structure doctrine, the judiciary not only reaffirmed the idea of constitutional supremacy but also secured other crucial aspects of the Constitution, including the independence of the judiciary. However, 50 years on, with the election of a relatively strong and autocratic union government, the doctrine appears to be returning to a state of precariousness. This blogpost explains how the doctrine came into existence and details the controversies surrounding its creation and use. It emphasizes the important role it has played in preserving Indian democracy and argues that we must resist the BJP government’s current attack on the doctrine.
The Basic Structure Doctrine
The basic structure doctrine provides that the power of the legislature to amend the Constitution is not plenary or unlimited. The legislature is a creature of the Constitution, and therefore, while exercising the ‘constituted power’ to amend it, the legislature cannot damage or destroy the basic features of the Constitution that are fundamental to its identity.
It is important to note that basic structure doctrine does not dictate that certain provisions of the Indian Constitution are unamendable or that the basic features identified at a certain point in time remain unamendable in eternity. The basic structure doctrine was developed precisely to negate such viewpoints. In I.C. Golaknath (1967), the Supreme Court held that the power of the Parliament to amend the Constitution does not extend to fundamental rights. Reversing this position, the Kesavananda Bharti court clarified (see conclusions of the majority opinions) that while the Parliament may amend every provision of the Constitution, it cannot amend them in a way that would destroy or damage the basic structure of the Constitution. Moreover, the Court consciously avoided using the term ‘change’. It instead used higher intensity terms like ‘destroy’ and ‘damage’, which indicates that the Parliament is also vested with the power to change the basic structure of the Constitution, though it cannot be upended. Therefore, if India witnesses a constitutional moment in the future where the citizens demand and the Parliament decide to replace the parliamentary system of governance with a presidential system or replace judicial review in certain situations with an equivalent independent and impartial review method, it would not be prohibited under the basic structure doctrine. Contrary to the criticisms that unamendability tacks the civilization to the ethos of the past (see pages 188-189), the basic structure doctrine allows space for constitutional transformations.
One criticism that the basic structure doctrine has faced over the years is the anti-democratic elements around its inception and use. Unlike the German Constitution, the Indian Constitution does not envisage any eternity clause identifying its basic features. Therefore, it is commonly argued that by inventing this doctrine, the judiciary has assumed to itself the power to decide the identity of the Constitution and the final vote on the constitutional amendments passed by the legislature.
Another factor that makes this criticism pressing is that the Court has yet to produce an exhaustive list of such features, perhaps to ensure flexibility at the time of judicial review and allow society to progress. In the Kesavananda Bharti decision, every judge deciding in favor of the basic structure doctrine presented their own list of basic features. For instance, Chief Justice Sikri noted that such features include the idea of constitutional supremacy, republican and democratic forms of government, separation of powers between three organs of the government, federalism, and secularism. Over the last 50 years, the Court has read other features of the Indian Constitution as part of the basic structure. These include the right of the citizens to seek judicial review, the right to equality, the right to life, and the independence of the judiciary. This practice creates uncertainty about the basic features of the Constitution and vests the judiciary with a form of whimsical authority over the legislature.
The Politics of the 1970s and the Inception of the Basic Structure Doctrine
As noted above, the ideas around the restriction on the power of the legislature to dismember the Constitution – to use Professor Richard Albert’s phrase – using the amendment powers were first concretized by the Supreme Court in a 1967 decision called IC Golaknath (though the judges had made certain observations along similar lines in a previous case called Sajjan Singh). In response, the then Indira Gandhi government introduced several amendments to the Constitution in 1971 to nullify the effects of the Golaknath decision and limit the Court’s power to review constitutional amendments. At the same time, because the government had lost a few important cases in recent years, there were attempts to pack the court with favorable judges. In fact, there were rumors of not appointing Justice S.M. Sikri as the Chief Justice in 1971, breaking away from the tradition of appointing the senior-most supreme court judge as the Chief Justice of India. Though the government didn’t pursue this path, it did appoint nine judges during the tenure of Justice Sikri, all of whom but one, Justice HR Khanna, were the government’s nominees. Justice Khanna would go on to write a powerful dissent against the government’s decision to suspend habeas corpus and other fundamental rights during the national emergency of 1975-76.
Kesavananda Bharti involved a challenge to the amendments introduced in 1971. The Court decided the case with a razor-thin majority of 7:6. The judgment was pronounced on the last day of Justice Sikri’s tenure. The next day, the government finally broke away from the tradition and appointed a junior but favorable judge as the Chief Justice of India, superseding three senior judges, all of whom decided against the government in Kesavananda Bharti.
In 1975, after imposing a national emergency in India, the Indira Gandhi government introduced the 42nd amendment to the Constitution to nullify the effects of Kesavananda Bharti. However, the Court first reaffirmed the basic structure doctrine in 1975 in Indira Gandhi v. Raj Narain and then struck down the relevant provisions of the 42nd amendment in Minerva Mills in 1980. By that time, the national emergency was lifted, and Indira Gandhi was voted out of power, thus, putting a stop to the government’s continuous assault on the idea of constitutional supremacy.
Having won this battle, in the next decade, the Court started asserting the power to appoint its judges to secure itself from further attempts of court packing. The process began in 1981 and culminated with the establishment of the collegium system of appointments. In 2015, when the Modi Government attempted to replace the collegium system with a 6-member judicial appointments commission that could possibly neutralize the primacy of the judiciary in appointments, the Court struck down the amendment using the basic structure doctrine. Therefore, with the inception of the basic structure doctrine, the Court maneuvered two actions – it saved the idea of constitutional supremacy and laid the foundations for securing its independence from the executive.
Where the Doctrine Stands Today
Such success of the basic structure doctrine in creating friction in the path of the legislature to amend the Constitution beyond recognition has catalyzed the doctrine to travel globally. It has been adopted in several jurisdictions, including Bangladesh, Belize, Malaysia, Pakistan, Slovakia, and Taiwan. It has survived academic scrutiny, and given that we are in the age of abusive constitutionalism or autocratic legalism where the tools of constitutional change are frequently used by autocratic leaders to entrench themselves in power, the judges stand vindicated. The basic structure doctrine provides a critical external check against the abuse of the power to amend the Constitution.
Unfortunately, owing to the current political climate in India, the doctrine appears to be returning to a state of precariousness similar to that it experienced during its inception. However, the challenges are different this time. As noted in the previous section, in the 1970s, the challenge to the basic structure doctrine was primarily about institutional supremacy and the justificatory void for vesting the final say on the Constitution with the judiciary. Today, the biggest challenge to the doctrine comes not from any justificatory void but from its content. The ruling political executive desires its death and seeks the emergence of the idea of parliamentary sovereignty to ensure that its ideological goals find no friction in the courts.
These intentions were laid bare in a few speeches delivered by senior constitutional authorities earlier this year. For instance, while addressing the 83rd All India Presiding Officers Conference, the Vice President noted, “In 1973, a wrong tradition [the basic structure doctrine] was started. … I cannot subscribe to that. Can the power of the legislature to amend the Constitution depend on a different institution? Can the Parliament allow its verdicts to be subject to another authority? … This cannot be done. … It is not appropriate for Indian democracy for any institution to invalidate any law passed by the Parliament. Otherwise, it would be difficult to state that we are a democratic nation.” (translated by the author). This position was later reiterated by the Speaker of the Lower House of Parliament.
Indeed, the ruling executive has made clear that they consider parliamentary sovereignty the only basic feature of the Indian Constitution. Only by this reformed imagination could the BJP justify India’s constitutional transformation and align it with its Hindutva ideology while retaining the veneer of democracy. This challenge is real and certain, though currently weak due to the political weakness of the BJP (in numerical terms). But a lot depends on the upcoming 2024 general elections.
Conclusion
Under the present Indian government, both the ideas of constitutional supremacy and judicial independence are being threatened, thereby inviting a challenge to the appropriateness of the basic structure doctrine. While the current Chief Justice has called the doctrine the guiding north star, senior government officials have hinted that a challenge from the executive is imminent. It is, therefore, important that people recognize the pragmatism that underpins the basic structure doctrine and the role it has played in strengthening Indian democracy. On the occasion of the golden jubilee of Kesavananda Bharti, it is important to clarify the doctrine’s essence, both by shedding light upon the circumstances in which it was developed and the role it has played in securing the Indian democracy from executive overreach. This does not imply that one needs to turn a blind eye to the potential abuses of the basic structure doctrine. These may include an overreach of judicial power and the rejection of legislative opinions on matters that are open to reasonable disagreements. I only call for a critical assessment that takes due appreciation of Indian politics, the lack of entrenched democratic culture, and the crucial moment that the country is going through today.
P.S. For scholars and readers interested in further studying Kesavananda Bharti, the Indian Supreme Court has released all documents related to the case, including the petition, written arguments, submissions, and the 11 opinions of the judges, on its website to mark its 50th year. They can be accessed here: Supreme Court of India: The Basic Structure Judgment.
