A constitution bench (five-judges) of the Supreme Court of India recently concluded the hearings related to the the abrogation of Article 370 of the Constitution and the bifurcation of the State of Jammu and Kashmir (J&K) into two Union Territories (UTs) (In Re: Article 370 issue). How the Supreme Court finally decides this instant case will have far-reaching constitutional implications. In particular, the basic structure challenge pressed upon by the Petitioners, is likely to determine the future of India’s democratic federal architecture and the structural balance of power between the Union and states. As explained previously elsewhere, the special autonomous status accorded to the erstwhile State of J&K as per the unamended Article 370 can be described as follows. First, the President of India, under Article 370(1), had the power to extend the application of the provisions of the Constitution to the State of J&K subject to the “concurrence” of the democratically elected state government. Second, Article 370(3) empowered the President to declare Article 370 as either entirely inoperative or partially with any “exceptions or modifications” subject to a “recommendation” received from the “Constituent Assembly of the State” (which was dissolved in 1957 after the framing of the Constitution of J&K).
The unconstitutional sleight of hand
Before getting into the substance of the instant case, let us now briefly turn to the steps engineered by the Union in the Re: Article 370 issue. Recall that the State of J&K was under President’s Rule under Article 356 since December 19, 2018, and by the same proclamation, the second proviso to Article 3 was also suspended. In simple terms, this meant that the elected state government was displaced in J&K, and the legislature was dissolved. Consequently, the Governor of the state was designated with the authority to exercise the powers and functions of the state government. Alongside this, the requirement to obtain consent of the government of J&K if there was an alteration in the name or territory of J&K was also suspended.
Subsequently, on August 5, 2019, the President issued the Constitution (Application to Jammu and Kashmir) Order, 2019 (‘C.O. 272’) under Article 370(1) with the “concurrence” of the government of J&K, which inserted sub-clause (4) to Article 367 (informally referred to as the ‘Interpretation Clause’). C.O. 272 re-defined “Constituent Assembly of J&K” referred in 370(3) to mean that of the “Legislative Assembly of the State” and “Government of the said State” as “Governor of J&K”. Subsequently, pursuant to statutory resolutions passed by the Indian Parliament, the President issued a separate declaration under Article 370(3) i.e., C.O. 273, with the “recommendation” of the Parliament that practically made all the clauses of Article 370 as inoperative. Third, the Parliament considered and passed the J&K Reorganization Act, 2019, which bifurcated the State of J&K to the UTs of Ladakh and Jammu and Kashmir. Subsequently, a batch of petitions were filed before the Supreme Court challenging the legislative and executive actions (impugned actions or state actions), among other things, as a violation of the basic structure of the Constitution.
Specifically, the main submissions of the Petitioners can be broadly summarized as follows: First, the “concurrence” obtained from the Governor of J&K by the President of India for issuing C.O. 272 cannot replace the constitutional mandate set out in the second proviso to Article 370(1) – Consent to be given by the popularly elected state government. Second, the use of Article 370(1)(d) to amend Article 370(3) through the insertion of a new provision in Article 367(4) is not constitutionally permissible. Third, Article 370(3) provides for the abrogation of Article 370 only with the “recommendation” of the Constituent Assembly of J&K. Accordingly, C.O. 273 could not have been passed by the President with the “recommendation” of the Indian Parliament acting as proxy for the J&K state legislative assembly. Fourth, whenever President’s Rule is imposed under Article 356, it is only for a temporary period and until such time the constitutional machinery in the state is restored. Therefore, the Petitioners submitted that the impugned actions or decisions taken could not have been of a “permanent character” which had the ultimate effect of “fundamentally and irreversibly”: (a) eviscerating the protected special status of autonomy guaranteed to the people and state of J&K through the bilateral constitutional compact located in Article 370; (b) retrogression of the independent constitutional identity of J&K under the Indian federal system and its dismembering into two separate UTs through the J&K Reorganization Act, 2019 without obtaining the consent of the people of J&K as required under the provisos to Article 3.
Overall, the Petitioners explained that the impugned actions were clear and egregious violations of the foundational principles that undergird India’s democratic polity, of the primacy of the rule of law and supremacy of the Constitution, a participatory democracy with a representative form of republican government, having an asymmetric federal structure with a clear division/balance of powers between the Union and the constituent states. Notably, these principles have, over the years, been judicially recognized by the Supreme Court as inalienable, integral, and interwoven parts of the basic structure of the Constitution through a synoptic reading of its various distinct provisions.
Crucially, the Petitioners’ doctrinal challenge was grounded on the strength of J. Khehar’s majority opinion in Madras Bar Assn. v. Union of India (2014) decided by the Supreme Court, reiterated by him again in a separate opinion in the Fourth Judges case. Declaring that no state action is excluded from the scope of basic structure review, J. Khehar in these two judgments, recognised the essential role of the Indian Constitution in regulating power structures that control governance through, inter alia, the constitutional restraints imposed on law-making power of legislative (and, executive) bodies. To a large extent, J. Khehar’s opinion is also a direct acknowledgment of an important function of the basic structure doctrine – of fortifying core principles of substantive deliberative democracy from majoritarian legislative processes and muscular executive aggrandizement of power.
The Respondents, who were formally led in arguments by the Attorney General but in substance by the Solicitor General, made submissions on the inapplicability of the basic structure doctrine in respect of the impugned actions. Built on top of J. Lokur’s dissent in the Supreme Court Advocates-on-Record Assn. v. Union of India (the Fourth Judges case, 5J) wherein he placed reliance on J. Untwalia’s plurality opinion in State of Karnataka v. Union of India, 1977 (Inquiries case, 7J) and on Indira Nehru Gandhi v. Raj Narain, (5J, 1975), the Respondents contentions had two primary prongs: Firstly, only constitutional amendments were amenable to a basic structure review. Any power exercised under Article 370 was not in the nature of constitutional amendment(s) and, as such, cannot be challenged for destroying the basic structure of the Constitution. Secondly, a constitutional court cannot exercise its powers of judicial review to assess “the justification, efficacy, desirability, and the wisdom” of ordinary decisions taken by a competent, democratically elected legislative body or executive authority.
Basic structure review beyond constitutional amendments
It is now clear from the discussion that there are two competing judicial visions of the relationship between democracy and the basic structure doctrine. This, of course, is a by-product of contradictory judgments rendered over the years by coordinate constitutional benches of equal strength and which is responsible for precipitating much of the existing confusion and ambiguity in Indian constitutional jurisprudence.
The first vision is drawn from the powerful and rich vein of jurisprudence, including the unanimous decision delivered by the 9-judges of the Supreme Court in I.R. Coelho v. State of Tamil Nadu (I.R. Coelho, 2007), subsequently, developed by J. Khehar speaking through two of his judgments, first in the majority on behalf of four other judges and thereafter, in a separate opinion. According to this line of thought, the basic structure review is recognized as an “independent model of judicial review” for constitutional courts to assess if the “constitutional injury” caused by the state action has an impact/effect of “damaging or destroying” the basic structure of the Constitution.
The second line of thought is advanced by J. Lokur and orally accepted by the Chief Justice during the Re: 370 issue hearings. According to this vision, other forms of state action may be challenged for lack of competence or authority or for violating fundamental rights or provisions of the Constitution. However, the basic structure doctrine would ordinarily not be applicable to such other state actions except for when it is a constitutional amendment – and, if at all it were to be applicable, it would “perhaps (be only for) a statute placed in the 9th Schedule” of the Constitution. For context, central and state laws placed in the 9th Schedule of the Indian Constitution prior to April 24, 1973, are protected from challenge on the grounds of constitutionality. Recall here that Article 31B and the 9th Schedule were inserted by the Constitution (First Amendment) Act, 1951.
At this juncture, it is instructive to mention the central weaknesses of J. Lokur’s dissent in the Fourth Judges case as the logic explicated therein forms much of the substratum of the Respondents’ case.
First, he chooses to substantially rely on a passage in J. Untwalia’s plurality opinion in the Inquiries case without providing any adequate reasons for doing so. At the same time, J. Lokur also ignores the lead opinion authored by J. Beg in the very same judgment wherein he formulates an interpretation of the constitution that centralizes the role of basic features to “operate as implied limitations” on the exercise of legislative and executive powers. It must be noted here that J. Beg’s opinion is particularly significant because it is for the first time after Keshavananda Bharati that the Supreme Court articulated the possibility of challenging executive or legislative action for violation of the basic structure of the Constitution.
In addition, J. Lokur also stops short of providing any justification as to why the basic structure challenge that is otherwise considered by him to be not available for ordinary state action will suddenly become available (without any explicit or implied logic) for statutes that are placed in the 9th Schedule of the Constitution.
Second, he also completely ignores I.R. Coelho, wherein nine judges of the Supreme Court had unanimously suggested that the invocation of the basic structure doctrine is appropriate irrespective of the form and shape of the state action involved. A part of these observations is worthy of extracting here in full:
“If Parliament, exercising constituent power cannot enact an amendment destroying the secular character of the State, neither can Parliament, exercising its constituent power, permit the Parliament or the State Legislature to produce the same result by protecting laws, enacted in the exercise of legislative powers, which produce the same result.”
The above decision by virtue of it being a unanimous nine-judge decision of the Supreme Court is etched into the Indian constitutional jurisprudence. Considering this fact, it was wholly erroneous for the Respondents to submit a position contrary to I.R. Coelho, suggesting that: the exercise of constituent powers, i.e., amending powers by the Parliament under Article 368 can be subject to a basic structure review. Consequently, arrive at the specious conclusion that it is impermissible to mount a basic structure challenge on the exercise of legislative powers (which stands on a lower footing vis-à-vis constituent powers) by the Parliament or of similar/executive power by any other organ of the state.
Spheres of the basic structure doctrine: Time for a final judicial settlement
Since the present regime was voted into power in 2014 with a brute parliamentary majority, it has systemically manipulated India’s governance institutions and taken incremental steps for the potential hollowing out of India’s constitutional structure and democratic polity. Examples are plenty and include (other than Re: Article 370 issue) the introduction of electoral bonds, a highly opaque and partisan campaign finance scheme which allows donations to be made to political parties anonymously, and the implanting of a religion-based citizenship regime through the enactment of the Citizenship Amendment Act, 2019 to derogate the secular character of the Indian state.
As has also been rightly contended by the Petitioners who have challenged these respective state actions before the Indian Supreme Court, these actions have had the effect of fundamentally altering the basic structure of the Constitution without formally amending the constitutional text. Bearing in mind the continuing dangerous subversion of the founding principles of India as a liberal constitutional democracy with a federal structure, a final judicial settlement of the question: Whether the basic structure doctrine applies to legislative or executive actions is of utmost urgency.
To sum up: The Indian Supreme Court is faced with a clear choice. Either it allows the basic structure doctrine (or its “North Star” as referred to by the present Chief Justice), to guide constitutional interpretation in respect of all state action. In doing so, affirming the position declared by the majority in Madras Bar Assn, namely, to subject the impugned actions to a basic structure review. This would, in turn also potentially serve as a rare demonstration of the Supreme Court finding its way to being a counter-majoritarian force as originally envisaged under the Indian Constitution. And, as a corollary arm its ‘insurgent citizens’ with additional constitutional tools, language, and vocabulary – for them to stand a fighting chance in the struggle to safeguard the flesh and blood of the Constitution from incremental assaults by the state across sites and terrains of power contestations including inside courtrooms.
Or it accepts J. Lokur’s interpretation expounded by the Respondents, and to which the Chief Justice has also expressed oral agreement during the hearings. In the event, the Supreme Court sustains its growing pusillanimity and finds agreement with this position of law that a basic structure review ought to be confined to only constitutional amendments – then, it must necessarily make a reference to a larger bench (of more than five judges) to evaluate the correctness of J. Khehar’s majority opinion on behalf of four other judges in Madras Bar Assn as this decision which permits a basic structure review for ordinary state action is otherwise fully and completely binding on the Supreme Court.