Ques- Do you think the Parliament should codify the basic structure doctrine?
Answer with reasons, by anticipating the impact this would have on constitutional
adjudication.
The year 1973 marks the foundation of a constitutional quicksand which was not only
discovered but imported, critiqued and exported to several nations. The landmark time when
Keshavananda Bharti judgment presented the pristine concept of Basic Structure which was
ideally a one stop solution to the conflicts and confusion that enveloped the socio political
climate of that time.
The doctrine of basic structure should not be codified because in its very roots it exhibits
characteristics similar to natural law1. Natural law is an essential element of law itself and is
supposed to be the ideal law2. The ideal part of it comes through application of reason to the
experiences3, which transfigure into law, in our case which is the prominent power play
between judiciary and legislature during that time. The legislature had passed amendment
related to right to property, and the court in Shankari Prasad’s case established Art 13 to not
encompass amendment, which was again overruled in Golaknath’s case introducing
limitations to such amendments following several amendments.
These experiences escalated the urge for natural law that would act as an implied limitation
over the legislative actions4 and govern the administration of justice. Thus, came
Keshavananda Bharti that not only gave a free rein to the legislature to make amendments but
at the same time kept the final call to itself by devolving basic structure. As Roscoe Pound
explains: ‘there are rights in every free government beyond the reach of the state, apparently
beyond the reach even of a constitution, so that there might be a constitutionally adopted but
unconstitutional constitutional amendment’.5 If natural law constitutes a superior and
autonomous set of norms, it is thus above the constitutional amendment power.6
Natural law similar to basic structure doctrine is thus a guiding principle independent of
human enactment, and is more of a superior law against which human law. It is not codified
and assists in healing the deficiencies in legislations and supplementing the positive law
similar to the doctrine. Likewise, it transcends the positive law such that if a written law is in
disharmony to the natural law, it is void to that extent.7
Another concept of natural law is that it is bestowed upon the human beings to protect its
identity and essential interests, such that it is inalienable and imprescriptible to that extent8.
Drawing a parallel to our constitution, the doctrine protects its spirit and essential features,
and being imprescriptible in nature, if these features are grappled with, the constitution would
1
Samanta and Basu (2008, 516); Jayadevan (2010, 268-280).
2
Pound, Roscoe, "Natural Natural Law and Positive Natural Law" (1960). Natural Law Forum. Paper 49.
[Link]
3
Id.
4
Roznai, Yaniv, “Unconstitutional Constitutional Amendments: A study of the nature and limits of
constitutional amendment powers” (2014).
5
Pound (2008, 498-99 fn 92). See also Rice (1999, 115): ‘… although it is the highest enacted law of the nation,
the Constitution is itself a form of human law and is therefore subject to the higher standard of the natural law.
That standard is supra-constitutional. It sets limits to what the legal system, however it is structured, can do even
through constitutional provisions’.
6
Garlicki and Garlicka (2011, 355).
7
The Politics of Jurisprudence by Roger Cotterrell Natural Law in Political Thought by Paul E. Sigmund, and
the Dictionary of the History of Ideas Volume III by Philip P. Weiner.
[Link]
8
Id.
elapse as a whole. In America, historically the superiority of natural law was accepted as an
implied limitation over the legislature and further in the case of Marbury v Madision (1803)
John Marshall entrusted the Supreme Court with the key to the American institution of
judicial review, and needless to say that the basic structure doctrine in India emerging from
Keshavananda Bharti’s case is the loudest expression of judicial review.
The most celebrated critique of natural law is its absolutism given the relativity of human
mores and political systems. It cannot be varied to apply to nature which is fluid and
constantly developing. The basic structure being uncodified overcomes this disability, as it
vests the power with the court to shape it according to the changing times. In the midst of
frequent changes in technology, it is very difficult to come up with a rigid notion of basic
structure, thus it is more practicable to deal with them as and when they arise. The laws
cannot have a constant meaning and is subject to change. For example, Article 21 has been
expanded to include not merely an animal existence but a dignified life, education and other
things in Unni Krishnan v State of U.P9 and several cases that followed. Also, in practice, our
judiciary has been able to cope up with any problems that have arisen so far in relation to the
basic structure.
It has been argued that basic structure is nowhere mentioned in the constitution and the
judiciary thus, has a lot of discretion to command its future. The answer to it would be that
the judges have employed structural interpretation i.e., took a holistic view of the constitution
keeping in mind its underlying spirit and philosophy10. Also, this doctrine was the only
solution to the socio political climate which presented a win-win situation. And, when it
comes to judiciary having such power, it is said that judiciary as a structure can never become
overbearing. They neither have the purse nor sword, hence, it is the weakest among all three,
so there would be no harm done. The legitimacy of such power can be proved with the Indira
Gandhi election case, the doctrine was invoked to save democracy, rule of law and restrain
Indira Gandhi from becoming authoritarian. The SR Bommai case also terminated the
tyrannical streak of the legislature where secularism was included in the basic structure.
Hence, though the authority of judiciary is feared by the critiques, nevertheless in actuality it
is the legislature from whom protection should be sought. The judges have only invoked the
doctrine to preserve the sanctity of the constitution and not to its own benefit, thus shutting
the possibility of any cynical behaviour.
The basic structure, as the examples demonstrate, has been successful in achieving its
objective of acting as a leash on the law makers. By leaving it uncodified, there exists some
sort of ambiguity/ gap on the benchmarks which the law has to conform to. Keeping in
purview the past history and the power they possess, this is necessary them from becoming
all powerful. Also, the original idea of making three separate bodies of judiciary, executive
and legislature was distribution of powers, and the basic structure ensures such arrangement,
such that nobody would act outside its jurisdiction. Former Chief Justice K. Subba Rao in an
article expressed the view: "The existence of a remote judicial control may only act as a
brake against hasty and unreasonable legislative and executive action and as a form of
guarantee to the public against instability. The stability of the Constitution stabilises the
State."11
9
1993 SCR (1) 594.
10
Upendra Baxi, “The Impossibility of Constitutional Justice”, Zoya Hassan [Link]. (eds.), “India’s Living
Constitution”, Permanent Black, New Delhi, 2002
11
(2000) 2 SCC (Jour) 1
Since it is the legislature who drafts the laws, codifying the basic structure would mean
giving the reins to legislature who may ride it the way they please and may even surpass it if
they please, thus ridiculing the logic behind its enactment in the first place. Also, it is such an
imprecise and elastic concept, that it would be difficult to lay all its features in entirety. Even
the judges were not in unanimity as to the components of the basic structure12. The task of
laying it down is also cumbersome and time consuming and the courts are also not in a
position to do so with the huge pendency of cases. There exists no need to codify the Basic
structure since it has a precedential value and in India the weightage given to precedents is no
different to that of statutory law and any situation can still be decided on the basis of previous
holdings. Enacting it in the constitution is doubtful as it would act as a self-limitation where
the judges would be bound to follow what the code would say, which would also bind the
future generations to it13. However, now the courts have the potential to stretch the doctrine
as far as practicable and efficient, and this is bound to be in favour of the people and the
victims in general which can be substantiated by experience. Adding it through an
amendment creates similar problems as an introduction of it by the judiciary: it can be
disputed by other branches of government or law making bodies14.
In Germany, Article 79(3) provides for unamendable principles similar to that of the basic
structure, however, it is codified in nature. Nevertheless, it has does not prohibit amendments
to Art 1 to 20 but the principles laid under it15, which is an indirect way to give courts the
flexibility to interpret and expand its scope to suit the changing power dynamics.16 Thus, it is
argued that it is more sensible to pose faith into our judiciary in the first place to make the
doctrine work in the midst of all sorts of development. Also, there are several countries that
have left their entire constitution uncodified and have still managed to stabilize their
functioning with various statutes and conventions so there can be no harm by leaving a part
of it in India i.e., basic structure uncodified. It has to be understood that the judges have
honoured the spirit of the constitution makers and their works by granting them immortality
for the times to come. They are the best judge to comprehend the intention of the drafters to
come up with the basic features that are eternal in nature, though the meaning of it is subject
to change.
Nikunj Khedia
BBA LLB Sec C
20171415
Word Count- 1485
12
Id.
13
Goerlich, Helmut “CONCEPT OF SPECIAL PROTECTION FOR CERTAIN ELEMENTS AND
PRINCIPLES OF THE CONSTITUTION AGAINST AMENDMENTS AND ARTICLE 79 (3), BASIC LAW
OF GERMANY”
[Link]
14
Id.
15 Conrad, Dieter “Basic Structure of the Constituion and Constitutional Principles”.
16
Supra Note No. 13.