Basic Structure Doctrine: Safeguarding the soul of the Constitution

Supreme Court

This history of the Indian judiciary and Supreme Court is marked by several landmark judgments that reinforced the notion of constitutional morality, entrenched and strengthened fundamental rights and redefined the power of the State in relation to its law-making functions.

However, there was one case which resulted in the formulation of a doctrine that completely altered the basis of interpreting the government’s decisions.

It established the Supreme Court's unquestionable supremacy in interpreting any law made by the government and any decision taken by the State and holding it unconstitutional if it does not pass the muster of what is now known as ‘basic structure’.

The case which birthed basic structure was titled ‘Kesavananda Bharati and Ors v State of Kerala’.

Ever since this doctrine was formulated in 1973, several important decisions of the government have been held unconstitutional citing it. The most recent one of consequence was ‘NJAC’ judgment which was held unconstitutional in 2015 by the Supreme Court. The judgment struck down the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment that sought to replace the existing collegium system with a new one.

A sensitive topic

Any critical comment or criticism on basic structure doctrine leads to fierce debate. In August 2023, former Chief Justice of India (CJI) Ranjan Gogoi, a nominated member of the Rajya Sabha made his maiden speech in the Upper House. Gogoi said: “The law may not be to be my liking but that does not make it arbitrary. Does it violate the basic feature of the Constitution? I have to say something about the basic structure. There is a book by Andhyarujina on the Kesavananda Bharati case. Having read the book, my view is that the doctrine of the basic structure of the Constitution has a debatable, very debatable jurisprudential basis.”

Before Gogoi, the Vice President of India Jagdeep Dhankar while speaking at a conference in January 2023 said, "In a democratic society, 'the basic' of any 'basic structure' has to be the supremacy of mandate of people. Thus, the primacy and sovereignty of Parliament and legislature is inviolable.”

A few days later after Dhankar’s comment Chief Justice of India (CJI)  DY Chandrachud termed basic structure doctrine “a north star which guides and gives a certain direction to the interpreters and implementers of the Constitution when the path ahead is convoluted” and sent a clear message regarding the importance of the doctrine.

Genesis of the case 

The case had its genesis in Kerala. In March 1970 Swami Kesavananda Bharati, head of Edneer Mutt at Kerala’s Kasaragod challenged the Kerala government’s attempt under the land reform acts to impose restrictions on the management of the religious property.

According to British jurist and historian Granville Austin, it was a local lawyer who wrote to JB Dadachanji, the famous Supreme Court lawyer, who in turn shared the letter with famous jurist NA Palkhivala who agreed to take the case as he felt that the case could lead to important Supreme Court judgments. Palkhivala was right in his assessment of the importance of the case as it actually led to a judgment that changed the course of the constitutional history of India and created a solid bulwark against any attempt to subvert the Constitution.

While Dadachanji and Palkhivala convinced Swami Kesavananda Bharti to fight the case under Article 29 of the Constitution, concerning the right to manage the religiously-owned property without government interference, grander issues of Parliament’s power to amend the Constitution arose as court proceedings evolved.

Uniqueness of the case

One of the most unique aspects of this case was that it was heard by the largest bench ever formed by the apex court and involved the biggest legal luminaries of the day like NA Palkhivala, HM Seervai, and Niren De. But the most striking point of differentiae that sets this case apart is that thirteen judges delivered eleven separate opinions and what came to be called a ‘statement’.

The judgment overturned its earlier judgment in the Golakh Nath case (delivered in 1967) where it was held that fundamental rights are given a ‘transcendental and immutable’ position, hence Parliament cannot abridge or take away any of these rights. In the Kesavananda Bharti case, the apex court held that Parliament is constitutionally empowered to abridge or take away any of the fundamental rights.

However, while consolidating the position of the Parliament in making laws and amendments, it formulated the doctrine of "basic structure" which accorded the judiciary unlimited power of judicial review. It was a classic case of giving from one hand and taking from another.

With a thin majority of 7:6, the apex court held that Parliament could amend any part of the Constitution so long as it did not alter or amend the basic structure or essential features of the Constitution.

Immediate reaction to basic structure judgement

The reaction to the judgment was vicious as within two days of the judgment, the Indira Gandhi government appointed AN Ray, part of the dissenting minority, as the Chief Justice of India superseding three other judges. Another fallout of the judgment was the passing of the 42nd Amendment Act in 1976 which amended Article 368 of the Constitution in a manner that can nullify the decision of Kesavananda Bharti.

Critical evaluation of the judgment 

TR Andhyarujina was a former Solicitor General of India, a distinguished jurist and an expert in constitutional law. Andhyarujina is known to have remarked in the context of the case that “exercise of such power by the judiciary is not only anti-majoritarian but inconsistent with constitutional democracy”.

Commenting upon Kesavananda Bharati, Justice VR Krishna Iyer wrote, "While infallibility is no attribute of a Constitution, its fundamental character and basic structure cannot be overlooked. Otherwise, the power to amend may include the power to repeal. This is a reductio ad absurdum. By a stroke of judicial creativity, the amendatory provision of Article 368 was justly handcuffed in Kesavananda Bharati”.

Any fair criticism of the Kesavananda Bharati case and the ‘basic structure’ doctrine needs to take one important point into account.  The circumstances under which the decision was taken by the court were extremely adverse. It was a time when the government was hellbent on downsizing the judiciary and scuttling its independence. As various accounts show, the alleged “packing” of the court was done with the sole aim of getting favourable decisions for the government. Despite this, the Supreme Court rose to the occasion and created a solid safeguard through a brave decision.

And, as the Indian Supreme Court and Indian Constitution are set to complete 75 years 75-year-long journey, this case will remain one of the brightest milestones of Indian Constitutional history.