Roots of Constitution’s basic structure doctrine

KK Paul
Former Governor

THE Constitution’s basic structure doctrine has been integral to any discussion on constitutional issues and the role of the judiciary. It was exactly 50 years ago that these principles were enunciated by the Supreme Court in the Kesavananda Bharti case. Later, these came to be known as the basic structure doctrine. Its roots can be traced to the early 1950s. The seeds were sown even before the first Parliament was constituted in 1952. With the dedication of the Constitution to the nation on November 26, 1949, the Constituent Assembly had accomplished its onerous and historical charter, but even after the inauguration of our Republic on January 26, 1950, it continued to function as a provisional Parliament till the first General Election.

With the introduction of the 9th Schedule in the Constitution, certain legislations were immunised from the reach of the judiciary. It was a constitutional coup of sorts and was bound to be challenged, and it was. The challenger was Shankari Prasad Singh Deo, who was heard in the Supreme Court in 1951 by the Bench led by CJI Hiralal Kania. The plea was dismissed as the provisional Parliament’s competence was upheld along with main provisions of the First Amendment, including the introduction of the 9th Schedule.

Our Constitution had been just a few months old in 1950 when the government faced an embarrassment in the Supreme Court in some cases pertaining to freedom of expression. Separately, several zamindari abolition legislations had been held to be ultra vires of the Constitution by some High Courts. As such an interpretation of the Constitution by the judiciary had not been contemplated, the government decided to go in for an amendment.

Moving the First Amendment Bill on May 10, 1951, then PM Jawaharlal Nehru said: “During the last 15 months of the working of the Constitution, certain difficulties have been brought to light by judicial decisions and pronouncements, especially in regard to the chapter on fundamental rights. These have been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence.”

The proposed amendment was to empower the State to impose reasonable restrictions on the fundamental rights and accelerate land reforms.

With the passage of the First Amendment, Articles 15, 19, 31, 85, 87, 174, 176, 341, 342, 372 and 376 of the Constitution stood amended. Its net import was that some of the fundamental rights were abridged. Also, with the introduction of the 9th Schedule in the Constitution, certain legislations were immunised from the reach of the judiciary.

It was a constitutional coup of sorts and was bound to be challenged, and it was. The challenger was Shankari Prasad Singh Deo, who was heard in the Supreme Court in 1951 by the Bench led by CJI Hiralal Kania. The plea was dismissed as the competence of the provisional Parliament was upheld along with the main provisions of the Amendment, including the introduction of the 9th Schedule.

It was an easy passage, where the supremacy of Parliament on constitutional legislation had been accepted. But, in hindsight, some of the issues which were to come up later in the Sajjan Singh case appeared to have escaped a threadbare scrutiny.

In the Sajjan Singh case, the 17th Amendment was challenged. In 1964, the Supreme Court Bench headed by CJI Gajendragadkar upheld by a majority decision the 17th Amendment, including the supremacy and right of Parliament to amend any part of the Constitution. The minority of Justice Hidayatullah and Justice Mudholkar, however, went on to expressing serious doubts on the judgment in the Shankari Prasad case. It is here that we also find the first reference to ‘basic features’. Hidayatullah had dissected the issues while writing: “A question of paramount importance for the citizens of our country would be to know whether the basic features of the Constitution under which we live and to which we owe allegiance are enduring for all times or at least for the foreseeable future.”

It was obvious that a lot of ground had been covered from Shankari Prasad (1951) to Sajjan Singh (1964) and the earlier complete unanimity had given way. By 1967, the pendulum had completely swung to the other extreme with Golaknath completely constricting Parliament.

Strangely, while for Shankari Prasad and Sajjan Singh, five-Judge Benches had heard the cases, for Golaknath, an 11-Judge Bench was constituted. Maybe, the thinking might have been to give a certain degree of finality to the issue. The judgment, when it came, shook up the two other organs of the State — the executive and Parliament. The landmark 1st, 4th, 7th and 17th constitutional Amendments were annulled, along with constraining the power of Parliament on future amendments.

However, borrowing the concept of prospective overruling from the US Supreme Court, the annulled amendments were validated till the date of the Golaknath judgment.

The impact was not only legal and constitutional but also political. The Constitution is virtually a living and an organic entity, but the Golaknath judgment had frozen it, drawing widespread criticism. The Constituent Assembly had never wanted the Constitution, as a document, to be frozen in time.

Be that as it may, the government, after the General Election of 1971, moved to undo the impact of the Golaknath judgment. The statement of objects and reasons for the 24th Amendment clearly mentioned so. This was followed in quick succession by the 25th and 29th Amendments. It was around this time that the amended petition of Kesavananda Bharati came to the Supreme Court in 1972.

A Bench of 13 Supreme Court judges was constituted to hear this momentous case which went on at a stretch for 68 days to finally come up with a 7-6 decision. The pendulum had swung from one extreme in Shankari Prasad to the other extreme in Golaknath. As such, the choice before the Supreme Court in this case was difficult, but it struck a statesman-like solution. While the 24th Amendment was approved, Part III of the Constitution on fundamental rights was taken out of its purview as these were considered inalienable. There were 11 separate judgments by 13 judges and harmonising them was a complex exercise. As such, a separate note was prepared on the basic structure which was signed by eight judges.

Some of the basic features of the Constitution, mentioned in the judgment to be inalienable, included a secular and federal character, a democratic and republican government, rule of law and independence of the judiciary, besides maintaining harmony and balance between fundamental rights and directive principles.

Half a century has gone by since the enunciation of these principles, which have withstood the test of time and strengthened the foundations of our Constitution, keeping the ship of the State on an even keel.