The Doctrine of Basic Structure

Sudhir Krishnaswamy taught me at National Law School of India University, Bangalore in 2006. This book, first published in 2009, grew out of his Doctor of Philosophy in Law dissertation at Oxford University. Extensively researched. Magnificently written. Excerpt, follows.

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The Basic Structure Doctrine evolved in the context of challenges to the constitutionality of land reform legislation. In Kesavananda the Supreme Court used the Basic Structure Doctrine for the first time to subject constitutional amendments to judicial review. Eleven opinions were delivered making the task of identifying the majority holding on any question of law an arduous exercise. With the passage of time, the legal debate over the existence of a majority holding or ratio has ebbed away.

The lead dissenting Judgment in Kesavananda was by Ray. He was of the view that the Constitution used “the word ‘amendment’ in an unambiguous and clear manner” to “mean any kind of change”. Ray concluded that amending power was “unlimited so long as the result is an organic instrument which provides for the making, interpretation, and implementation of law”. His dissent remarkably concedes that the scope of amending power does not extend to the abrogation of the Constitution itself.

Doctrine of Basic Structure was invoked as binding precedent for the first time in Indira Gandhi v. Raj Narain, AIR 1975 SC 2299. Ray took any attempt at using the Basic Structure Doctrine to review legislation to be an exercise in “rewriting the Constitution and robbing the legislature of acting within the framework of the Constitution”.

The Court’s persistence with the Basic Structure Doctrine in Indira Gandhi and Minerva Mills v. Union of India, AIR 1980 SC 1789 in dramatically different political circumstances convinced many a sceptic that the Basic Structure Doctrine was worthy of respect. Baxi acerbically cast Chandrachud’s transition, from his dissenting opinion in Kesavananda to his majority opinion affirming the Basic Structure Doctrine in Minerva Mills and Waman Rao v. Union of India, AIR 1981 SC 271 as the ‘pilgrim’s progress’. This characterization was particularly harsh as several leading constitutional commentators including Seervai, Sathe, and to a lesser extent Baxi himself, travelled through a similar change of convictions.

The open-ended nature of the Basic Structure Doctrine is beginning to lead to an irrational and confusing situation. I think there is near unanimity that there are at least five features that can be regarded as essential and basic. This first is secularism; second, democracy; third, rule of law; fourth federalism; and fifth is an independent judiciary with the power of judicial review. Arguably socialism and equality merit a mention as two other features which have played a significant, though not consistent, role.

The Basis Structure Doctrine has, since its inception in Kesavananda in 1973, often been criticized as being illegitimate. The Basic Structure Doctrine is morally legitimate in the context of its evolution and practice in Indian constitutional adjudication. Clearly the Basic Structure Doctrine does not enjoy unanimous endorsement among Indian political and legal elites.SK.JPG