The perennial fight that has been part of countries with democracy and Constitution to wrest control of major share of power of State been largely between Parliament and Judiciary. When it comes to India that is Bharat there are plethora of such cases which almost on daily basis either take an inch or cede an inch to Parliament. Kesavananda Bharati vs State of Kerala takes the cake in this regard.
In this case, Supreme Court by 7–6 verdict ruled that Parliament can not alter the “basic structure” of the Constitution. Though it is called 7–6 majority judgment but with 13 judges bench authoring 11 separate judgments is major cause of confusion. They declared it to be inviolable and something cast in stone which is not amendable by Parliament with the procedure provided in Article 368 for the amendment of the Constitution. The complexity and lack of clarity on many questions it left answered doesn’t stop it from being a celebrated judgement in corridors of legal powers and some elites. The doctrine established in this case came to be popularly referred as “Doctrine of Basic Structure”. The dissent by 6 Judges has been buried deep without much thought and discussion thus this judgement has not received its fair share of scrutiny from the people.
The leader of a Hindu mutt Srimad Jagadguru Sri Sri Sankaracharya Thotakacharya Keshavananda Bharati Sripadangalavaru challenged the attempts of Kerala government to impose the restriction on property management through two land reforms acts. With this his challenge to those acts was also the challenge to 24th, 26th and 29th amendment of Constitution as these amendments gave basis for the land reforms acts.
The question that was attempted to be answered in this case was whether Parliament can amend any part of Constitution following the procedure provided for its amendment or are there certain limitations on power of Parliament to amend Constitution which makes certain “core” of Constitution unamendable?
answer this question most important place to look for is the
Constituent Assembly Debates and there no part of Constitution has been
placed at higher pedestal against the rest making the former essential
part of Constitution. There is no such distinction made between “basic”
and “non-basic” feature of Constitution.
If at all anything can be regarded as more fundamental and basic than the others then it can be seen from the Article giving amending power and process to Parliament which is Article 368. Clause 2 of Article 368 classifies 5 items which envisages the ratification by the Legislature of not less than one half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.
This makes it clear that there is nothing called “basic”(thus no “non-basic”) and whatever part of Constitution deemed more significant than others by Constitution framers is the part which in the process of amendment have to be ratified by more than half of the States before sending to President for his assent. Yes, Constitution framers thought certain parts more important than others thus making it follow more rigorous process for amendment and beyond that there is nothing on this. The idea that nothing in this Constitution will be unamendable was so obvious that there was no discussion at all as to what is amendable and what is not. Further the First Constitutional amendment done by more or less same set of people present in Constituent Assembly did not even see any need to talk about powers to amend and limitations though it made important amendment to Fundamental Rights. What more is needed to get the intention of Constitution framers that there is no part unamendable in the Constitution?
Thus if at all there can be any “Basic Structure” in Constitution then it has to be the parts mentioned in 368(2)(a)-(e). Even in such scenario it has to be noted that it is not to make it unamendable but only to recognize the fundamental importance of these provisions shown by special requirement for its amendment.
Below are the provisions which require ratification from more than half of the States —
(a) Article 54, Article 55, Article 73, Article 162 or Article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article,
These provisions relate to Election of President (Article 54), Manner of election of President (Article 55), Extent of executive power of the Union (Article 73), Extent of Executive power of the State (Article 162), High Courts for Union Territories (Article 241), Chapter IV of Part V, Chapter V of Part VI, Chapter I of Part XI, the Lists in the Seventh Schedule, Representation of the States in Parliament and the amending power of Parliament(Article 368).
The argument that the preamble which is the face of Constitution presenting what it contain within can be used to deduce certain things as Basic Structure of Constitution is not able to answer that why then Constituent Assembly did not mention it explicitly. In any case, since Constitution itself can be amended as per the procedure then how can Preamble, a part of Constitution be unamendable when nothing expressly mentioned about it in Article 368. It is fanciful and wishful to think that inn 2 years 11 months 18 days preparing lengthiest Constitution of the world Constituent Assembly would miss to make a mention of such an important matter and even not consider worthy enough to be debated even.
To say otherwise and hold that there is some “core”,”essential”,”basic” structure in Constitution which can not be amended is to go against the Constituent Assembly which drafted this Constitution.
The term “Basic Structure” was used in the neighboring country in the case of Fazulal Quader Chawdry v. Mohd. Abdul Haque [1963 PLD 486(SC)] by
CJP Alvin Cornelius. Not difficult to see that the country where it
originated itself failed to save the fundamental rights of its own
citizen many times but ironically it is mentioned as something which has
saved and still saving the democracy and fundamental rights in India.
It did not take much time to show what Kesavananda Bharati case secured the Indian citizens as claimed by many when the then PM Indira Gandhi decided to impose the Emergency within two years of this judgement. Indira Gandhi crushed the democracy as best as she could and the Basic Structure could not do anything about it. The 42nd amendment(whatever left of it still) is another remnant showing what Basic Structure meant.
The Indian democracy like any other democracy was saved by its people when people delivered crushing blows to Indira Gandhi in 1977 General Elections. It was the people by their voting choice that brought the Indira Gandhi to knees and shown what democracy means; not the Courts.
That the words “socialist” and “secular” are still part of Preamble surviving the Basic Structure which changed the nature of the Constitution giving it permanent character of one kind goes onto show that Judiciary if something appeals to its morality latches onto it. The worse is the immortalization of these words into the Jurisprudence of India and in our Preamble, courtesy Basic Structure doctrine which makes it seemingly unamendable now. The good question is if it could lock in the Preamble how did it allow the Preamble to be amended giving space to these words in the first place?
1973 Basic Structure doctrine came , in 1976 by 42nd amendment Preamble was amended inter alia to include the “socialist” and “secular” in it and now according to Basic Structure these words can not be removed by amendment. Doesn’t it show certain things can come in as for them doors are open and key here seems to be the morality that appeals to judiciary. Nowadays in vogue with phrase “Constitutional Morality”. The argument that it only mentioned expressly what it stood for thus passes the Basic Structure test is incorrect.
Here is what Dr Ambedkar replied to Prof. KT Shah while rejecting his suggestion to add these very words in Preamble —
“merely a mechanism for the purpose of regulating the work of the various organs of the State. It is not a mechanism where by particular members or particular parties are installed in office. What should be the policy of the State, how the Society should be organised in its social and economic side are matters which must be decided by the people themselves according to time and circumstances.
It cannot be laid down in the Constitution itself, because that is destroying democracy altogether. If you state in the Constitution that the social organisation of the State shall take a particular form, you are…taking away the liberty of the people to decide what should be the social organisation in which they wish to live.”
More and more features to the cast in stone thus unamendable premium list of “basic” has been added thus making them immune from removal. It only reeks of certain ideology and morality imposition on the people of India and its democracy through not so legitimate means.
What Basic Structure was supposed to ensure Parliament does not become has molded the Judiciary into it. It has made the Judiciary supreme in some sense while trying to stop the Parliament from being supreme.
The power of amendment conferred upon Parliament must be coextensive with the power of judicial review conferred upon the judiciary, to check the tyranny of the unelecteds in world’s biggest democracy.
That not being the case shows the blatant disregard and utmost disrespect for electoral democracy. Ironically, the democracy being part of Basic Structure must have been saved by Basic Structure rather than perpetuating the unelecteds’ morality and ideology on all crushing the democracy.
is often seen that Court do more based on what they think Constitution
stands for than what Constitution says thus rendering power of Judicial
Review being misused which does not reflect the wisdom of Constituent
Assembly. What could be the better example of it than the case of
Kesavananda Bharati case itself.
The more damaging thing here is being in democracy there is not much that can be done in such situations when Judiciary decides to interpret things what Constitution doesn’t say. On the other hand say if people are unsatisfied with the amendments in Constitution they can always vote the incumbents out and newly constituted legislature can change it back based on what people’s wishes are. There could be maximum 5 years duration after which people invariably get a chance to show through their voting choices what they want.
Another argument against this is do you want your Constitution to be amended every 5 years? Of course not but that is the extreme possibility and in any case there has been 124 attempts to amend the Constitution and out of those 103 have succeeded in last 70 years of our Republic which shows the rate of more than one amendment a year thus no earth shattering thing will happen if in some extreme situation it were to be amended in 5 years according to wishes of people.
Basic Structure doctrine has established the supremacy not of the Constitution but of the judiciary.
Time has come to reargue the premises and judgement rendered in Kesavananda Bharati case and it is the fervent hope that democracy loving eloquent judges of Honorable Supreme Court will restore the Constitution’s old glory by reverting it to amending procedure intended by Constituent Assembly which itself is fundamentally more important provision.
The basis to reargue the Kesavananda Bharati is — no generation should bind the course of generations to come and laws are for the people not the other way around.
The principles worth preserving and worth fighting for securing the democratic right and right to be what they want of current and future generations. These are inviolable principles of democracy.
PONDER: Which country has the system of judges appointing judges? Where did we get concept of Judicial Independence from? What do they follow to preserve and secure the Judicial Independence? Should in a democracy any part of codified law be cast in stone? How long a system will last if the medium in which it functions is foreign language(not understood by more than 10% of the population it covers) and having its mooring in alien value system? How long it will last if such system is to operate on oldest and only continuing civilization? How long before in this age of information spearheaded by social media, thus removing the gatekeepers out of the equation who used to curate what information people could consume, such system will crumble?