The basic structure theory cannot be viewed as an impediment or obstruction to the constituent power of Parliament

Inaugurating the 83rd All India Presiding Officers Conference, Jagdeep Dhankhar, the Chairman, Rajya Sabha (and the Vice President) observed that he did not agree with the restriction imposed by the top Court that Parliament cannot amend the ‘basic structure’ of the Constitution. A confessed ‘solider of judiciary’ and a professionally trained lawyer, Dhankhar made an appeal for “propriety, self-respect and commitment to the Constitution.''

The Constitution, as adopted by the Constituent Assembly, only contained the procedure for amendment to the Constitution. Soon after becoming a republic, many land reform legislations enacted by States were challenged in various High Courts. Apprehending that the legislations might be struck down by the Courts as unconstitutional, the Provisional Parliament, passed the 1st Constitution Amendment in 1951 for abolition of zamindari, inserting the Ninth Schedule in the Constitution vide Article 31A, and made the land reforms legislation immune from judicial review. It was challenged by the zamindars on the ground that it abridged their fundamental right in Shankari Prasad Singh Deo v. Union of India (1951).

The Constitution Bench headed by the first Chief Justice HJ Kania declared Article 31C as valid observing: “To make a law which contravenes the Constitution constitutionally valid is a matter of constitutional amendment, and as such it falls within the exclusive power of Parliament”. The Court held that the word “law” in clause (2) of Article 13 did not include a “law” made by Parliament under Article 368. When Parliament placed several new legislations in the Ninth Schedule vide the 17th Amendment, the matter was again challenged in Sajjan Singh v. State of Rajasthan (1965).

The interpretation in the Shankari Prasad case was reiterated in the Sajjan Singh case, though two of the judges, Hidayatullah and Mudholkar, in their separate but concurring judgments, doubted whether Fundamental Rights limited the power to amend the Constitution.

The Golak Nath case challenged the 17th Amendment which placed forty-three State Acts in the Ninth Schedule and also the 1st and the 4th Amendments for abridging the Fundamental Rights. Arguing for the petitioners, Nani Palkhiwala advocated the theory of “implied limitation” on the amending power of Parliament. The Supreme Court in their landmark judgement in Golak Nath v. the State of Punjab,(1967), led by the Chief Justice Subba Rao, held, by a narrow majority of 6:5, that none of the Fundamental Rights was amendable under the amending power conferred by Article 368.

The court also considered the decisions in the earlier two cases as erroneous and to that extent, it held that the impugned Amendments were not good law. However, the Court introduced “the doctrine of prospective overruling” which saved the 1st, 4th and the 17th Amendments. The Court declared that there was an implied limitation on the amending power of Parliament if there is infringement of Fundamental Rights.

Perturbed, Parliament asserted its power to amend any provision of the Constitution, including the Fundamental Rights. This led to the 24th Amendment which amended Article 368 providing for the power as well as the procedure for amendment. It also provided that when a Constitution Amendment Bill passed by both Houses of Parliament is presented to the President for his assent, he shall give his assent to the Bill. Further, Article 13 was amended by adding clause (4) making it explicit that when the Constitution is amended, such an amendment, even though inconsistent with Article 13, shall be valid.

When a bench of eleven judges of the apex court, with a lone dissent by Justice Ray, struck down the Bank Nationalisation Act in 1970, the 25th Amendment was enacted. It inserted new article 31C, providing that if any law is passed to give effect to the Directive Principles contained in clauses (b) and (c) of article 39, such a law shall not be deemed to be void on the ground that it takes away or abridges any of the rights contained in Articles 14, 19 or 31 and it shall not be questioned on the ground that it does not give effect to those principles. The word “compensation” was also omitted from article 31(2) and replaced by the word “amount”.

It also provided that article 19(1)(f) (since deleted by the 43rd Amendment) shall not apply to any law relating to the acquisition or requisitioning of property for a public purpose. Subsequently, in 1972, to protect the Land Reform Acts of Kerala Legislature, Parliament enacted the 29th Amendment Act, 1972, by adding entries 65 and 66 in the Ninth Schedule, placing The Kerala Land Reforms (Amendment) Act, 1969 and The Kerala Land Reforms (Amendment) Act, 1971 in the Ninth Schedule.

The validity of the 24th, 25th and the 29th Amendments was challenged in Kesavananda Bharati v. State of Kerala (1973). The petition was heard by a 13-Judge Bench. Nine out of the 13 judges overruled Golak Nath case and declared the 24th and the 29th Amendments as valid, but held that Article 368 does not enable Parliament to alter the basic structure of the Constitution. The 25th Amendment was also held valid except the clause which barred judicial review.

It’s clear from these decisions that the doctrine of basic structure, rather than a hurdle, has made the “constitutional ideal of equal justice a living truth”, while reinforcing the independence of the judiciary. The apex court, dutifully accepting the Kesavananda Bharati majority judgment, unanimously reiterated the basic structure theory in Indira Gandhi v. Raj Narain (1975) and declared the 39th Amendment unconstitutional in so far as it placed the election of the President, Vice President and Prime Minister and the Speaker Lok Sabha beyond the jurisdiction of the courts.

Article 329A was later omitted by the 44th Amendment. Article 31C, inserted by 25th Amendment and further amended by 42nd Amendment, was quashed by the apex court in Minerva Mills v. Union of India (1980) being violative of the basic structure.

Waman Rao v. Union of India (1981) and Coelho v. State of Tamil Nadu (2007) have reiterated the basic structure test, which is now an integral part of our constitutional law. Notably, the Supreme Court has not struck down Constitution Amendments advancing social justice or the measures for equal justice even not in the Golak Nath judgment which was prospective. So, the basic structure theory cannot be viewed as an impediment or obstruction to the constituent power of Parliament to amend the Constitution save that an amendment must meet the test of “basic structure” and must not dilute the independence of the judiciary.

The debate for instituting a more transparent and robust mechanism for selection of judges of the higher judiciary will continue to rage till a better and more credible system is adopted, replacing or improving the collegium system duly insulated from political influence or coercion. Such an improvement will only further strengthen the basic structure and enhance judicial independence.

(The author, a Delhi-based advocate, is ex-Additional Secretary, Lok Sabha)