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International Journal of Research and Review Vol.7; Issue: 3; March 2020 Website: www.ijrrjournal.com Review Article E-ISSN: 2349-9788; P-ISSN: 2454-2237

Comprehending and Inquisitioning the ‘Doctrine of Basic Structure’ in : Urgency to Define the Doctrine

Satarupa Datta

5th Year Student, B.A.LL.B (Hons.), College Dehradun, Uttaranchal University.

ABSTRACT itself. Further, distinction in the form of three separate branches of the The doctrine of ‘basic structure’ has often Government i.e. , and been labelled as a form of judicial exist. In fact, powers and overreach or . In fact, the functions have also been defined, yet the task of law-making which belongs to the present times have seen the urgency of the legislature has been overtaken by the Judiciary to intervene, as the Guardian of judiciary, in the way of a duty imposed Fundamental Rights to such an extent that it upon itself as both the interpreter as well as has stepped into the task of the law-making. the Guardian of the fundamental rights. One such example is that of the ‘Doctrine of Therefore, vesting upon itself the power to Basic Structure’. define the ‘basic features’ of the Initially, it was introduced to protect Constitution i.e. the work of . the interest of the Constitution itself, the This article will argue why the task of Judiciary acted on the power conferred on it defining the ‘basic features’ of the by the same. The doctrine came into light Constitution should not be left open to the when distinguished German jurist, Professor Apex . Additionally the Dietrich Conrad while delivering a lecture implementation of this doctrine after the on ‘Implied Limitations of the Amending case of Keshvananda, [1] in matters of Power’ [3] posed the question: constitutional amendments. The article will Could a begin with a brief introduction of the abolish Article 21, to the effect that doctrine. Part II will discuss judicial forthwith a person could be deprived of his overreach with reference to the doctrine's life or personal liberty without authorization application. While part III of the article will by law? Could the ruling party, if it sees its conclude with some observations and a majority shrinking, amend Article 368 to the conclusion. effect that the amending power rests with the President acting on the advice of the Key words: doctrine of ‘basic structure’, Prime Minister? Could the amending power judicial overreach, judicial activism be used to abolish the Constitution? His thought was inspired by the I- INTRODUCTION ’s, Eternity Clause [4] The is the which was incorporated in the Basic Law of grundnorm, [2] which lays down provisions the Federal of [5] to necessary for the functioning of the State establish that certain fundamental principles (India). Where to facilitate proper of Germany’s can never be functioning, concepts like Separation of removed, not even by Parliament. [6] Unlike Power etc. have a special place in the Germany, the Doctrine has not yet been

International Journal of Research and Review (ijrrjournal.com) 80 Vol.7; Issue: 3; March 2020 Satarupa Datta. Comprehending and inquisitioning the ‘doctrine of basic structure’ in India: urgency to define the doctrine enshrined inside the text of the Constitution balance won’t simply be enough for the of India. [7] Even though the doctrine is purpose. Though established, the Basic highly regarded around the world to be the features still need protection and therefore contribution of the Indian Supreme Court require to be kept away separately without but in reality, it is its application to the the intervention of any. famous case [8] which has earned it the title of -made law. II THE TUSSLE: LEGISLATURE OR Hence, from Golaknath [9] to NJAC case [10] JUDICIAL ACTIVISM the Indian Chapter of the ‘basic structure (Judicial activism with reference to the doctrine’ has added to its basic features, application of the doctrine) concepts like , [11] balance Judicial Review for the very first between Fundamental Rights [12] and time was introduced by the US Supreme , [13] Free and fair Court in the case of Marbury v. Madison. elections, [14] , [15] Federal [24] And from there the concept got structure, unity and integrity of India, popularity, leading to more and more , Socialism, Social , [16] countries adopting it into their system. Independence of Judiciary, [17] etc. There is per se no problem with the concept Finally, in the recent chain of events, of ‘Judicial Activism’ or ‘Judicial the doctrine evolved further and continued ’, as article 367 of the its journey in the form of two landmark Constitution itself provides power to the judgments i.e. ‘right to privacy’ [18] and the Judiciary to interpret the constitution as a Constitutional validity of Part XIV of the legal instrument [25] declare the same and Finance Act, 2017 [19] make it binding upon all authorities in India. Now focusing back on the title of the But the same has to be done in consonance lecture [20] a very important concept had and conformity with the constitutional been propounded ‘Implied Limitation’. Its dictates and confined to the extent permitted relation with that of the Basic Structure which distinguishes it from ‘Judicial Doctrine is what establishes the argument in overreach’. [26] favor of giving express place to the basic In India, the concept of ‘Judicial features inside the text of the Constitution. Review’ has been classified into three Implied limitation was discussed by aspects: (1) judicial review of legislative the Supreme Court in the case of Shankari action, (2) judicial review of judicial Prasad v. Union of India. [21] Though at that decisions and (3) judicial review of time the Hon’ble Court denied any administrative action. [27] Where article 245 limitation subject to article 368 on the of the Constitution empowers the power of Parliament but in the case of Parliament to make subject to certain Golaknath [22] a different stand was taken restrictions and thus the power to ‘Judicial and the 24th Constitutional amendment Act Review’ can be exercised under article 32 & [23] was passed by the Parliament. Thus article 226 of the Constitution. In other giving rise to the continued struggle of words, the power to review any legislative defining the ‘basic feature’. Additionally, action including constitutional amendments the core concept of article 368 & 13 of the by the Supreme Court has to be done by Constitution can be narrowed down to way of interpretation. [28] Thus, the labeling amendments into constitutional and Constitutional though conferred with unconstitutional, it becomes even more the power to deal with extraordinary important to identify the act done, whether situations for the larger interest of justice amounts to ‘ordinary legislation’ or and prevention of injustice must use it ‘Constitutional amendment’. The challenges sparingly. [29] thus posed in front of the parliament are in a In the words of Justice J S Verma (former way manifold. But the concept of check and ):

International Journal of Research and Review (ijrrjournal.com) 81 Vol.7; Issue: 3; March 2020 Satarupa Datta. Comprehending and inquisitioning the ‘doctrine of basic structure’ in India: urgency to define the doctrine

…the judiciary should only compel guarantee against sexual harassment and performance of duty by the designated abuse, more particularly against sexual authority in case of its inaction or failure, harassment at work places, we lay down the while a takeover by the judiciary of the guidelines and norms specified hereinafter function allocated to another branch is for due observance at all workplaces or inappropriate. Judicial activism is other institutions, until a legislation is appropriate when it is in the domain of enacted for the purpose. This is done in legitimate judicial review. It should neither exercise of the power available under be judicial ‘adhocism’ nor judicial tyranny. Article 32 of the Constitution for The acknowledgment of this enforcement of the fundamental rights and it difference between “judicial activism” and is further emphasized that this would be “judicial overreach” is vital for the smooth treated as the law declared by this Court functioning of a constitutional democracy under Article 141 of the Constitution. with the as its central This is clear from the quoted characteristic and supremacy of the that the Hon’ble Court constitution as the foundation of its edifice. acknowledges the fact that the primary task [30] of lawmaking belongs to the legislature. But Therefore the intention is clear, constructing guidelines to be implemented balance is required, and the answer to instead of directing the appropriate authority ‘Judicial overreach’ has to be judicial to do so falls under ‘Judicial Legislation’. restraint. Although the act of judicial In the matter of Kasturilal v. State of activism is not bad in itself but the Uttar Pradesh, [34] Chief Justice overreach or overstepping and placing Gajendragadkar found the law relating to oneself into the sphere of other, that too government liability ‘not very satisfactory’, without being the proper authority does call but did not make the change by judicial for a review of action on part of the construction instead he suggested legislative Judiciary. Being the Guardian of the intervention to rectify the position of law. Constitution, the expectation remains at Thereby, acknowledging the competence of large as no other organ of the State but the the legislature. Thus, , for instance, Hon’ble court has to put the necessary do use the tool of interpretation and along restriction or restraint upon itself. with this their personal thought process, Interpreter or Lawmaker ideas, experiences, etc. also plays a vital Salmond defined ‘interpretation’ or role to shape any particular law where the ‘construction’ as the process by which gap has been identified by the concerned courts seek to ascertain the meaning of judge. legislature through the medium of Further, the following observation was authoritative forms in which it is expressed. made by the Hon’ble Court in the case of [31] Thereby, suggesting that in case of Divisional Manager, Aravali Golf Club v. conflict, courts need to ascertain the Chander Hass: [35] meaning of the act/ amendment passed by Under our Constitution, the the legislature. Leading to the conclusion Legislature, Executive and Judiciary all that the process of judicial law-making is have their own broad spheres of operation. restricted by its very nature and hence Ordinarily it is not proper for any of these cannot be parallel to the legislative process. three organs of the State to encroach upon [32] the domain of another, otherwise the But, the Supreme Court in Vishaka v. State delicate balance in the Constitution will be of Rajasthan [33] held : upset, and there will be a reaction. Judges Absence of enacted law to provide must know their limits and must not try to for the effective enforcement of the basic run the Government. They must have human right of gender equality and modesty and humility, and not behave like

International Journal of Research and Review (ijrrjournal.com) 82 Vol.7; Issue: 3; March 2020 Satarupa Datta. Comprehending and inquisitioning the ‘doctrine of basic structure’ in India: urgency to define the doctrine

Emperors. There is broad separation of Germany, article 79(3) of the Constitution powers under the Constitution and each states that: organ of the State - the legislature, the Amendments to this Basic Law executive and the judiciary - must have affecting the division of the into respect for the others and must not encroach Länder, their participation on principle in into each other’s domains. the legislative process, or the principles laid The importance of Separation of down in Articles 1 and 20 shall be Power cannot be emphasized any more. For inadmissible. instance, the Judiciary has no sufficient This means that the German means to execute the function of the Constitution which is an example of an administration. As making law and passing ‘explicit limitation’ has set its basic feature orders cannot be equated with running the free from amendment etc. They have administration. The Legislature being identified the sole of their Constitution upon directly involved with the Executive which the Laws have to be interpreted or understands the situation in a much better made. And thus includes human dignity, way and thus deserves to do perform its personal freedom, equality before the law, function, subject to reasonableness. freedom of expression, etc. in articles 1 to Unamendable Provision and the Doctrine 20 and so remains quite similar to that of of Implied Limitation our listed ‘Basic features’ of the Indian Now, dealing with the other aspect Constitution. of the ‘’, a careful The process of amendment is analysis of the constitutional amendment another crucial factor where unamendable process of the US makes it clear that it is provision exists with the help of ‘implied certainly not applicable in the Indian limitation’ or ‘explicit limitation’. context. The existence of the Amendment in India is neither rigid nor [36] is the which makes the flexible but mostly so. Flexibility opens the procedure of passing an amendment by far possibility of changing the basic difficult or impossible. fundamental laws though not so easy but ‘Entrenched Clause’ or ‘Eternity with the passage of time, if the legislature Clause’ exists in different necessarily wishes to do so, it can. But a Countries as well and their presence is the contrary argument to this can be that conscious result of legislation by the existing ‘Law of the Land’ [39] has already legislative body. However, unamendability laid down procedure for its own amendment takes constitutional entrenchment to its and thus no other method present is to be extreme, hence it is often described as seen as legal. [40] In other words, the focus is absolute. [37] For instance, both Canada & on the implied limitation of the amendment the US do not have expressed put by the Constitution on the legislature. unamendability but they practice The doctrine of Separation of Power ‘constructive unamendability’, in other Now moving forward, the theory of words, both the countries do not contain any separation of powers is crucial to be provision as to directly imply discussed to further resonate why the core unamendability. Rather they make the of the issue i.e. defining the basic feature is process though not impossible but valid as well as necessary. The concept of politically guided. [38] Meaning, they Separation of Power was first propounded understand that the fundamentals are to be by the French thinker Montesquieu [41] who protected and kept beyond the amending broadly holds the field in India too. In power of the legislature. chapter XI of his book Montesquieu writes: Apart from these, another classic example When the legislative and executive of the entrenched clause can be that of powers are united in the same person, or in the same body of , there can be

International Journal of Research and Review (ijrrjournal.com) 83 Vol.7; Issue: 3; March 2020 Satarupa Datta. Comprehending and inquisitioning the ‘doctrine of basic structure’ in India: urgency to define the doctrine no liberty; because apprehensions may arise, Old Constitution survives without loss of its lest the same monarch or senate should identity despite the change and continues enact tyrannical laws, to execute them in a even though it has been subjected to tyrannical manner. Again, there is no alteration and the power to amend is an liberty, if the judicial power be not enumerated power to the Constitution and separated from the legislative and executive. hence limitation if any must be found in the Were it joined with the legislative, the life Constitution itself which explains why the and liberty of the subject would be exposed solution to this debate has to be the to arbitrary control; for the judge would be Constitution itself. then the legislator. Were it joined to the executive power, the judge might behave III- THE CONCLUSION with violence and oppression. There would Recently scholars have begun to be an end of everything, were the same man question the very authority of Judiciary, or the same body, whether of the nobles or especially the stand of the Supreme Court, of the people, to exercise those three as being the Protector of the Constitution. powers, that of enacting laws, that of This particular issue of basic feature has executing the public resolutions, and of posed an unsettling situation between the trying the causes of individuals. Judiciary and the Legislature. Even after the In the case of Rai Sahib Ram Jawaya Kapur revolutionary settlement of the Basic v. The State of Punjab, [42] the Constitutional Structure Doctrine, it has not seen any end observed that: but further escalation. This can be Indian Constitution has not indeed understood from another instance when in recognized the doctrine of separation of 1983 Justice Bhagwati introduced public powers in its absolute rigidity but the interest litigation in India and Justice Pathak functions of the different parts or branches in the same judgment warned against the of the Government have been sufficiently “temptation of crossing into territory which differentiated and consequently, it can very properly pertains to the Legislature or to the well be said that our Constitution does not Executive Government” [45] contemplate assumption, by one organ or In fact, analyzing its own arguments, the part of the State, of functions that essentially Hon’ble Court said : belong to another. The justification often given for Again in State of Kerala v. A. Laksmikutti, judicial encroachment into the domain of [43] the Apex Court stated that: the executive or legislature is that the other …special responsibility devolves upon the two organs are not doing their jobs properly. Judges to avoid an over-activist approach Even assuming this is so, the same and to ensure that they do not trespass allegation can then be made against the within the spheres earmarked for the other judiciary too because there are cases two branches of the state. pending in Courts for half-a-century as From all these judgments it is easy pointed out by this Court in Rajindera Singh to infer that the Court itself considers the v. Prem Mai and Ors. Civil Appeal No. chaos that might result if the functioning of 1307/2001 decided on 23 August, 2007 [46] any of the organs of the State is interfered In this sense Judicial Review can be with, by the other. As the Guardian of the seen as providing the final proof, that faith Constitution, it is for the Judiciary to restrict in the Judiciary to restore is simply itself and refrain indulging in the task misplaced, when the question of defining already assigned to the other organ. For, it the ‘Basic structure’ arise. has the power to interpret and direct but not It is indeed ironic that Kesavanada the power to legislate. Bharti [47] which is credited to bring the Finally, in the case of Nagaraj v. Doctrine of Basic Structure to life also Union of India [44] the court held that the contained the caution, which the Apex

International Journal of Research and Review (ijrrjournal.com) 84 Vol.7; Issue: 3; March 2020 Satarupa Datta. Comprehending and inquisitioning the ‘doctrine of basic structure’ in India: urgency to define the doctrine

Court in the same judgment said that there is the judiciary as it is free to interpret by way no implied limitation on the powers of of the ‘implicit or explicit’ clause in relation Parliament to amend the Constitution, but to the . In fact, held that no amendment can do violence to Constitutional amendment when one its basic structure. Which in a way appears appears to break the fabric of the to be hollow since the doctrine hasn’t been Constitution, allows the Judiciary which can defined yet and to add more the Apex Court seize its interpretation power directly, has overstepped the line of separation of explicitly from the Constitution itself [49] power. and act. For instance, the issues brought before the Court in the Privacy judgment [48] REFERENCES has made it clear that no lesson has been 1. Keshvanandan Bharti v. State of Kerala AIR learned from the past confrontation between 1973 SC 1461; v. Raj Narain the duo. The judgment, as a matter of fact, AIR 1977 SC 69; Government of Andhra Pradesh v. P. Laxmi Devi AIR 2008 SC brought the tussle to light which will 1640. continue. For even, if the Judiciary refrains 2. The Constitution of India, Narendra Kumar from interfering in the law-making process, 3. Lecture delivered on 1965 at BHU. it cannot step back from protecting the 4. Art. 79(3) of the German Constitution. essence of the Constitution. On the other 5. In 1949. hand, Legislature won’t step back instead 6. The principle of ‘Democracy’ contained in the result would be the same, molding the Art. 20; the ‘Federal Structure’; and laws to favor their consequence. ‘Principle of Human Dignity’ under Art. 1 The article for most of its part of the German Constitution. Available at: discussed the cases from the point of view https://www.nationalheraldindia.com/opinio of ‘Judicial overreach’ because the question n/lessons-from-germany-for-us (last visited on January 25, 2020). of over-exercise of power is on it. And 7. Basic Law for the Federal Republic of therefore, the part to question the Parliament Germany, art. 1 to 19. did not come to light. But it is for sure that 8. Supra note 2. the risk of Constitutional amenability by the 9. I.C. Golaknath v. State Of Punjab 1967 AIR Legislature cannot be taken for granted. 1643, 1967 SCR (2) 762. Additionally, the article tries to 10. Supreme Court Advocates – on – Record - connect to the logical aspect of saving the Association v. Union of India, AIR 1994 SC very soul of the Constitution. Enlarged 868. debates and , interpretation and 11. L Chandra Kumar v. Union of India, (1997) the time involved all could be given a fresh 3 SCC 261. perspective and focus can be shifted on 12. I.R. Coelho (Dead) v. State of Tamil Nadu, AIR 2007 SC 861. solving the other issues rather than 13. Minerva Mills v. Union of India, AIR 1980 revolving around the same basic question of SC 1789. ‘what is the basic feature of the 14. Kihoto Hollohan v. Zachillhu, AIR 1993 SC Constitution?’ 412, 1992 SCR (1) 686; People’s Union Though contrary arguments may be Civil Liberties v. Union of India, AIR 2003 made that there is no result of defining the SC 2363 basic feature as it will make our constitution 15. Indra Sawhney v. Union of India, AIR 1993 more rigid. On the other hand, defining it SC 477; MANU/SC/0104/1993. will for once and all put the matter of 16. S. R Bommai v. Union of India, 1994 AIR constructing the Law relating to basic 1918, 1994 SCC (3). features to rest. Moreover, being 17. Supra note 11. 18. Justice K.S. Puttaswamy v. Union of India, incorporated in the texts of the Constitution AIR (2019) 1 SCC 1. would allow the maintenance of separation 19. Rojer Mathew v. South Indian Bank Ltd., of power. Plus, no hamper in the process of MANU/SC/1563/2019 (13.11.2019 - SC).

International Journal of Research and Review (ijrrjournal.com) 85 Vol.7; Issue: 3; March 2020 Satarupa Datta. Comprehending and inquisitioning the ‘doctrine of basic structure’ in India: urgency to define the doctrine

20. Supra note 4. 37. Available at : 21. AIR 1951. http://etheses.lse.ac.uk/915/1/Roznai_Uncon 22. Supra note 10. stitutional-constitutional-amendments.pdf 23. 1971. (Last visited on January 30, 2020). 24. 5 U.S (1 Cranch) 137 (1803). 38. SUPREME COURT LAW REVIEW 25. Constitutional Remedies and writs, (1st (2014), 67 S.C.L.R. (2d), Pg no. 182. Ed.), pp. 330-31. DD. Basu. 39. A.V Dicey, the Constitution. Pg nO. 49. 26. Available at : Law of the land 3 rd postulate https://shodhganga.inflibnet.ac.in/bitstream/ 40. Cf. Gettel, Political Science (Indian Ed., 10603/32340/12/13_chapter%207.pdf (last 1967) p. 258. visited on January 31, 2020). 41. The Spirit of Laws' by Montesquieu. 27. Id. 42. AIR 1955 SC 549: (1955) 2 SCR 225. 28. Supra note 12. 43. (1986) 4 SCC 632. 29. Harbans Singh v. State of U.P, AIR 1982 44. (2006) 8 SCC 212 : (2007) 2 SCC 1. SC 849 : (1982) 2 SCC 101. 45. Bandhua Mukti Morcha , AIR 1984 SC 802. 30. Available at : 46. Supra note 36. https://core.ac.uk/download/pdf/112282.pdf 47. Supra note 2. (Last visited on January 31, 2020). 48. Supra note 19. 31. Salmond, , 11th Edition, p. 49. The Constitution of India, Part III. 152. 32. Supra note 26. How to cite this article: Datta S. 33. AIR 1997 SC 3011. Comprehending and inquisitioning the ‘doctrine 34. AIR 1965 SC 1058. of basic structure’ in India: urgency to define 35. 2007 (14) SCALE 1 : (2008) 1 SCC 683. the doctrine. International Journal of Research 36. First ten amendments to the US and Review. 2020; 7(3): 80-86. Constitution.

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International Journal of Research and Review (ijrrjournal.com) 86 Vol.7; Issue: 3; March 2020