Has Basic Structure Doctrine served the nation well? What legal stalwarts said

The 2023 Centenary Ram Jethmalani Memorial Lecture Series on Friday saw insights by legal stalwarts and commentators on the basic structure doctrine.

Chief Justice of India (CJI) DY Chandrachud, Attorney General for India R Venkataramani, former CJI Dipak Misra, Senior Advocates Fali Nariman and Shyam Divan and journalist S Gurumurthy spoke on the topic ‘Has Basic Structure served the nation well”.

Here is what they had to say.

The CJI chose not to express his views on the doctrine, stating that he would refrain from voicing his opinions on public platforms and would instead allow his judgments to address the matter.

“I will speak about the doctrine through my judgments and not here,” CJI Chandrachud said.

Senior Advocate Fali S Nariman said that the basic structure doctrine is here to stay.

He said the doctrine is closely tied to a specific Article of the Constitution, namely Article 368, which is the sole Article addressing substantial amendments to the constitution.

He also said that the doctrine of basic sructure has been used very sparingly by the Supreme Court to strike down Constitutional amendments.

“Between 1973 when the decision in Kesavananda (was rendered) and the current year 2023, there have been 22 reported cases in which constitutional amendment have been challenged on the basic structure doctrine. Out of which, in 7 reported cases in 50 years, the challenged provisions have been struck down by the Supreme Court by invoking basic structure doctrine. In 15 reported cases, the challenge on the BS doctrine has been repelled and rejected, that is to say, the validity of the challenged Constitutional Amendment have been upheld by the court. So it is impossible to generalise,” Nariman said.

Nariman also urged to have faith in higher judiciary and not get worried when any judgment/order is delivered.

“Individuals from time to time get worried. Sometimes I am with orders and decisions give by individual judges of the Supreme Court but please never lose faith in the higher judiciary as it is an institution as one if the three organs of good governance,” he said.

He also recounted how the doctrine has stood the test of time including when former CJI AN Ray had constituted a bench to reconsider the Kesavananda judgment but the same was eventually disbanded on the second day.

“This new bench heard arguments on two days and on the morning of third days, November 13, 1975, when the court reassembled again, CJ Ray presiding over the bench suddenly and peremptorily announced ‘This bench stands dissolved’, and all the judges rose and went back to chambers,” he said.

In the year 2007, the doctrine was once again questioned and yet again a bench, this time of 9 judges, unanimously affirmed the doctrine.

Fali further said that the basic structure doctrine has firmly established itself in constitutional adjudication primarily because it was initiated by India’s parliament itself.

Former Chief Justice of India (CJI) Dipak Misra vehemently defended the doctrine.

“The answer is a capital YES, it has served the nation well. It has served the nation and saved and stabilised constitutional democracy,” he said.

Pertinently, in an apparent counter to recent comments by former CJI Ranjan Gogoi in the Rajya Sabha doubting the doctrine on the basis of a book by a former Solicitor General, former CJI Misra said,

“Because of the prolixity of judgments, a senior advocate wrote a book saying that the majority judgment [in Kesavananda Bharati] is not the ratio. I must tell you that the view is totally wrong. The ratio is absolutely clear; Parliament has power to amend the Constitution but not an unlimited one. I do not know why many lawyers still think the ratio is not clear. It is clear as day with regard to nature and character of Article 368.

He added that the origin of the doctrine is flawless and no advocate worth his salt would term it vague.

“There can be no trace of doubt that the basic structure doctrine stabilises Constitutional governance and rule of law. Let it be told today that it is a doctrine that is directed against anarchy. It has basically acted (as a) navigational compass for judges in their Constitutional interpretation and guided their progress. It is not an engima nor in the realm of mysticism … It is the fundamental essence of the Constitution. It remains the most natural constant,” he concluded.

Attorney General R Venkataramani

Attorney General R Venkataramani said that the basic structure doctrine is all about liberty.

He pitched for a National Institute for Criminal Justice Administration in the country adding that if justice does not ensue for the weakest sections then it loses its meaning.

Divan explained that the notion of basic structure started with a German professor Dietrich Conrad when he delivered a lecture at Banaras Hindu University where he propounded a theory that some things in the Constitution are “immutable or are unchangeable”. 

Divan said though there are several parts in the Constitution which can be removed or amended but Part III or fundamental rights “must hold out if we are to preserve our democracy”. 

Divan said the basic structure doctrine is really about protecting the “essential identity of the Constitution”.

He added it has been of “tremendous utility” in India in preserving crucial aspects of the Constitution like the scope of judicial review and the power of court to strike down a legislation, which otherwise falls foul of constitutional provisions. 

“And so and a few other areas also, where the basic structure doctrine has been applied, to preserve liberties to ensure that our democracy remains intact and doesn’t suffer too many inroads in terms of rule of law,” Divan said.

The senior lawyer also said the doctrine has found resonance in many foreign countries like Bangladesh, Belize, Kenya, Uganda, Malaysia and Pakistan.

Divan said that the judgments of Indian courts and the judgments of the overseas courts which have upheld basic structure, use expressions like pillars and support for the doctrine.

Concluding, he said that in addition to the pillars and the supports, the country needs spaces for the citizens to speak through civil society. 

“We cannot possibly afford a situation where there is no space for a comedian, there is no space for a journalist, there is no space for a cartoonist, there is no space for an academic. So the defence of democracy assured at least for a while by this important utilitarian principle of basic structure also requires each one of us, like the very eminent lawyers mentioned in the past, to ensure that the spaces do not shrink any further,” Divan said.

Gurumurthy, the editor of weekly magazine Thuglak, said his view on the subject is a “dissenting view” and called for a relook at the basic structure theory.

He said that from a concrete position of “unamendability” of Part-III, we have gone to an “abstract position of unamendability of any part of the Constitution”. 

On the National Judicial Appointments Commission (NJAC) case, Gurumurthy said NJAC could have been read down saying that two members of the judicial system cannot be overruled.

“The matter would have been solved but the question of reading it down would not have given the judiciary the position that it wants … the independence from the government,” he added.

Gurumurthy said the framers of the original Constitution had kept in mind that the fundamental rights of the people should not be affected whatever be the system of governance. 

However, he said the basic structure theory brings about a situation where the judiciary will “decide the system of governance also”. He said it was not the intention of the original framers of the Constitution.

“It may work for some time, but a very powerful sovereign coming and powerful sovereign can be produced by democracy. It’s not that a powerful sovereign will be produced by any method other than democracy in India. Such a person may take a position again, a confrontation can come between the judiciary and the legislature,” he opined

Republic TV Editor in Chief Anchor Arnab Goswami also spoke at the event saying there should be debates on the doctrine.

Union Minister of State for Law Arjun Ram Meghwal also spoke on the occasion.

The event also saw Bar & Bench bagging the Ram Jethmalani Prize for Legal Journalism.