We, the people of India, today begin celebrating the golden jubilee of Kesavananda Bharati (KB) prescribing the doctrine of basic structure (BS). I described KB, in 1974, as the Constitution of the future. That prophecy has come true as we have witnessed further inaugural discourses on the limits or thresholds of power. A highly controversial pluralist judicial creation, the basic structure doctrine has been accepted now by legislatures, executive, and people of India. India’s very own astonishing judicial invention, now is spread across the Global South as a thriving aspect of constitutional judicial review (CJR).
The people repudiated unlimited parliamentary sovereignty in the making of the Constitution and the Supreme Court has ceaselessly developed the supreme power of each organ of the State acting within its own jurisdiction. Golaknath (1967) began setting limits to political extravaganza — the ousting of CJR by subjecting Article 368’s amending power to the discipline of fundamental rights. But basic structure started a new interpretive enterprise by recognising the basic identity of the Constitution, which may not be destroyed by any amendment. The basic structure discredits the repeal of the Constitution; Article 368 authorises a constitutional amendment, not constitutional desecration or dismemberment.
True, KB was driven by a wafer-thin majority. But it has been accepted ever since, notably by the fact that dissentient KB justices in 1976, who in the teeth of Emergency, invalidated the 39th Amendment. KB emerged not as a constitutional catastrophe but as an opportunity for wise exercise of co-constituent power by the summit court. It has articulated vast plenary powers of the executive and legislature and repudiated the argument of “fear” by holding that the possibility of abuse of power is no ground for its non-conferment. Only a minuscule of amendments and actions have been declared invalid, whereas it has almost become a litigation habit to question, on basic structure grounds, almost all exercises of legislative and executive power. Future history will record as wise the wielding of CJR process and power.
Yet the argument that parliamentary sovereignty is unbounded and persists even now! In the NJAC case (2015), everyone accepted that the Bill was passed by Parliament and endorsed by 20 legislative assemblies. But the juridical question before the Court was not about the calculus of political expediency — creation and mobilisation of public opinion directed against the very idea of BS — but a reasoned elaboration of juridical principles. The decision makes it compellingly clear that the power may be exercised only “within the parameters of the law, nothing more and nothing less” and the validity of amendments “cannot be tested on opinions, however strong …or …vividly expressed”.
Implicit is the theory of “the last word” resting with the Supreme Court of India, which is now duty-bound to identify the “constitutional scheme”. The basic structure doctrine is propelled by the judicial self-perception of its “vulnerability”. Despite being a “formidable protector of individual liberty”, the SC remains “a fragile bastion indeed” needing “protection” as “a very vulnerable” institution. This apprehension of the highest power as the very source and seat of vulnerability is crafted endlessly, from Kesavananda Bharati (1973) to Janhit Abhiyan (2023).
Judicial independence is important as the “essence” of rule of law, which embeds both “decisional autonomy” and “institutional autonomy” (“freedom from the pressure from the State”). Rule of law means that the “parameters of decision making and discretion” remain always circumscribed by the Constitution and demands respect for “constitutional conventions”. As demonstrated in the Second Judges Case, a convention according primacy to the CJI in matters of judicial appointments has existed at least since the Government of India Act, 1935, and “constitutional conventions and practices” mark the intersection of the unwritten Constitution with the written text. A two-fold “limited primacy” exists; while the concurrence of the CJI (now the collegium) is essential for any elevation, the President as the appointing authority may consult other lawyers and justices. Any breakdown of this constitutional togetherness marks a structural crisis of legality and legitimacy.
Somewhat inspired by Roland Barthes’ famous essay on ‘Striptease’, I have framed the saga of the BS as a dialectic between the basic structure and the essential features, a constitutional striptease — like the artist displaying extreme reluctance to shed the last piece of garment, the CJR and its concomitant affirm the independence of judiciary (and the legal profession). This basic reticence empowers the articulation of the essential features.
What they mean and whether their violation amounts to a denial of basic structure redress or remedies, remain affairs of contingent contexts and somewhat meandering interpretation. For example, the paradigm shift in Nagaraj (2006) urges us to go “beyond the words of particular provisions” to find “systematic principles underlying and connecting the provisions of the Constitution” that endow “coherence” to it and makes “it an organic whole”. These principles are parts of “constitutional law” even if not “expressly stated in the form of rules” (like the principles of proportionality and progressive interpretation). And basic structure may only be discovered by such overarching principles that enable us to distinguish “essential from less essential features of the Constitution”. But is the basic structure “the sum total of the basic features of the Constitution “and are “essential” features different from the “basic” ones, as Justice Chelameswar says? How permissible is any obliteration of the distinction between “structure” and “features”?
Justice Madan Lokur is most explicit: The idea of a “committed judiciary”, the other of “independent judiciary”, is simply “unimaginable”. While the “possibility of a completely neutral adjudication” may be distant, a “committed” judiciary is scarcely a constitutional alternative. Does the Constitution permit a despotic executive which may trample upon “everyday life decisions”, the “statutory rights”, and “the fundamental rights of people? Similarly, Justice Adarsh Kumar Goyal recalls Justice Pandian’s earlier observation that any absolute say in judicial appointments by the executive may damage independence of judiciary in “controversies with political flavour …”. In other words, without the basic structure, we end up with constitutions without constitutionalism.
The writer is professor of law, University of Warwick,and former vice chancellor of Universities of South Gujarat and Delhi
