The political, social, religious, economic, and political life of a human being is deeply rooted in their evolution as a member of an orderly society. This necessitates framing rules of conduct to regulate human behaviour, and further rules to modify, repeal, or abridge these as situations change over time. This is particularly true for the Constitution of India. Enacted to proclaim India as a Sovereign Democratic Republic, the Constitution seeks to secure for its citizens justice – social, economic, and political; liberty of thought, expression, belief, faith, and worship; equality of status and opportunity; and fraternity, assuring individual dignity and national unity and integrity. Designed comprehensively, it regulates all aspects of life in India.
As a federal state with a unitary bias, India comprises both the Union and its constituent States, each indispensable. A federal state derives its existence and character from its Constitution, and all powers – executive, legislative, or judicial, whether of the Union Government or the individual States – are subordinate to, and controlled by, this Constitution. Under Article 368, the Indian Parliament (comprising the Lok Sabha, Rajya Sabha, and President) is vested with the power to amend this Constitution, reflecting that our Constitution is devolutionary in nature and does not assign states any sovereign powers to amend it.
However, a seismic shift occurred in 1973 with the Supreme Court’s judgment in Kesavananda Bharti v. State of Kerala. Here, the Supreme Court by way of judicial interpretation held implied limitation on Parliament’s power to amend the Constitution. It identified certain essential features, or a ‘basic structure,’ that Parliament cannot abrogate or emasculate. Such a doctrine ensures that Parliament cannot, through amendment, effectively destroy the Constitution it is meant to uphold. Both the Kesavananda Bharti case and its precursor, I.C. Golak Nath v. State of Punjab, seem to reveal the Judiciary’s skepticism towards the wisdom of Parliament. This mistrust later seemed to intensify in response to perceived executive overreach, evident in the disputes around the appointment and transfer of judges, leading eventually to the Judiciary’s assertion of control over its own appointments through the collegium system. Initially hailed as a safeguard of India’s constitutional integrity, the doctrine—designed to prevent amendments that would alter the fundamental identity of the Constitution—has attracted a storm of criticism over the years.
During the debate on the motion of Government of National Capital Territory of Delhi (Amendment) Bill 2023 in Rajya Sabha, Justice Ranjan Gagoi while supporting the Bill remarked: “There is a book by Mr. Andhyarujina Former Solicitor General, on the Kesavananda Bharti Case. Having read the book, my view is that Doctrine of Basic Structure has a very debatable jurisprudential basis.”
At the heart of the criticism lies the doctrine’s ambiguity. It lacks specific criteria for what constitutes the ‘essential features’ of the Constitution. This vagueness, critics argue, has given judges a broad canvas to protect provisions that align with their own beliefs under the noble pretext of preserving the Constitution’s ‘basic structure’. Such judicial decisions often lack robust reasoning, giving an impression of arbitrariness.
The consequences of this are profound for our constitutional democracy. When judges elevate their own interpretations and visions of the Constitution to the status of basic structure, they inadvertently tip the delicate balance of separation of powers. This places significant limitations on the constitution-making capacity vested in the Parliament, arguably altering the very scheme that the framers of the Constitution envisaged.
The Consequences
The Basic Structure Doctrine, conceived with the noble intent of preventing potential abuse of constituent power by Parliament, has paradoxically yielded unintended consequences for the judiciary’s role under the Constitution. Over the years, the judiciary has employed an array of interpretative strategies to expand this doctrine’s ambit, inadvertently eroding checks on its own authority. This expansive assumption of power doesn’t occur in isolation; it invariably comes at the expense of the people, who manifest their constitutional desires through elected parliamentary representatives.
A parallel can be drawn with the U.S., where Chief Justice John Roberts’ dissent in Obergefell v. Hodges (2015) highlighted similar concerns. Roberts argued that the majority’s ruling, which legalised same-sex marriage nationwide, was less a constitutional interpretation than an imposition of their personal viewpoints. “Just who do we think we are?” he famously asked. Roberts emphasised judicial restraint and the Constitution’s silence on the issue of same-sex marriage, arguing that such profound societal changes should emerge from democratic processes, not judicial mandates.
In India, critics of the Basic Structure Doctrine echo this sentiment. They argue that the doctrine, in the absence of clear criteria, allows judges to act as quasi-constituent authority, shaping the Constitution according to their own perspectives rather than objective legal and constitutional standards.
Maintaining Balance
Kesavananda Bharti and I C Golak Nath, both illustrate a critical global tension: the role of the judiciary in a democracy. Should judges have the power to effectively shape constitutions based on their interpretations, or should they strictly adhere to the text, leaving significant changes to democratic processes? This remains a central question in preserving the delicate balance of powers in any democratic nation, especially when it involves the constituent powers of the Parliament to amend the Constitution.
The political climate during the time of key rulings is also a critical factor to be considered. The backdrop of political authoritarianism, initially during the Kesavananda Bharti and I.C. Golak Nath, and subsequent political instability were vividly reflected in significant decisions, notably the Second Judges Case and the Presidential Reference Case (1998) – the Third Judges Case. These cases were aimed at preventing the involvement of the executive in judicial appointments. These cases marked significant expansions of the Basic Structure Doctrine, a trend that later proved too formidable to overcome, even when political stability and strength returned to the Centre. By the time the NJAC (National Judicial Appointments Commission) amendment—intended to replace the collegium system—was introduced, the judiciary’s commitment to its independence, as shaped and solidified by the doctrine, was deeply entrenched. This commitment was emphatically reiterated when the NJAC amendment was struck down. It is important to underscore that the expansive interpretation of the Basic Structure Doctrine in the Second and Third Judges Case enjoys no support in either the text of the Constitution or the debates of the Constituent Assembly. The minority view of Justice Ahmadi in the Second Judges Case stares on the whole concept of collegium system upheld by NJAC Case.
This divergence highlights the judiciary’s proactive role in shaping its own autonomy, arguably at the expense of the Constitution’s original intent and the constituent power of the people through their parliamentary representatives.
So, where are we now? We need a balance. On one side, we have the Basic Structure Doctrine that protects our Constitution. On the other, we have judges sometimes using it too freely, which isn’t right. We should do two things: First, make sure the Parliament keeps its power to speak for the people. Second, put forward the well calibrated plea during parliamentary debates or otherwise, to appeal to the judges to be very careful before saying something is a “basic structure.” Time is ripe to initiate a national debate to awaken ‘we the people’ on such issues. They shouldn’t use it just because they can. Our democracy, with its rich history and many voices, deserves clear rules that help us grow without forgetting our core values. We shouldn’t let these rules run wild but guide them steadily towards a better future for all.
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