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Explained | Understanding the ‘basic structure’ of the Constitution and Jagdeep Dhankar’s criticism of it

The story so far: Vice-President and Rajya Sabha Chairman Jagdeep Dhankar’s recent public criticism of the judiciary and remark that courts cannot dilute “parliamentary sovereignty” sparked a debate on the separation of powers, bringing the focus back to the “basic structure” doctrine of the Constitution.

In the backdrop of the ongoing tussle between the executive and the judiciary over the collegium system of appointing judges, the Vice-President once again raked up the Supreme Court verdict which struck down the National Judicial Appointments Commission (NJAC) and the 99th Amendment in 2015.

During his inaugural address at the 83rd All India Presiding Officers Conference, Mr. Dhankar questioned the landmark Kesavananda Bharati case verdict, voicing his disagreement with the top court ruling that Parliament can amend the Constitution but not its basic structure. He said that he does not subscribe to the idea that the judiciary can strike down amendments passed by the legislature on the ground that they violate the ‘basic structure’ of the Constitution.

What is the basic structure doctrine? 

In 1973, a 13-judge Constitution Bench ruled in Kesavananda Bharati v. State of Kerala that Article 368 of the Constitution does not enable Parliament to amend the basic framework of the document. The historic ruling came to be known as the “basic structure” doctrine — a judicial principle that the Constitution has certain basic features that cannot be altered or destroyed by amendments by Parliament. Over the years, various facets of the basic structure doctrine have evolved, forming the basis for judicial review of Constitutional amendments.

How did it evolve?

The Kesavananda Bharati case was the culmination of a conflict between the judiciary and the then-Indira Gandhi-led government. In I.C. Golak Nath v. State of Punjab (1967), the Supreme Court held that Parliament could not curtail fundamental rights guaranteed under the Constitution.

The term ‘basic structure’ was first used in this case, by lawyer M.K Nambyar. Basing his arguments off a principle expounded by German thinker Dieter Conrad, Mr. Nambyar contended that Parliament had no power to amend the fundamental rights under Part III of the Constitution. It was, however, a few years later that the concept was outlined in a Supreme Court ruling.

The then government enacted a series of constitutional amendments following successive rulings against it. The 24th Constitutional (Amendment) Act, 25th Constitutional (Amendment) Act and 29th Constitutional (Amendment) Act gave Parliament uncontrolled power to alter or even abolish any fundamental right.

The three rulings

Two brothers from the Golak Nath family in Punjab approached the Supreme Court, claiming that their constitutional rights had been violated. The court ruled that Parliament had no right to abrogate or abridge fundamental rights through amendment.

The Indira Gandhi-led government nationalised 14 major banks in 1969 and paltry compensation was made payable in bonds that matured after 10 years. This was struck down by the Supreme Court, although it upheld the right of Parliament to nationalise banks and other industries. 

In 1970, the government abolished Privy Purses, a guaranteed payment to erstwhile rulers, included by the Constituent Assembly at the behest of Sardar Patel. This was also struck down by the Supreme Court.

In 1970, Kesavananda Bharti, the head of a math in Kerala, challenged the Kerala Land Reforms Act related to restrictions on the management of religious property. The case was heard by the largest-ever Constitution Bench of 13 judges.

The judgment was a mammoth 703 pages. Drawing upon Mr. Nambyar’s submissions in the Golak Nath case, the Supreme Court held that although Parliament has the power to amend any part of the Constitution, it could not use this power to alter or destroy its “basic structure”.

Judges described the various aspects of the “basic structure” of the Constitution in the judgement.

Per Chief Justice S.M. Sikri, the basic elements of the Constitutional structure were — “supremacy of the Constitution, republican and democratic form of government and sovereignty of the country, the secular and federal character of the Constitution, demarcation of power between the legislature, the executive and the judiciary, the dignity of the individual (secured by the various freedoms and basic rights in Part III and the mandate to build a welfare State contained in Part IV, and unity and integrity of the nation.”

Other judges in the majority view added the democratic character of polity, and the essential features of individual freedoms secured to citizens to the list. 

The verdict also made it clear that judicial review was only part of a “system of checks and balances” to ensure constitutional functionaries do not exceed their limits. “We are unable to see how the power of judicial review makes the judiciary supreme in any sense of the word. This power is of paramount importance in a federal Constitution. Indeed it has been said that the heart and core of a democracy lies in the judicial process,” the Supreme Court observed.

The “basic structure” theory was applied for the first time after its introduction in the 1975 case Indira Gandhi v. Raj Narain. The Allahabad High Court had ruled against Indira Gandhi and convicted her of electoral malpractices in the Lok Sabha election, after a challenge by rival Raj Narain. Emergency was declared and Parliament passed the 39th Amendment prohibiting any challenge to the election of the President, Vice-President, Speaker and Prime Minister, irrespective of electoral malpractice. The five-judge Bench, categorised the independent conduct of elections as “basic structure” and ruled that Parliament could not amend the Constitution if alterations affected basic issues like fundamental rights.

The doctrine was back in focus in 1980 in the Minerva Mills case, which pertained to the 42nd Amendment Act introduced by the Indira Gandhi government. In a majority verdict, the top court upheld the power of judicial review of constitutional amendments.

“Judicial review is a vital principle of our Constitution, and it cannot be abrogated without affecting the basic structure of the Constitution. If by a constitutional amendment, the power of judicial review is taken away and it is provided that the validity of any law made by the legislature shall not be liable to be called in question on any ground, even if it is outside the legislative competence of the legislature or is violative of any fundamental rights, it would be nothing short of subversion of the Constitution, for it would make a mockery of the distribution of legislative powers between the Union and the States and render the fundamental rights meaningless and futile,” the judgment noted. 

Criticism of the doctrine

Almost 50 years after it was propounded, the legitimacy of the term “basic structure” and the theory underpinning its doctrinal creation is still seen as an abstract idea in certain quarters, since it is missing from the text of the Constitution.

Vice-President Jagdeep Dhankar addresses the 83rd All India Presiding Officers Conference in Jaipur on January 11, 2023. Photo: Twitter/@VPSecretariat

Vice-President Jagdeep Dhankar addresses the 83rd All India Presiding Officers Conference in Jaipur on January 11, 2023. Photo: Twitter/@VPSecretariat

Its critics believe that the doctrine gives the judiciary the power to impose itself over a democratically formed government. BJP’s Arun Jaitley termed it the “tyranny of the unelected” in his criticism of the NJAC judgment in 2015. The sentiment was reflected in remarks made by the Vice-President during his inaugural address at the 83rd All India Presiding Officers Conference.

Referring to the 2015 verdict which had invoked the “basic structure” theory, the VP, remarked that the scrapping of the NJAC Act was “a scenario perhaps unparalleled in the democratic history”. Parliamentary sovereignty and autonomy cannot be permitted to be compromised by the executive or judiciary, he said.

“Democracy sustains and blossoms when the legislature, the judiciary and the executive act in tandem and togetherness to fructify constitutional goals and realise aspirations of the people. Judiciary cannot legislate in as much legislature cannot script a judicial verdict.”Jagdeep DhankarVice-President & Rajya Sabha Chairman

“In a democratic society, ‘the basic’ of any ‘basic structure’ has to be the supremacy of mandate of people. Thus the primacy and sovereignty of Parliament and legislature is inviolable,” he said, adding that he does not subscribe to the Kesavananda Bharati case ruling. 

Advocate Suhrith Parthasarathy opines that some of the censure of the theory is a result of the Supreme Court’s occasionally muddled interpretation of the basic structure. “But to reject the doctrine altogether because the judiciary sometimes botches its use is to throw the baby out with the bathwater. For not only is the basic structure canon legally legitimate, in that it is deeply rooted in the Constitution’s text and history, but it also possesses substantial moral value, in that it strengthens democracy by limiting the power of a majoritarian government to undermine the Constitution’s central ideals,” he writes.  

Meanwhile, the Opposition has taken strong exception to the V-P’s comments. Congress leader and senior advocate Vivek Tankha said the theory is a “sacred pledge to save the Constitution from majoritarian rampage”.

Congress leader P Chidambaram wrote on Twitter that the Constitution and not Parliament is supreme, while adding that Mr. Dhankar’s views should “warn every Constitution-loving citizen to be alert to the dangers ahead”. His colleague and Congress communications head reminded the Vice-President that his predecessor M. Venkaiah Naidu stated that none of the three organs of the state can claim to be supreme, as only the Constitution was supreme.The Opposition alleged that the V-P’s comments on the judiciary were part of a “game plan to orchestrate a confrontation” between the judiciary and the government.  


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