Basic Structure: A Doctrine Emanating from Past Apprehension

‘The identity of our Constitution can be changed’. You would become tempted on hearing this proposition, and you would remember the emergency, but the line continues and says- ‘if We, the People of India, want to change our Identity for which we have to change the identity of our Constitution.’

Now you would become more tempted because you would think that We, the People of India, effectively means We, the representatives of the People of India, and thereby you would feel that our representative would change the identity of our Constitution to subjugate us, and then only someone would tell u that do not worry the basic structure doctrine will invalidate such change.

You would be content. I ask you do not you want to change? Do you think that you are enjoying liberty when you go to court? Do you enjoy your liberty when you become an IAS officer but cannot speak Hindi? The basic structure has indeed made revolution impossible but it has also made intellectual revolution impossible too.     

After hearing what I would say, you may accuse my idea that it is disturbing the identity of our Constitution, but let me say the basic features of our Constitution can be eliminated if they needed to be eliminated for implementing the policy of our elected representatives suiting not only the majority but all. The identity of the Constitution is given by us and therefore, it can be changed by us.

Let us go the extreme way; Bharat can embrace Constitutional Dictatorship indefinitely if it is in the interest of the people of this country. YES, you are right in your impression that it is sounding nefarious but let me answer this question for you who will decide that it is in the interest of the people? I say the referendum by the people which the Constitution has impliedly allowed by the expression ‘We the People of India’, who have given the Democratic and Republic identity to the Constitution.

The unpassed Constitution’s 44th Amendment, 1978 declared that any change ‘in the secular or democratic character, abridging or taking away fundamental rights prejudicing or impeding free and fair elections based on adult suffrage, and compromising the independence of the judiciary, can be made only if they are approved by the people of India by a majority of votes at a referendum in which at least fifty-one percent of the electorate participate.’

You are aware the emergency provisions of our Constitution are contradictory to Democracy but they still exist and are constitutional, why are they constitutional if they are contradictory to Democracy, which is one of the basic features of our Constitution?

The answer to that question will suffice my said idea. The answer is ‘CRISIS’. The crucial word here is ‘CRISIS’, which brings change reshaping the world.

The Basic Structure Doctrine of our Constitution is a legal concept that the Supreme Court of Bharat has to cull out because the Political concepts prevailing during the 1970s and 1980s were detrimental to the lives of the people.

You shall blame the emergency imposed by Mrs. Gandhi because it was misused but not because the emergency is per se nefarious.

The Political concept gives birth to and shapes the Legal concept thereby Constitution. The political concept is philosophies namely Communism, Capitalism and Liberalism, Republic, etc and it is these philosophies that are reflected through the letters of the Constitution, therefore, the change in philosophy would affect the change in the letter of the Constitution thereby changing the legal concept.

I argue that the Basic Structure Doctrine was culled out by the Supreme Court not on the ground that the identity of our Constitution is unalterable but on the ground that the alteration of the Constitution is sought to be made for making the post of Prime Minister unquestionable. Take the example of the 39th Constitutional Amendment, which was introduced to make the election of Mrs. Indira Gandhi unquestionable which election was invalidated by the Court.

Let me show you very briefly how the Basic structure doctrine has evolved.

During British rule, the zamindars and the businessmen flourished and in contrast, the poor landless natives died due to hefty taxes. The struggle of the congress was based on the demand to change the then-status quo as evident from many resolutions namely The Purna Swaraj and Karachi Resolutions.

Therefore, congress made a promise that it would give the landless land with the aid of the Constitution however simultaneously Congress promised liberty and equality for all which the Britishers limited only to them and did not extend to the natives.

With liberty and equality for all and land to landless, the Constituent Assembly sat to frame our Constitution and we got two conflicting Parts namely Part 3 and Part 4 which the Supreme Court had tried to reconcile.

Part 3 enumerates the Fundamental right which once used to declare that the Right to Property is a fundamental Right but the very Art. 31 of Part 3 used to contradict it by declaring that the State can acquire your property supported by DPSP declaring that the concentration of wealth in the hands of few is impermissible. With these contradictions, our Constitution came into force.  

And soon, these contradictions created obstacles for the Nehruvian Government to give the land to the landless because the property right was staring in the face, and the Right to freedom of speech prevented them to whittle down protests, and thus the age of amendments took off.

Nehru wrote to his chief ministers: “It is impossible to hang up urgent social changes because the Constitution comes in the way… We shall have to find a remedy, even though this might involve a change in the Constitution.”

The 1st Amendment, 1951 to the Constitution sought to restrict the then-existing fundamental Right to Property by incorporating the 9th schedule which will make the land reforms legislations immune from judicial review, and also sought to curb the freedom of speech by making freedom of speech subject to public order.

The poor opposition in the Lok Sabha as then there was no Rajya Sabha because no general election had been conducted by that time, made the life of Nehruji difficult to get this amendment passed. However, the Supreme Court upheld the said amendment on the ground that the Parliament has unlimited amending power, and Parliament continued to enjoy such unlimited Amending power from 1951-1965, However, the seed of Basic features was planted by the minority opinion of Justice Hidyatullah and Mudholkar.

The Case of I.C. Golaknath again brought forth the land reforms issue wherein the Supreme Court took a 180-degree turn declaring that Fundamental Rights are unamendable. The problem with land reforms laws was that the congress government did not use to pay reasonable compensation for the acquisition of land which attitude invalidated the nationalization of the Banks, thereafter came the Keshavannada case where the Basic Structure Doctrine was established thereby the Parliament was allowed to amend any provision of the constitution on the condition of not eliminating the basic features.

The interesting facet of these cases is that the court upheld all the land reform laws which were challenged in those cases but did invalidate the provision of the law which snatched away the judicial review of the court. Therefore, the court did not permit the Parliament to take any extreme steps.

Therefore, we shall note that under the circumstances where the government was attempting to limit the fundamental right for a social cause, the court did not invalidate the laws for the social cause, but did introduce the Basic Structure Doctrine on the apprehension that who knows that one day may come when the government may eliminate the fundamental rights and declare the Parliament and Executive unquestionable.

The apprehension of the court which resulted in the formation of the Basic Structure Doctrine became a reality when the election of Mr. Gandhi was declared invalid by the Allahabad High Court and to make it inconsequential, she affected an Amendment overturning the court’s decision and imposed an emergency when she failed to secure an unconditional stay of her election invalidating order.

With the emergency in force, started the supersession and transfer of judges which attempted to employ the government’s men in the judiciary and which again made the Supreme court, which in the first Judges case held the executive enjoys primacy in the appointment of the judges, to hold that CJI enjoys primacy in such appointment on the doctrine of the Basic Structure.

Therefore, you would find that the Basic Structure Doctrine is been invented to save the people from the tyranny of the government but not to uphold the identity of the Constitution. Nowhere, the constitution says that I am unalterable, the theory of Implied Limitations by Prof Conrad emanates from the event where Hitler used the Weimar Constitution to snatch away the rights of the people, and for avoiding such a situation in the future, the people of German in their Constitution named as Basic law incorporated an article 79(3) which prohibited the Parliament to amend the basic features.

Now you have an idea why the basic structure doctrine came to be invented. The Basic Structure Doctrine stands on apprehension.  Now you tell me do not you think that the Basic Structure is a hindrance to the development of our Country’s life when it prevents a policy of public interest?

Let me give you some changes which I think the Basic Structure Doctrine would prohibit:

A declaration that the Hindi Language would be compulsory in all schools. People would argue that it is against the basic feature of quasi-federalism forgetting you need Hindi to communicate with the pulse of Bharat. People may not understand English but they would understand Hindi because of Bollywood.

The velocity of the government’s role is to be placed equally with that of the Judiciary in the appointment of Judges.

Making the Dharma enforceable i.e., the citizen will be punished if he does not sing the national anthem or if citizen refuses to particulate in war. In other words, making the Fundamental Duties Chapter enforceable.

A political party in power cannot be removed by a no-confidence motion of the Lok Sabha, it can only be by referendum of the people. It would be argued that it is against the basic feature namely the representative democracy.

Do not you think that you should have direct say in the law namely UCC?

Do not you think that we are been blockaded by too much democracy? Let me tell you that Democracy has never saved us because it is the rule of the majority; Mrs. Gandhi’s acts were supported by the Majority. The important factor is that we are a Republic, and Republic does not only merely mean that the head of the state is elected, the meaning of the word republic is derived from the Latin term res publica, which means “public thing”, “public matter”, or “public affair”.

Therefore, we should remain a Republic but shall we for all times remain a democracy, cannot we have a limited democracy the way the Military is, which is the most disciplined sector of any country? We are here, let us think about what we want, inflexible identity given by the Basic Structure Doctrine or are we ready change our identity? 

By: Hritam Saha