Its need arose because the Constitution failed to specify a suitable institutional hierarchy, delineation of powers, and checks and balances

[by Bhanu Dhamija]

Vice President Jagdeep Dhankar on January 11 questioned the legitimacy of the basic structure doctrine, an unwritten rule that Parliament cannot amend certain features of the Constitution. Dhankar argued that Parliament is supreme, by virtue of being the country’s premier elected body, and its amending powers cannot be curtailed. Chief Justice of India DY Chandrachud on January 22 responded saying that the Constitution is supreme and that the basic structure doctrine, based on judicial precedent, is essential to protect its “soul”.

Both stands are untenable, impractical to adopt and ill-advised. Instead of fighting over the basic structure doctrine, India’s constitutional authorities can serve the nation better by examining the root cause for this controversy – the flawed Constitution.

If Dhankar has his way, Parliament can alter fundamental features of the Constitution such as federalism, the separation of powers and fundamental rights. Article 368 of the Constitution, which specifies the amendment procedure, states “there shall be no limitation whatever on the constituent power of Parliament.” This section, inserted by Prime Minister Indira Gandhi’s 42nd Amendment in 1976, still remains in the Constitution, though it was declared invalid by the Supreme Court in 1980.

If Chandrachud prevails, the Supreme Court, an unelected body, could deny any amendment it finds discomforting. This is precisely what it did in 2014 with the 99th Amendment Act, passed unanimously by Parliament. The Act would have created a National Judicial Appointments Commission, increasing the government’s role in appointing judges, and replaced the current collegium system that allows senior judges to make appointments without public scrutiny.

The basic structure doctrine also implies that one generation of Indians can tie the hands of all future generations. While there is no doubt that the Constitution is supreme and parliament cannot ride roughshod over it, it is also true that the Constitution is a “living” document. As one of America’s founding fathers, Thomas Jefferson, wrote, “Some men look at constitutions with sanctimonious reverence and deem them too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment.”

India’s own founders too felt the same way. Prime Minister Jawaharlal Nehru said the Constitution he helped create was only a “basis for further work”, while Patel categorically declared, “This Constitution is for a period of ten years.”

Further, the basic structure doctrine is also poorly defined. The most commonly accepted basic features are the five enumerated by Justice Sikri in the Supreme Court’s 1973 ruling in the case of Kesavnanada vs state of Kerala: supremacy of the Constitution, republican and democratic government, secularism, federalism, and the separation of powers. In the ruling, the bench held, with a slim majority of 7-6, that Parliament could amend the Constitution but not alter its basic structure.

But there is no consensus. No majority judgement lays out all the basic features. Judges have had a field day designating their personal preferences and describing them variously as “basic features”, “elements”, “structure”, or “character”. Here are some examples of what some judges have considered unalterable about the Constitution: a welfare state; equality of status and opportunity; an egalitarian society; balance between Fundamental Rights and Directive Principles, and socialism.

Even the five basic features enumerated in Kesavananda are problematic because they are ill-defined. “The separation of powers”, for example, does not specify how it is to be achieved. This author has written previously that since India’s parliamentary system fuses executive and legislative powers, an American-type presidential system offering stricter separation will be more true to this basic feature. Similarly, another basic feature, “the federal character of the Constitution”, will be more in tune with an American-type setup of independent state governments. In Justice Sikri’s list of features, “the secular character of the Constitution” is not even structural in nature, because it requires a set of laws.

The need for the basic structure doctrine arose because the Indian Constitution failed to specify a suitable institutional hierarchy, delineation of powers, and checks and balances. Consider these examples: the President is the topmost official, but the Constitution makes them subservient to the prime minister. Powers are divided between the Centre and States, but more than 50 subjects are assigned to the Concurrent List, allowing both to shirk responsibility. Parliament is given legislative oversight, but the government is guaranteed a majority under the anti-defection laws.

The basic structure doctrine itself was first invoked in the 1967 Golak Nath case, due to the Constitution’s failure to be precise about the power of judicial review. The case pertained to the powers of parliament to amend fundamental rights. Today, the basic structure is being used as a shield by the judiciary because the Constitution fails to provide a suitable mechanism for appointing judges.

The basic structure doctrine, or any other vague principle, does not belong in the Constitution. A Constitution’s main task is to be precise in defining the structure and powers of government institutions. It is time that India’s Constitution was adjusted to do the same.

Bhanu Dhamija is the chairman and managing director of the Divya Himachal Media Group and the author of ‘Why India Needs the Presidential System’.

[This article was first published on the website on 2 March 2023.]