April 24, 2021, will be known for two benchmark events in the legal field. First is, India will be getting its 48th Chief Justice of India, in the form of Justice N.V. Ramana, who takes over reins of the highest court from outgoing Chief Justice S.A. Bobde. And the second is, on this day, 48 years ago, the largest Bench till date (13-Judge Bench) of the Supreme Court of India in Kesavananda Bharati v. State of Kerala,[1] had laid down the basic structure doctrine, whereafter, any amendment made to the Constitution can be struck down by the court on violation of basic structure of the Constitution of India.

“Basic structure is not a part of the fundamental rights nor indeed a provision of the Constitution. The theory of basic structure is woven out of the conspectus of the Constitution and the amending power is subjected to it because it is a constituent power.”[2]

The “basic features”, which were declared to be part of “basic structure”, inter alia, are— (1) Supremacy of the Constitution; (2) sovereignty; (3) republican and democratic form of Government;[3] (3) federalism;[4] (4) secularism;[5] (5) separation of powers;[6] (6) independence of judiciary;[7] and (7) judicial review,[8] etc. The above conspectus is an illustrative list, because “for determining whether a particular feature of the Constitution is part of the basic structure or not, it has to be examined in each individual case keeping in mind the scheme of the Constitution”. [9]

So, a Constitutional Amendment or any Act/Regulation which is inserted into the 9th Schedule of the Constitution[10] after 24-4-1973[11] can be impugned as violative of basic structure of the Constitution. Now, the question that emanates is, can an “ordinary legislation” be impugned as violative of basic structure of the Constitution? This article discusses that, with assistance of judicial dictums.

Ordinary legislation means an Act enacted by either Parliament or the State Legislatures on the matters respectively enumerated under 7th Schedule of the Constitution[12]. Our Constitution’s aim is clear in demarcating the functions of the institutions. As per Article 245(1)[13], Parliament or State Legislatures make the laws, whereas, as per Article 141[14], the Supreme Court declares the law to be either constitutional or unconstitutional.

For declaring an ordinary law as constitutional or unconstitutional, its constitutional validity is generally tested on two grounds,[15]— (1) Legislative competence; (2) violation of fundamental rights or any other constitutional provisions. The other grounds that were considered are— (3) law should not be prohibited by any particular provision of the Constitution,[16] (4) law should follow the procedure laid down in the Constitution;[17] and (5) vagueness in law.[18]

Before applying the above tests, the court starts with a presumption that a law is constitutionally valid.[19]

Coming to assessment of the application of basic structure doctrine to an ordinary legislation, in Kuldip Nayar v. Union of India,[20] Ashoka Kumar Thakur v. Union of India,[21] and Union of India v. Madras Bar Assn.,[22] it was categorically held that “only constitutional amendments can be subjected to the test of the basic features doctrine. Legislative measures are not subject to basic features or basic structure or basic framework”.[23]

Whereas, in Madras Bar Assn. v. Union of India,[24] and Supreme Court Advocates-on-Record Assn. v. Union of India,[25] it was held that “if a challenge is raised to an ordinary legislation based on one of the ‘basic features’ of the Constitution, it would be valid to do so”.[26]

The dictum that even an ordinary legislation can be assailed as violative of “basic structure” of the Constitution is untenable, because, firstly, a constitutional amendment, made by virtue of Article 368[27], is an “amending power”, whereas, ordinary law, made by virtue of Articles 245 to 248[28] on entries in the 7th Schedule, deals with a “legislative power”. Secondly, the “basic structure” theory was evolved in Kesavananda Bharati case,[29] because a frontal attack on a constitutional amendment cannot be made on ground of violation of Part III per se, as the expression “law” under Article 13(3)[30] does not covers a constitutional amendment. The point that the expression “law” under Article 13(3) does not covers amendments under Article 368 was held by 8 Judges (Ray, Jaganmohan Reddy, Palekar, Khanna, Mathew, Beg, Dwivedi, Chandrachud, JJ.) out of 13 Judges in the Kesavananda Bharati case[31] by overruling C. Golak Nath v. State of Punjab[32] on this aspect. Therefore, the Judges in Kesavananda Bharati case[33] weaved the fundamental rights into the basic structure doctrine so that rights of citizenry can be protected against the mighty State, whereas an ordinary legislation can be directly challenged as violative of Part III as it comes under the expression “law”, as defined under Article 13(3). Thirdly, in Indira Nehru Gandhi v. Raj Narain[34] (famously called as “Election case”), about which noted jurist H.M. Seervai in his magnum opus — Constitutional Law of India (4th edn. at para 30.19) — says that “no one can now write on the amending power, without taking into account the effect of Election case[35]”, 3 Judges (Ray, C.J., Mathew, Chandrachud, JJ.) out of 5 Judges gave a detailed reasoning on why basic structure test cannot be used as a yardstick to test ordinary legislation. Chief Justice A.N. Ray (as His Lordships was then) observed that “if the theory of basic structures or basic features will be applied to legislative measures it will denude Parliament and State Legislatures of the power of legislation and deprive them of laying down legislative policies. This will be encroachment on the separation of powers”.[36] Justice K.K. Mathew (as His Lordships was then) gave a more picturesque reasoning. His Lordships observed that “I do not think that an ordinary law can be declared invalid for the reason that it goes against the vague concepts of democracy, justice, political, economic and social, liberty of thought, belief and expression; or equality of status and opportunity, or some invisible radiation from them.”[37] Justice Y.V. Chandrachud (as His Lordships was then) reasoned out by observing that “certain constitutional amendment has to be passed by a special majority and certain such amendments have to be ratified by the legislatures of not less than one-half of the States as provided by Article 368(2). An ordinary legislation can be passed by a simple majority. The two powers, though species of the same genus, operate in different fields and are therefore subject to different limitations”.[38]

In view of the above, it is expected that future Benches of the Supreme Court will follow the law as laid down in Indira Nehru Gandhi v. Raj Narain[39] and eschew the observations made in Madras Bar Assn. v. Union of India,[40] and Supreme Court Advocates-on-Record Assn. v. Union of India,[41] as per incuriam, so that the basic structure doctrine, which was evolved thanks to the painstaking efforts of Nani A. Palkhivala, does not gets too much stretched that it loses its elasticness.

Law student, University College of Law, Osmania University, e-mail: akashbaglekar@gmail.com

[1] (1973) 4 SCC 225 

[2] Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 at para 691

[3] State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501

[4] S.R. Bommai v. Union of India, (1994) 3 SCC 1

[5] S.R. Bommai v. Union of India, (1994) 3 SCC 1

[6] State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571

[7] Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1

[8] L. Chandra Kumar v. Union of India, (1997) 3 SCC 261

[9] Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 at para 116

[10] <http://www.scconline.com/DocumentLink/BT8UF5QH>.

[11] I.R. Coelho v. State of T.N., (2007) 2 SCC 1

[12]  <http://www.scconline.com/DocumentLink/ijM48Wrl>.

[13] <http://www.scconline.com/DocumentLink/2He6YRj3>.

[14] <http://www.scconline.com/DocumentLink/42L90IU1>.

[15] State of A.P. v. McDowell & Co., (1996) 3 SCC 709 at para 43; Public Services Tribunal Bar Assn. v. State of U.P., (2003) 4 SCC 104 at para 26

[16] Chhotabhai Jethabhai Patel and Co. v. Union of India, AIR 1962 SC 1006: 1962 Supp (2) SCR 1  at para 33

[17] Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651 

[18] Shreya Singhal v. Union of India, (2015) 5 SCC 1

[19] Charanjit Lal Chowdhuri v. Union of India, AIR 1951 SC 41: 1950 SCR 869 at para 10. See also Ram Krishna Dalmia v. S.R. Tendolkar, AIR 1958 SC 538: 1959 SCR 279 at para 11 and R.K. Garg v. Union of India, (1981) 4 SCC 675 at para 7

[20] (2006) 7 SCC 1

[21] (2008) 6 SCC 1

[22] (2010) 11 SCC 1

[23] Ibid. at para 99.

[24] (2014) 10 SCC 1. In this case of 5-Judge Bench, Justice J.S. Khehar, who authored the leading judgment, held this view (see at para 109), while Justice Rohinton F. Nariman did not express any opinion on this point.

[25] (2016) 5 SCC 1. It is to be noted that in this case of 5-Judge Bench, only Justice J.S. Khehar held this view (see at para 381), while Justice Madan B. Lokur disagreed with this view (see at para 857). And Justice Kurian Joseph and Justice J. Chelameswar did not express any opinion on this point.

[26] Ibid. at para 381.

[27] <http://www.scconline.com/DocumentLink/0oP2hcsE>.

[28] <http://www.scconline.com/DocumentLink/BQ00wa9M>.

[29] (1973) 4 SCC 225

[30] <http://www.scconline.com/DocumentLink/cXoE51V8>.

[31] (1973) 4 SCC 225

[32] (1967) 2 SCR 762

[33] (1973) 4 SCC 225

[34] 1975 Supp SCC 1

[35] 1975 Supp SCC 1

[36] Ibid. at para 136.

[37] Ibid. at para 346.

[38] Ibid. at para 692.

[39] 1975 Supp SCC 1 

[40] (2014) 10 SCC 1

[41] (2016) 5 SCC 1. Only observations of Justice J.S. Khehar.

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