The Basic Structure Doctrine: An insider’s view

(This is a book review of TR Andhyarujina’s recently released book “The Kesavananda Bharati Case: the Untold Story of Struggle for Supremacy by Supreme Court and Parliament”, published by Universal Law Publishing)

Prof Dr. B Errabi, a fine Constitutional law professor, and an honest and thorough academic if there was ever one, startled us with a confession in the middle of one of our Constitutional Law classes – he had not actually read the Kesavananda Bharati judgment in its entirety. It wasn’t accompanied by gasps of disbeliefs in my class as much as sighs of relief as we knew that now we wouldn’t be expected to read every last word of the 1000 and more pages, two columned, miniscule font-sized monstrosity of a judgment.

It would be hard to beat that confession out of most people who confidently mouth platitudes to the basic structure doctrine these days, but it is a pity that the most important case in the history of modern India is virtually inaccessible to all but the most dogged and patient of researchers. That, however, should not take away from efforts to grapple with the impact and consequences of that judgment (some of which we are still only now understanding) or the circumstances and events that led to it.

The locus classicus on this issue, by far, is Granville Austin’s “Working a Democratic Constitution: The History of the Indian Experience” and the trajectory of events described in the book, and the picture of the judiciary-Indira Gandhi conflict drawn by him continues to dominate our understanding of the case. Barring some hitherto unforeseen revelations, Austin’s narrative continues to hold the field and Andhyarujina’s book adds interesting details to this picture to provide us better perspective on the case.

As set out by Andhyarujina himself, the effort here is to show the extra-ordinary and sometimes, frankly bizarre circumstances under which this case was argued. Whether it was the seemingly trivial, school-boyish “fight” between HM Seervai and Niren De on who gets to open the Respondents’ case or the open sniping between the 13 judges on the Bench during the hearings (as though they were 13 scorpions in a bottle), we get a glimpse of the far-less-than-savoury doings and dealings that went on behind the scenes in this case. Most crucially, some pieces of the jigsaw puzzle fall into place regarding the controversial “View of the Majority” and we get some sense of Chief Justice Sikri’s attempt to gerrymander a majority in this case out of the 11 judgments delivered. For this, Andhyarujina’s book must be necessarily commended.

Such narratives put judgments in their proper perspective as not just markers in the development of constitutional law in the country, but also the fossil record that helps us understand the socio-political climate of the nation. The Kesavananda case was argued with definite political overtones hinting at the larger conflict over the wisdom and effectiveness of Government’s policies of the day. Much as we would like to believe otherwise, the book also lays bare each individual judge’s own political leanings deeply impacting the way the judiciary approached the issue of property rights under the Constitution.

In some respects, this also helps us appreciate why the judiciary is so powerful today. Quite apart from the vacuum in political decision making and an indecisive Executive, it cannot be missed that on the larger questions of political economy, the major political players (with the exception of the Communist parties who’ve become even more fringe political players) are almost ad idem on most issues. The difference between the major political formations on the issues of the day is one of degree and not of any genuine distinction. Dissension on these issues lies at the fringes and not at the core of our political system. Likewise, the utterly divisive issues are no longer national in nature – Telangana for instance. The absence of deeply divisive issues and a fragmented polity means that the judiciary no longer finds itself in a situation where it has to constantly fend off attacks to its own institutional integrity from other institutions. The two collegium decisions are good illustrations of the strong defences the judiciary has put up post-Kesavananda against Executive and Legislative interference, helped in no small part by the a wavering and weak Executive. The manner in which some of the judges who decided the Kesavananda case were appointed (as described in Gadbois’ book) and how this reflected in not just the judgments delivered, but also the sharp exchanges and the prejudices that they carried to the Bench (as illustrated by Andhyarujina), not to mention the subsequent supersessions, all give us some perspective on the whys of the Second Judges and Third Judges cases as well.

Yet, that is only one half of the book.

The other half is a critique of the basic structure doctrine itself. Here the book seems somewhat shallow and its analysis, incomplete. The essential premise is a grudging acceptance of the fact that while the Basic Structure doctrine maybe functionally necessary, it is not conceptually and theoretically sound enough to be capable of proper application – akin to the argument Seervai makes in the third and fourth editions of his book. While this fits in with the fine tradition of Indian scholarship of a sishya paying homage to his guru (Andhyarujina worked as Seervai’s junior in this case) the approach is not sufficiently critical enough and does not get to the academic underpinnings of the basic structure principle itself, for instance, the works of Carl Schmitt and Conrad Dieter.

The underlying premise of the criticism of the Seervai school of thought (which is also espoused by a minority of the judges in the Kesavananda case) is that the power of Parliament to exercise its constituent power is unlimited. This is based on the belief that Parliament reflects the will of the people and the power of the people is unlimited. Carl Schmitt challenges this belief and separates constituent power, i.e., the power to actually create and destroy Constitutions, from the ordinary legislative power of the Parliament. This distinction is essential as without it, the Constitution ceases to have any identity as a document of its own, and merely becomes the instrument of the party or the persons in power at any given moment. The consequence of this, as Schmitt himself puts it, is that a person when taking the oath to defend the Constitution is merely taking an oath to defend the power of amendment that is wielded by a body; a concept that reduces Constitutionalism to a nullity and places absolute power in the hands of an elected body with no fetters. (It is a different matter that Schmitt, perhaps of out of fear or cowardice, made a 180 degree turn on this aspect when the Nazis took over in Germany and went on to become their chief legal theorist and apologist.)

The idea that Parliament has no fetters apart from those expressly placed upon it by the Constitution is now losing traction as a fundamental principle of Indian Constitutional law. Justice Reddy’s judgment in GVK Industries is only the latest of a long line of judgments which first questioned and then slowly but surely undermined the idea of an all-powerful Parliament. Rather, what seemed like utter heresy to the judges of the Kesavananda Bench, i.e., Parliament is a creature of the Constitution and draws its powers (and not just the limitations on its powers alone) solely from the Constitution is now practically dogma. When viewed from this perspective, the basic structure doctrine seems far more obvious and less of a judicial chimera. It is true that its proper scope and extent need to be clarified and outlined, but that exercise rests only at the penumbra of the doctrine itself and not at its very core as Seervai, and by extension, Andhyarujina make it out to be.

Andhyarujina also questions the basic structure doctrine on the basis of its inherent vagueness and incoherence in some of its concepts, as also the disinclination of constitutional courts in Pakistan, Sri Lanka and Malaysia to apply the same in the context of their country. The first objection, I think, is somewhat specious as the Constitution itself is littered with vague phrases (“life”, “liberty”, “equal”, “freedom”, “expression” to take a few examples from Part III alone) but that has not prevented the growth and development of a rich jurisprudence of human rights in this country vesting these words with meaning. The fact remains that it is a fundamental attribute of language that meaning is not absolutely fixed for all time to come and vagueness at the penumbra should not be a reason to discard a concept that in its essence and core, is capable of being articulated.

As far as the “rejection” of the basic structure doctrine goes, in the examples given, perhaps only the Malaysian Supreme Court has categorically denied the existence of the basic structure in its Constitution. The position of the Pakistan Supreme Court is less clear (a sort of Schrodinger Cat like situation where the basic structure doctrine seems to be prevalent and not prevalent at the same time), while the Sri Lankan Supreme Court has rejected it on the basis that the amending power given to the Parliament in Sri Lanka is much wider. South Asian Constitutional courts having been the most active in “cross-constitutional borrowing” of concepts and ideas such as Public Interest Litigation, we may not have heard the last word on this either. The Bangladesh Supreme Court on the other hand, in Anwar Hussain Chowdhary v Bangladesh (1989 BLD (Supp) 1), has expressly approved and applied Kesavananda.

Admittedly, the shallow critique of the basic structure doctrine is not the focus of the work, and does not, in any way, take away from its importance in helping place the Kesavananda case in its proper perspective. At a time when, unlike their predecessors, Seervai and Palkhivala, senior counsel of the day have neither the time nor the inclination (and some would unkindly say, the intelligence) to engage with academia and theory of the law, Andhyarujina’s book is to be welcomed and a must read for any scholars of law interested in understanding the historical and political circumstances in which the Kesavananda case was heard and decided.