The blog is authored by, Pradhyuman Singh, a final year law student, pursuing his B.A LL.B (Hons.) at Gujarat National Law University, Gandhinagar
Header Picture Credits:- Jagran Rosh
This post is the second of a 2-part series that enquires into the issue of applying the basic structure doctrine to ordinary laws. This post examines the precedent on the point and is a direct continuation of the first post.
The impugned question has been brought before the Supreme Court on multiple occasions.
The first was in the case of Indira Nehru Gandhi vs Raj Narain (AIR 1975 SC 2299), a decision by a Constitution bench comprising of 5 judges. The position that ordinary legislations can be struck down on the basis of basic structure doctrine was rejected by Ray (at para 132), Chandrachud (at para 691) and Mathew, JJ. Justice Mathews separate reasoning for the same deserves to be quoted in full. At paragraph 352 it was held-
“The doctrine of the ‘spirit’ of the Constitution is a slippery slope. The courts are not at liberty to declare an act void, because, in their opinion, it is opposed to the spirit of democracy or republicanism supposed to pervade the Constitution but not expressed in words. When the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the legislature, we cannot declare a limitation under the notion of having discovered some ideal norm: of a free and fair election.”
In this manner, Justice Mathew recognized the plenary nature of the Parliaments power to make ordinary laws and established that this could only be restricted by a specific provision of law.
Another occasion that dealt with the issue was in the case of State of Karnataka vs Union of India (AIR 1978 SC 68). This was a Constitution bench comprising of 7 judges where Justice N.L Untwalia, being a part of the majority, held the following in his separate/concurrent judgment-
“Mr. Sinha also contended that an ordinary law cannot go against the basic scheme or the fundamental backbone of the Centre-State relationship as enshrined in the Constitution. He put his argument in this respect in a very ingenious way because he felt difficulty in placing it in a direct manner by saying that an ordinary law cannot violate the basic structure of the Constitution. In the case of Smt. Indira Nehru Gandhi v. Shri Raj Narain, such an argument expressly rejected by this Court.”
In these terms, Justice Untwalia examines the cases on this point that came before and rejects the contention on the basis of Justice Mathews rationale in Indira Nehru Gandhi vs Raj Narain.
A relatively recent occasion discussing the issue was in the case of Kuldip Nayar vs Union of India((2006) 7 SCC 1). This was another decision by a Constitution bench of 5 judges where the unanimous opinion of all 5 judges was authored by Chief Justice Y.K Sabharwal as he then was. In Paragraph 45, the learned Judge expressly affirmed the position that a limitation on the power to amend cannot be extended to ordinary law-making power.
There are other cases where the consistent view was taken that the doctrine of basic structure cannot be a restriction on the ordinary law-making power of the Parliament. ( Reference may be made here, here and here)
Despite numerous decisions on the point, time and again the Court has also deviated from this position*. The most prominent of these decisions was the case of Madras Bar Association vs Union of India ((2014) 10 SCC 1). In this case, amongst many other issues, the National Tax Tribunal Act, 2005 was challenged, being inconsistent with the basic structure. In this context, Justice Khehar speaking for the majority (bench comprising 5 judges) held in paragraph 65-
“This Court has repeatedly held that an amendment to the provisions of the Constitution would not be sustainable if it violated the “basic structure” of the Constitution, even though the amendment had been carried out by following the procedure contemplated under “Part XI” of the Constitution. This leads to the determination that the “basic structure” is inviolable. In our view, the same would apply to all other legislations (other than amendments to the Constitution) as well, even though the legislation had been enacted by following the prescribed procedure, and was within the domain of the enacting legislature, any infringement to the “basic structure” would be unacceptable.”
Here, the Court acknowledges that ordinary laws are governed by Part XI of the Constitution. However, no explanation has been provided for the precise rationale of applying the test of basic structure to these laws. It is submitted that the Court has failed to appreciate the rationale of the existence of the basic structure doctrine in Article 368. At the cost of repetition, it is submitted that Constitutional Amendments that alter the basic structure are outside the purview of Article 368, and are not inconsistent with the said provision. Ordinary legislation that has the effect of altering the basic structure too would be outside the purview of Article 368 for the same reason. Resultantly, such a law would not be inconsistent with the text of Article 368 in any manner.
The Constitutional power of making an ordinary law is found in Article 245/246. Assuming that there is no inconsistency with any other Constitutional provision, there is no logical or legal reason to strike down the law. It is submitted that the nuance of this reasoning is missed by the Court. No clear rationale has been provided in the judgment and the Court seems to merely make an assertion. In any event, even if the Court wanted to do so it was incorrect to completely bypass and ignore all the Constitution Bench decisions on the point that came before it. One of those decisions comprised of a bench of 7 judges and was binding on the Court. The appropriate course would be to express concern about the correctness of these decisions for referral to a larger bench, which was also not done. For these reasons, it is humbly submitted that the said judgment does not lay down the correct law.
The Fourth Judges Case [Supreme Court Advocates-on-Record-Association vs. Union of India] also discussed this particular issue. Justice Khehar who was part of the majority, separately opined that an objection to a basic structure challenge for a statute is “purely technical”. According to the learned Judge, the basic structure is the cumulative effect of various provisions of the Constitution. Thus, if an ordinary law is inconsistent with one or more of these provisions when read together, it would be struck down as violative of the text of the provisions that are read together. This is simply a wrong understanding of the basic structure doctrine because the basic structure is identified from over-arching principles and concepts that the text of the Constitution stands for. These principles, therefore, exist outside the text of the Constitution despite flowing from them.
These cases set a dangerous precedent (being Constitution Bench decisions) as any legislation which ultimately affects the abstract conceptions of free and fair elections, federalism, democracy, unity and integrity of the country may be challenged. Recently, the Supreme Court struck down provisions of the Tribunal Reforms Ordinance, 2021. This was done by locating principles of rule of law and independence of judiciary within the text of Article 14. (The correctness of such a holding is left to the judgment of the reader). Accordingly, the Court did not engage with the issue of this post. Regardless of the same, one may hope that the Supreme Court clarifies this position in the future.
Views expressed are personal.
The Author would like to thank Eeshan Sonak for his valuable feedback in respect of addressing counter-arguments and academic literature on the issue.