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
One of the most important cases in the history of the Supreme Court is Kesavananda Bharti vs. State of Kerala, otherwise known as the Fundamental Rights case. Famously, this case legally propounded the Basic Structure Doctrine to judicially review Constitutional Amendments. Whilst the application of the said Doctrine is clear in the context of Constitutional Amendments, this is not so with ordinary laws. This is the first of a 2-part series that will make an analysis of the following issue in a 2-part series. – “Whether the basic structure doctrine can be applied to ordinary legislations as a ground to strike them down?” The first post will make an argument for the inapplicability of the Doctrine on ordinary laws, based on the basis of Constitutional text, philosophical theory and contours of the Doctrine itself. The second post will then enquire into the precedent on the point and discuss the law as it stands today.
The powers of the Parliament to make ordinary laws under Article 245/246 read with the Seventh Schedule, along with its constituent powers under Article 368 are plenary in nature. This means that these powers are unqualified and absolute, and the only limitations to these powers, are those that the constitution prescribes expressly or by necessary implication. A case recognizing this principle may be found here.
In the case of Constitutional Amendments, there are two limitations on the power of the Parliament as commonly understood. These may be found in the text of Article 368 itself-
- The first being the mandatory procedural compliances.
- The second being a substantive limitation in the form of the basic structure doctrine. Any Constitutional amendment which purports to amend those features of the Constitution that comprise its most basic characteristics would be ultra vires the Constitution.
The basis of this doctrine is traced to the landmark case of Kesavananda Bharati vs State of Kerala. This was done in light of constructing the expression “amend” found in Article 368. Grammatically, the word “amend” means ‘to change, alter or vary’. Depending upon the context, “amend” may either mean to ‘slightly modify, or make a small change’ OR, ‘to substantially modify or completely change’. The scope of the former construction is narrow and does not include such changes, that changes that are radical enough to change the very identity of the object in question. Being posed with both these alternatives, the Court adopted the narrow construction. It held that only those alterations which do not affect the essential features and identity of the Constitution would qualify as an act to “amend” the Constitution. As a corollary, substantial changes of identity would not “amend” the Constitution (in the sense of a slight alteration that retains the character of the Constitution) but change the very identity of the Constitution.
The theory of Implied Limitations: A Philosophical Perspective
The decision of the Court to narrowly construe the expression “amend” was on the basis of the theory of implied limitations. This was an argument first presented by M.K Nambiar in the case of I.C Golaknath vs State of Punjab. This was, sourced from the work of jurist Dietrich Conrad that was ultimately reflected in some of his seminal works. This theory argues that there is a limited purpose for which constituent power is conferred on the Parliament.
Constituent power refers to the power of a body that is sovereign in its capacity to decide how it functions. When the Parliament exercises its constituent power, it is not considered to be merely a product of the Constitution. Rather, it acts as a sovereign body that operates above and independently of it. Therefore does not do so as a creature of the Constitution but as a sovereign body that exists above it. As this power enables the Parliament to determine the very features of its polity, philosophically nothing in the Constitution can operate as a restriction. In the context of India, the theory of limitations suggests this power is conferred to administer a healthy parliamentary democracy that is identified with the ideals recognized in the Preamble (Liberty, Equality, Fraternity). The intention of the Constituent Assembly would not have been to give ungirded power to the Parliament to allow the abrogation of the Constitution if it so wished. Professor Conrad’s theory was cited and used to justify the basic structure doctrine in Kesavananda Bharti vs State of Kerala.
Therefore, there is a normative justification to impliedly limit the sovereign power of the Parliament to amend the Constitution. The justification lies in the normative considerations of how the Parliament ought to exercise such power. This normative justification finds legal force by constructing the expression “amend” in Article 368 in light of the theory. In this manner, the theory obtains enforceable legal recognition vide the text of Article 368.
On the basis of this theory, arguments have been made to extend its application to ordinary law-making powers as well. The Kelsenian School of thought argues that the Constitution is a reflection of principles that constitutes the “Basic Norm”. The validity of all laws is ultimately sourced from this Basic Norm, making everything bound to it. Thus, if norms apply are applicable to the constituent power, then considering that ordinary powers are more inferior, these Constitutional norms ought to the latter as well. This argument is addressed on two grounds-
- The theory of implied limitations is a theory that originates from philosophy. It is sourced from German and French jurisprudence which justify it on the basis of normative considerations. These considerations exist independently of any legal framework which only finds their application in the Indian Constitution. Therefore, this theory is not guided by the letter or spirit of the Constitution and exists as a matter of equity and propriety. Contrastingly, Kelsen’s theory suggests that Constitutional norms ought to govern law making. Whilst this is correct, it would not be logical to extend its application to the concept of implied limitations (which is the basis of the basic structure doctrine) which finds its source independent of any Constitutional norm.
- Secondly, the normative theory of implied limitations is relevant only concerningin relation to the cConstituent powers of the Parliament (Article 368) because the language of the provision was ambiguous. The expression “amend” was grammatically open to two equally viable constructions, and the theory of limitations was an aid in choosing one of the alternatives. Therefore, this normative theory gets legal sanction and enforceability by being reflected in the meaning of the expression “amend” as it stands today.
This is not the case for ordinary law-making powers under Article 245, where the language is clear. This provision opens with a subject clause which states- “Subject to the provisions of this Constitution”. The language thus clearly provides for the law-making power, and also clearly provides the limitations to this power – the provisions of the Constitution. The said expression cannot have any meaning other than its plain meaning, and any normative/philosophical theory cannot be allowed to alter or affect the same. On this basis, the only limitation to the ordinary powers is are the express provisions of the Constitution, and nothing else.
Textual Analysis of Basic Structure violations
It is uncontroversial that a Constitutional Amendment cannot dilute or affect the basic structure of the Constitution. The rationale for the same, as discussed in the case of Kesavananda Bharati vs State of Kerala has already been explained. Here, it is important to point out that the basic structure doctrine does not serve as a substantive limitation to the power of Parliament per se. To re-emphasize, the basic structure doctrine was formulated to identify Constitutional Amendments that would have the effect of altering the very identity of the Constitution. Such Amendments would not qualify as an attempt to “amend” the Constitution within the meaning of Article 368. This is because such Amendments seek to effectuate a complete change, which does not “amend” (the expression being narrowly construed) the Constitution, but purport to “change its identity”. This means that such attempts will be outside the purview of Article 368 altogether.
On this basis, if any Constitutional Amendment purports to amend the text of the Constitution in a manner that the basic structure is affected, the power to do so cannot be found in Article 368 or any other provision of the Constitution. Accordingly, the precise reason for such an Amendment to be declared ultra vires the Constitution would not be due to its inconsistency with Article 368 or the basic structure. It would rather be due to the lack of Constitutional power to make such a law. The basic structure doctrine is merely a tool that enables us to judge if a Constitutional Amendment alters the character of the Constitution, and consequentially if it is within the purview of the expression “amend” or not.
The power of Parliament to make ordinary laws is absolute, and is only restricted by limitations imposed by the Constitution itself. It is submitted that in the event any Parliamentary enactment affects any component of the basic structure, it cannot be a ground for its invalidity.
Article 368 does not come in the way of the Parliament’s power to make ordinary legislations. The provision accounts for-
- Firstly, the procedure to “amend” the Constitution. If the text of the Constitution is not sought to be amended in any manner, the procedure under Article 368 becomes irrelevant.
- Secondly, the basic structure doctrine merely contextualizes the word “amend” and excludes from Article 368, the power to make any law that seeks to alter the essential features of the Constitution. Therefore, if any ordinary law made by Parliament is inconsistent with the Independence of the Judiciary (a component of the basic structure) for example, the power to do so cannot be found in Article 368. This would also imply that such a law would also not be inconsistent with Article 368, being outside its purview.
Further, such a law may not be inconsistent with any (other) particular provision of the Constitution, nor any number of provisions read together. Components of the basic structure are the principles and broader legal concepts that underlie various provisions when read together. In some cases, these concepts may be expressed through an individual provision as well (for example, Article 14 reflects equality as a component of basic structure). Ordinary legislations may be inconsistent with these principles that run through various provisions of the Constitution when read together. However, this would not by itself mean that the law is inconsistent with the text of all the provisions when read together (either expressly or impliedly).
For example, federalism as a basic structure component may be identified from Articles of the Constitution providing for Legislative and Administrative powers of the Union and States. Article 246 distributes subject matters over which laws may be made by the Union and States. Exclusive power to make laws on important matters have been given to the States in the Seventh Schedule. Article 162 provides for the executive power of the States in contradistinction to Article 73 providing for the executive power of the Union. The delineation of powers in a written constitution, where a system of dual governance has been established, characterizes a federal setup. Therefore, all these provisions may be read together to conclude that the principle of federalism runs through them. However, the cumulative textual effect of reading all the aforementioned provisions together does not imply that laws inconsistent with the abstract concept of federalism (the underlying principle al that emerges when these provisions are read together) would be ultra vires the Constitution.
There is no Constitutional basis for asserting that a law cannot be inconsistent with the “spirit” or “principles” of the Constitution. The basic structure doctrine being an articulation of these principles, thus cannot be a ground to strike down ordinary laws.
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.