In Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, it was held that Parliament’s power to amend the Constitution did not extend to altering the basic structure or framework of the Constitution. Thus, a constitutional amendment, which is also an act of Parliament, can be challenged only on the ground that it violates the basic structure. Although the meaning of basic structure was not defined, the 13-judge bench gave sufficient examples as to what basic structure meant.
After April 24, 1973, laws made in exercise of the constituent power of Parliament under Article 368 can be challenged solely on the ground that the amendment violates the basic structure. Before and after April 1973, laws made in exercise of legislative power, or ordinary laws, are liable to challenge on the grounds of violation of Part III or of any other constitutional limitation.
The interesting question is whether ordinary laws can also be challenged for violating the basic structure?
The first case which applied the basic structure doctrine was Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299: 1975 Supp SCC 1. Clause (4) of Article 329A, inserted by the 39th Amendment was struck down as it violated the principle of free and fair elections, which is an essential postulate of democracy, which, in turn, is part of basic structure. However, Justice K.K. Mathew held that the basic structure doctrine did not apply to test the validity of an ordinary law because, according to him, it was too vague and undefined. Chief Justice A.N. Ray also took a similar view and held that the application of an undefined theory of basic structure would denude the powers of a legislature and deprive it of laying down legislative policy. Justice Y.V. Chandrachud, as he then was. also took a similar view on the ground that a constitutional amendment and an ordinary law operated in different fields and were subject to different limitations. However, Justice Beg, dissented and observed that the basic structure test will apply to test the validity of ordinary laws.
Later, in State of Karnataka v. Union of India, AIR 1978 SC 68, Kuldip Nayar v. Union of India (2006) 7 SCC 1, and Anjum Kadari v. Union of India, (2014) SCC OnLine SC 3129, the Supreme Court has taken the view that the constitutional validity of an ordinary law cannot be challenged on the ground that it violates the basic structure. The main reason given in these cases is that principles such as secularism, democracy, federalism, and separation of powers, which are part of the basic structure, are of an undefined nature and, therefore, should not be allowed to be grounds to challenge the validity of an ordinary law. Thus, these cases followed the majority view in the 1975 Indira Gandhi case.
It is submitted that this view is incorrect and illogical. The concepts of secularism or separation of powers need not have a precise statutory definition, but these principles are well-known and can be identified. For example, if an ordinary law violates the principle of separation of powers, it must be struck down as violating the basic structure principle. For example, Article 323B permits creation of tribunals to deal with offences on a number of matters including tax, foreign exchange, elections and essential commodities. Can the Centre or State create tribunals manned by retired bureaucrats to decide criminal cases and award punishments? Can the Centre create a Banks Criminal Tribunal to decide cheque-bouncing cases? Can such a law be upheld on the ground that separation of powers is part of basic structure and, therefore, cannot be a ground to strike down such an obnoxious law?
Similarly, if a law plainly subverts free and fair elections, there is no reason why it cannot be struck down on the ground of basic structure. Can it be argued that the phrase “free and fair elections” is vague and undefined?
In the past, the basic structure doctrine has indeed been applied to ordinary laws. An important example is M. Ismail Faruqui v. Union of India, AIR 1995 SC 605. After the demolition of the Babri Masjid, the Acquisition of Certain Areas at Ayodhya Act, 1993 was passed. The Statement of Objects and Reasons noted the widespread communal violence that followed and the need to maintain communal harmony and the spirit of common brotherhood. Consequently, it was considered necessary by the Central Government to acquire the site, the disputed structure and the adjacent land to set up a complex, that would have a Ram temple, a mosque, a library, a museum and other amenities and facilities. Section 4(3) provided that all suits, appeals or other proceedings in respect of any property which was then vested with the Central Government to abate. In other words, all legal proceedings with regard to the disputed land came to an end. The majority held that the abatement of all pending suits and legal proceedings without providing an alternative dispute resolution mechanism amounted to negation of the rule of law. The law was not struck down because it was ultra vires any fundamental right or other constitutional limitation, but that it violated the principle of rule of law, which is part of the basic structure. The minority view (S.P. Bharucha and A.M. Ahmadi JJ.) also held that section 4(3) was bad. In particular, the minority pointed out that section 4(3) effectively deprived the Sunni Wakf Board and the Muslim community to plead and establish adverse possession and redress their grievances. This would offend the principle of secularism which is part of the basic structure. Thus, a Central law was held to be unconstitutional on the ground that it violated two principles that formed part of basic structure: rule of law and secularism.
Another important example is G.C. Kanungo v. State of Orissa, AIR 1995 SC 1655. The State of Orissa made an amendment to the Arbitration Act, 1940, for which the Presidential assent was obtained. The amended provisions enabled the State to nullify awards that had been passed by the Special Arbitration Tribunals, constituted by the State government itself. It was held that once a dispute was adjudicated by these tribunals, it amounted to exercise of judicial power. The legislative power of the State legislature cannot be used to nullify these awards, as this would amount to the State encroaching upon the judicial power entrusted to these tribunals. This resulted in infringing a basic feature of the Constitution, viz. rule of law. Consequently, relevant portions of the Orissa amendment were held to be unconstitutional. It is submitted that the Orissa amendment also violated another feature of our basic structure: separation of powers.
In Madras Bar Association v. Union of India, (2014) 10 SCC 10, the National Taxation Tribunals Act, 2005 was under challenge. Kehar J. struck down certain sections of the Act, but upheld the creation of this Tribunal, Nariman J., in the concurring view, held that the power to decide substantial questions of law was a judicial power and could not be taken away from the High Courts/Supreme Court. Kehar J., in the course of his judgement, held that the basic structure doctrine can be applied even to ordinary laws. He reiterated this view while striking down the 99th constitutional amendment which introduced the National Judicial Appointments Commissions (NJAC).
The power of judicial review has been held to be an integral part of the basic structure. In State of W.B. v. Committee for Protection of Democratic Rules, (2010) 3 SCC 571, it was held that no Act of Parliament or State legislature can exclude the power of judicial review under Article 32 or 226 – a view taken by a bench of seven -judges in L. Chandrakumar v. Union of India, (1997) 3 SCC 261.
It is submitted that there is no logical reason why the basic structure doctrine cannot be invoked to strike down ordinary laws. The ground that the basic structure doctrine is undefined and vague is untenable. If such a vague doctrine can invalidate a constitutional amendment made under Article 368, why can it not be applied to invalidate an ordinary law? As mentioned above, several essential features of constitutional law such as secularism, separation of power, rule of law, free and fair elections, are all principles that are not mentioned in Part III nor is there any constitutional limitation to enact laws which violate these principles. In Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845, Mudolkar J. pointed out that the lofty ideals in our Preamble, are essential features of our Constitution.
Therefore, it is submitted that it is necessary to refer the issue to a bench of seven judges to resolve the conflicting views. Meanwhile, the better view is that basic structure doctrine can be applied not only to invalidate the constitutional amendments, but ordinary laws as well.
In a challenge to constitutional amendments, violation of basic structure is the only ground available; in a challenge to an ordinary law, this is an additional ground, apart from the traditional grounds of violation of Part III, and of constitutional limitations.
Arvind P Datar is a Senior Advocate.