KESAVANANDA BHARATI IS DEAD, LONG LIVE KESAVANANDA BHARATI [BASIC STRUCTURE THEORY]

Basic Structure Theory, Independence of Judiciary and the Threat Within  

Anurag deep

Professor, 

The Indian law Institute

New Delhi

1. Perspective 

Kesavananda Bharati case completes fifty years in 2023. It is a unique case because of various reasons. It was heard by the biggest ever bench till date and decided by a thin majority of 7:6. The majority decided that the Parliament of India can exercise its constituent power under article 368 to amend any provision of the fundamental law of the land ie the Constitution. It can very well amend Part III ie Fundamental rights. But,  the Parliament cannot amend the fundamental or basic structure of the constitution. In other words the provisions cannot be amended in such a manner that it violates basic or fundamental structure of the constitution. This is called basic structure theory. Though the majority was thin  in Kesavananda Bharati, in the last fifty years the doctrine was hardly questioned by subsequent benches. The desirability and constitutionality of basic structure theory was honoured by the judges and the benches almost unanimously though the content of basic structure theory remained in dispute. There are disputes among judges about which principles or provisions are part of basic structure theory. Among lawyers, legal academicians and intellectuals there is controversy as to the very desirability of the basic structure theory. Those who favour originalism still argue that the constituent assembly never thought of such a thing like basic structure theory. Otherwise, they must have mentioned it somewhere. The omission by the constituent assembly is deliberate. Those who support basic structure theory argue that the constitution is an organic document, and it keeps on growing. They also advance the idea of utility and usefulness that the basic structure theory was useful in saving judicial review from the 39th amendment of the constitution, maintaining balance between fundamental rights and directive principles of the state policies, arresting the abuse of article 356 by declaring federalism as a part of basic structure theory and judicial independence through four Judges cases, etc. Basic structure theory established that the Supreme Court has the right to review any State action  and, therefore, established its supremacy on constitutional matters. In the USA the Supreme Court has not declared any constitutional amendment as unconstitutional but in India the Supreme Court has declared a number of constitutional amendments as unconstitutional on the ground of basic structure theory. In this sense the Indian Supreme Court has become more powerful than any of the courts in the world. This is the most important contribution by the Supreme court of India.

  Another unique feature of the case is that such a constitutionally rooted doctrine came because of Kesavananda Bharati who a spiritual leader in Kerala was. He was not a constitutional expert or legal scholar. He passed away on Sept 6, 2020. He challenged the land reforms laws in Kerala which created history in the constitutional jurisprudence in India and the world. The arguments raised in the Court those days are significant and therefore it is desirable to go into some of these arguments. 

2. Arguments 

If someone argues following things how would you feel-

1. The Parliament can abrogate fundamental rights such as freedom of speech and expression, freedom to form associations or unions, and freedom of religion.

2. Democracy can even be replaced and one party rule can be established.

3. Any form of Government with no freedom to the citizens can be set up by Parliament.

These three were basic arguments of the Government of India through the Attorney General for India (AGI) in the ‘Kesavananda Bharati (KNB)’ case, 1973. They are summarised in the initial paragraphs of Sikri, CJ in Kesavananda Judgement. Had the SC through majority of seven judges not repelled such arguments, only God knows what would have happened. Through these arguments the Attorney General was not working “for” India but for the Government. Though the AGI  holds office during the pleasure of the President (article 76, he is not the servant of the government of India but he is a servant of the Constitution. he was expected to be a part of ‘check and balance’ in the system, but he breached the promise silently commanded in the constitution of India.      

3. The Source of Basic Structure Theory: 

   In the Basic Law for the Federal Republic of Germany, 1949, Article 79 clause 3 contains similar provision which is as under:

"(3) Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.”  

4. Originalism Vs Pragmatism 

The majority in KNB did not adhere to the doctrine of “Originalism”. Originalism states that the original form of the Constitution cannot be disturbed by the judiciary through an interpretative process. A judiciary is an unelected body, having limited mandate to review the validity of state action. Any disturbance in the original character of the constitution can be made only by the Parliament which has the democratic legitimacy to do it and is accountable to the people of India. The judges are not required to answer the people and therefore the role of judges is limited to interpret the law. Originalism is not against judicial legislation in certain cases but it is restricted. 

However, the judges were courageous, innovative, and discovered or invented the unexpressed judicial power of the SC as a guardian of the constitution.  They heard the silence of the constitution and invoked the wisdom of the constituent assembly which always desired checks and balances over democratic institutions, like Parliament.  The judges preserved, protected and promoted the spirit of constitutional democracy by invoking the doctrine of basic structure theory.  

5. The Constituent Power 

To achieve this end the seven saviours of democratic values and constitutional morality used the means of interpretation called as purposive construction. Indeed the tool used was the constituent power. It is different from statutory, legislative, or constitutional power. It is exclusively provided to the Parliament under article 368. In a sense the Supreme Court usurped that authority. The seven judges were saptarshi (सप्तर्षि). They amended the constitution informally where they read into article 368 a limitation of the basic structure theory on the power of the Parliament. They passed extraordinary judicial legislation of the highest degree in the nature of constitutional amendment. 

6. Rights vis a vis Power Dynamics

This was the beginning of the making of an independent, impartial and a fearless judiciary. Without this type of judiciary democracy, rule of law and constitutionalism is meaningless.  Democracy in general and India in particular is indebted to the seven judges of KN Bharati case and then other cases which kept on sticking to the doctrine of Basic structure theory in various cases.  In the case Golaknath case had developed the "rights" jurisprudence, because it held that fundamental rights cannot be amended by the Parliament. It was a people centric popular decision which was practically against the purpose of Directive Principles of State Policy.

The 24, 25, 26 and 29th amendment were passed to empower the Parliament to amend any part of the Constitution for developing "power" jurisprudence. The purpose was to grant absolute power to the Parliament. It was a power centric decision of the Parliament because they attempted to import the common law doctrine of Parliamentary sovereignty in India. In the UK the Parliament is sovereign. This doctrine of parliamentary sovereignty and representative supremacy was discussed and rejected in the constituent assembly in India. In our country the Constitution of India is supreme and sovereign. The Indira Gandhi government through the Parliament wanted to get absolute power like those of the UK parliament.  The intention of the government and the Parliament may not be bad or anti people. Because an anti-people government cannot survive in democracy for long. It seems they wanted to bring revolution through laws because they thought that in the name of fundamental rights, especially rights relating to property, the judiciary was creating hurdles in the implementation of reforms. But there was some intention to keep the power intact with one party and one person.   

7. Independence Comes with Some Price

In Keshavanand Bharti the SC established a hybrid idea between ‘rights’ of people (established in Golaknath) and the ‘power’ of the Parliament (amendments). The majority decided that the "rights" of citizens are subject to the "Power" of the Parliament. But the power of the Parliament is subject to the "Basic structure theory" under the "the Constitution''. However, as it is said, good things come with some price, and so does democracy. Democracy also needs sacrifice. Independence of Judiciary comes with some cost. The judges who were part of majority judgement in KN Bharati case were superseded because they were committed to the Constitution. A judge, who was committed to the executive, AN Ray J. was picked up and promoted to the position of CJI. First time the constitutional convention was violated. It was violated not for some good. It was breached to find a suitable person in the judiciary who cannot take independent decisions. It was a disgrace to democracy, the profession and the constitution not because the rule of seniority was not observed but because judges were punished for their competence and independence. This reflected the danger in judicial appointments through the executive. AN Ray, J attempted to pay back to their executive masters by manipulating a review of KN Bharati case but he ultimately failed in his design.

The SC through KN Bharati case secured the constitution from the arbitrary decision of the Parliament. One of the arbitrary decisions was the 39th amendment of the constitution where the election of the PM and other officers of the Parliament was declared beyond the power of the judicial review. Indeed this was arbitrarily applied to shield the PM (Ms Indira Gandhi) from a judicial verdict of a very courageous judge,  Sinha, J. of the HC of Allahabad. Justice Sinha convicted Ms Indira Gandhi  for employing corrupt practices to win election. This became the foundation of emergency days which was a real test for the SC, where it failed miserably. While the power of the Parliament was checked by Kesavananda Bharati, the power of the executive was still unrestricted. This unrestricted power of the central executive resulted in an emergency.

8. Surrender before executive 

During emergency, a case was decided ie. ADM Jabalpur v. ShivKant Shukla (1976) which further indicated the vulnerability of executive appointment in the judiciary. The majority of 4 judges of the SC surrendered before the executives. They decided that the fundamental rights and even article 21 can be non-existent during emergency days. Even if any person is arrested or killed, no question can be raised, no reason or basis can be asked. No petition of habeas corpus can be entertained.

HR Khanna J., a great judge of the SC cultivated courage to declare a spade a spade. Khanna, J. dissented which became the silver lining in the dark cloud. As liberty, independence of Judiciary and constitutionalism comes with some price, HR Khanna had also to pay for it whose brilliance and seniority was ignored, and a junior committed judge was made the CJI.  However, his dissent guided the Parliament for a course correction through the 44th amendment of the Constitution but only when the political regime changed. 

9. 45th Amendment, Referendum and Basic structure theory

The Parliament tried to identify the pillars of basic structure theory. Post emergency when the Janata Party came in power defeating Indira Gandhi, they proposed various amendments to secure the democratic set up of the country. They made radical proposals through the 45th amendment of the constitution and proposed that five features are beyond the scope of the constituent power of the Parliament under article 368 for which the referendum shall be required. A proviso was proposed in clause 368(2) which stated that any change in 

1. Secular and democratic character, 

2. Abridging or taking away rights under Part III

3. Prejudicing free and fair elections of Lok Sabha and Legislative Assemblies 

4. Compromising the independence of judiciary and 

5.  This proviso 

Shall need a referendum. Such a referendum shall be a poll by all eligible voters of India who are eligible for general elections ie Lok Sabha.  The quantum of voting was also tough. 51% of all entitled voters can approve the amendment. This would have made article 368 very tough but secure for future Parliament. The proposal shows that the 45th amendment sought democratic legitimacy of the higher level. However, this part of the amendment did not become law.   

X. Asserting Independence-II

While Kesavanand Bharati was the first strong and successful attempt to assert the independence of judiciary from the Parliament, the Supreme court asserted its independence a second time in 1993. This time it was not against the Parliament. It was against the political executive which had the upper and decisive hand in the appointment of judges. The SC further invented authority to make itself more powerful. This time the judicial legislation was passed[declared] insulating the judicial appointment from the domain of political executive. In the second judges' case (1993) followed by the third judges' case (1998) the Supreme court interpreted article 124 of the Constitution and held that the role of the political executive in the appointment in higher judiciary (the Supreme court and the High court) is nominal or formal. 

The upper hand and indeed the final say in the appointment rests with the CJI and the four senior judges which will form a collegium. This reduced the role of the political executives to mere formalities. While the basic structure theory kept on evolving further in various cases between 1973 onwards, in 2015 the Supreme court made the third successful attempt to further insulate judicial independence. 

In the fourth judges' case (2015) the Constitution bench (4:1) declared that the 99th constitutional amendment for an National Judicial Appointment Commission (NJAC) is unconstitutional because they are against the ratio of Kesavananda Bharati case. The NJAC amendment violates the independence of the judiciary which is a part of basic structure theory. Consequently, the NJAC Act, 2014 [https://www.indiacode.nic.in/bitstream/123456789/2142/1/A2014-40.pdf] was also declared unconstitutional. This third attempt to secure the judiciary was against the Parliament as well as the executive, both.

XI. Current trends: Threat from Within

The Supreme Court has secured the democratic values through its various pronouncements. These democratic values are time honoured norms and many of them are mentioned in the constitution of India expressly. Limited power of the Parliament and constitutionalism is a virtue that the 20th century democracies are evolving and establishing. Keshavanand Bharti has done the same by declaring unlimited power as limited by the grund norm of basic structure theory. Independence and impartiality of the judiciary is another democratic virtue. Judiciary secured itself from any arbitrary exercise of Parliament (Keshavanand Bharti) and from the Executive (Judges appointment cases). Recent trends suggest that the threat is neither from the Parliament nor from the executive. It is from within. It is from the bench and the bar. 

In the last few years there have been serious allegations against a few Supreme Court judges. The charges of sexual harassment was made and in some cases it was found to be close to correct. In one case, the rule of natural justice was not followed. However, the Committee consisting of the Supreme Court judges including women judges did not find serious fault in the conduct.  

In another unique incident four Supreme court judges revolted against the functioning of the CJI. The CJI should have heard the voice of his brother judges and addressed their concern. He could not do it. On the other hand the press conference by the four judges cannot be said to be proper. It was a bad precedent. They were under tremendous pressure because of the functioning of the CJI. They thought that there was no option left and the third wing of the State ie judiciary went to the fourth estate ie media. It was not a wise decision. There were options if the four wanted to protest. They could have stopped taking cases, could have gone for leave or could have resigned. But they talked to the media that the CJI is allotting important cases to junior judges or particular judges. The hollowness of this argument was that the next CJIs continued with the same practice. The internal mechanism failed to address the serious problem going on in the bench. What could be a threat to the independence of the judiciary than from the bench. 

The bar in the Supreme court has also attacked the independence of the judiciary by  filing politically sensitive cases in the name of PIL. The judicial process was misused with the idea to influence the electoral process. The Rafale case and Judge Loya are two illustrations. In Rafale case (2018-Manohar Lal Sharma v. Narendra Damodardas Modi) the full bench observed that “the perception   of individuals cannot be the basis of a fishing and roving enquiry by this Court, especially in such matters. ” It rejected the PIL where a demand of investigation of corruption charges or nepotism by PMO in the Rafale jet deal was made on the basis of unsubstantiated media reports. 

In Rafale review (2019) the Supreme court rejected the review petition and observed with greater clarity as under: 

11. All that we would like to observe in this regard is a reiteration of what had already been said by this Court in Kesavananda Bharati Sripadagalvaru v. State of Kerala.  

“Judicial review is not intended to create what is sometimes called Judicial Oligarchy, the Aristocracy of the Robe, Covert Legislation, or Judge­Made Law. The proper forum to fight for the wise use of the legislative authority is that of public opinion and legislative assemblies. Such contest cannot be transferred to the judicial arena. That all Constitutional interpretations have political consequences should not obliterate the fact that the decision has to be arrived at in the calm and dispassionate atmosphere of the court room, that judges in order to give legitimacy to their decision have to keep aloof from the din and controversy of politics and that the fluctuating fortunes of rival political parties can have for them only academic interest. Their primary duty is to uphold the Constitution and the laws without fear or favour and in doing so, they cannot allow any political ideology or economic theory, which may have caught their fancy, to colour the decision.” (Justice Khanna – para 1535). 

Similarly in Judge Loya case the Supreme court condemned the approach of petitioners. In a full bench unanimous decision of Judge Loya death case, (Tehseen Poonawalla v. Union of India, April 19, 2018) it was rightly observed by Dr DY Chandrachud, J. that “the true face of the litigant behind the façade is seldom unravelled” and “political rivalries have to be resolved in the great hall of democracy when the electorate votes its representatives in and out of office.” The Court further observed "Serious attacks have been made on the credibility of two judges of the Bombay High Court. The conduct of the petitioners (Advocate Prashant Bhushan was one of them) and the intervenors scandalises the process of the court and prima facie constitutes criminal contempt. However, on a dispassionate view of the matter, we have chosen not to initiate proceedings by way of criminal contempt." 

In 2020 a senior member of the bar crossed all limits of decency in the name of dissent. Advocate Prashant Bhushan has made grossly irresponsible remarks against the CJI, Justice Bobde connecting him to a political party and spreading factually wrong statements. Prashant Bhushan also made allegations against four CJIs as if they systematically destroyed the democratic values. He was convicted for contempt of the Court and punished. The Supreme court was liberal enough to let him go with the fine of Rs 1 in the expectation that he will mend his ways. 

Another illustration is In Re, Hon’ble Shri Justice C.S. Karnan. Justice Karnan was a judge in the Madras High court and then Kolkata High court. He passed defamatory remarks against various sitting judges. He declared a number of sitting judges of the Supreme Court and the HC as corrupt. This wild allegation was reported in the media. He also issued various directions going beyond his authorities. The SC has taken suo motu cognizance of the case and Justice Karnan was found guilty of Contempt of Court by seven judges unanimous verdict. 

Dec 2023 

In continuation of this internal attack another development is from Dec 2023 which is worth noting. It raises suspicion on the listing of sensitive cases. Sensitive cases currently means cases which have some electoral significance, or cases that are connected with opposition leaders or cases which can bring trouble to the Modi government ect. One of the seasoned lawyers of great repute Mr Dushyant Dave wrote a letter to the CJI expressing his concern on selective listing of cases. Advocate Prashant Bhushan brought this to the notice of Justice SK Kaul that matter pertaining to “delayed appointment and transfer of judges” has not been listed before Justice Kaul who was strict on the government. Justice Kaul replied that he does not know but the CJI must be knowing why it is happening. In open court, Justice Kaul and Prashant Bhushan mull over “very strange” listing business in appointment and transfer of judges case – The Leaflet https://theleaflet.in/in-open-court-justice-kaul-and-prashant-bhushan-mull-over-very-strange-listing-business-in-appointment-and-transfer-of-judges-case/ Those who had objections only thrown an apprehension that government is deliberately doing it without any some material of evidence. In another case is Satyendra Jain bail case. Satyendra Jain, a minister in APP run Delhi government was arrested under PCA, 1988 and PMLA, 2002 and got medical bail on interim basis relating to spine surgery. His interim medical bail was further extended. The government opposed interim bail after some time alleging Satyendra Jain is not cooperating with investigation machinery. It was listed before Justice Bopanna who heard it in part. On next date it has to be heard by the same bench of Justice Bopanna but it was listed before Justice Bela Trivedi. Various advocates were suspicious why the change was made and alleged as if it was done with some mala fide. Or it was done under central government pressure. They made headlines as if discriminatory and arbitrary manners are used on bail to help the party in central government. Fact was that Justice Bopanna after part heard matter went for urgent health related leave. He requested that the case be transferred to another bench. Then the registry transferred the case to the bench of Justice Bela Trivedi. ‘Find it surprising’ — CJI on concerns over Satyendar Jain bail plea being listed before Justice Trivedi (msn.com) https://www.msn.com/en-in/news/India/find-it-surprising-cji-on-concerns-over-satyendar-jain-bail-plea-being-listed-before-justice-trivedi/ar-AA1luFKF 

This way a few learned intellectuals are creating an impression that the Supreme court is not independent and impartial. This is a style of placing unnecessary pressure on the registry and the judges. Indeed the lawyers body also criticises the approach of such lawyers.  CJI Now: Dushyant Dave row refuses to diedown, BCI backs CJI now | India News - Times of India (indiatimes.com)https://timesofindia.indiatimes.com/india/dushyant-dave-row-refuses-to-diedown-bci-backs-cji-now/articleshow/105868165.cms?from=mdr      

Independence of the judiciary is now threatened by their own people at the bench and bar. नाविक  जब नाव डुबोए तो उसे कौन बचाये. 

XII. New developments: EWS reservation 

There are deliberations on what are the pillars of basic structure. Though a few judges in various cases have tried to illustrate, it is a difficult exercise. A decision of 2022 ie Janhit Abhiyan v. Union of India has indicated the complexities. It was a judgement on the validity of EWS reservation. The majority of three judges and the minority of 2 judges both referred to the basic structure theory. The majority argued that if EWS reservation is exclusive in nature [those already getting reservation are not eligible to get EWS, you can get only one reservation.] it does not violate basic structure theory. The minority argued that even EWS cannot be exclusive in nature and it violates basic structure theory. Kesavanand Bharati is dead, long live Kesavanand Bharati.