When the Basic Structure doctrine was first argued before the Supreme Court of India in 1951

In Indian constitutional law, there is perhaps no greater case than the judgment of the Supreme Court in Kesavananda Bharati v. State of Kerala. As is well known, this judgment, delivered by a bench of thirteen judges, cemented the position that Parliament does not have unlimited powers when it exercises is its amending powers under Article 368 of the Constitution.

The judgment was pronounced on April 24, 1973. This year marks the 50^th anniversary of this judgment. Indeed, this judgment is considered so momentous that the Supreme Court unveiled a webpage dedicated to making publicly available all the resources pertaining to this case.

It is tempting to think that this Basic Structure doctrine originated in the Kesavananda Bharati case. Yet, the reality is that it was really a culmination of a line of thinking in Indian juristic thought that some substantive limits must be thought of to control Parliament’s power to amend the Constitution.

The most famous iteration of the principle akin to the Basic Structure doctrine is attributed to Justice JR Mudholkar. A recent article by Arvind Datar provides an illuminating account of how Justice Mudholkar came to enunciate the jurisprudential idea closest to the Basic Structure doctrine.

In his separate opinion in Sajjan Singh v. State of Rajasthan, Justice Mudholkar observed that the Constitution itself offers some clues as to what constitutes its “basic features” or essential elements. In his view, these features were beyond constitutional amendments. Here is how Justice Mudholkar saw it:

"We may also have to bear in mind the fact that ours is a written Constitution. The Constituent Assembly which was the repository of sovereignty could well have created a sovereign Parliament on the British model. But instead it enacted a written Constitution, created three organs of State, made the union executive responsible to Parliament and the State executives to the State Legislatures; erected a federal structure and distributed legislative power between Parliament and the State Legislatures, recognised certain rights as fundamental and provided for their enforcement; prescribed forms of oaths of office or affirmations which require those who subscribe to them to owe true allegiance to the Constitution and further require the members of the Union Judiciary and of the higher judiciary in the States, to uphold the Constitution. Above all, it formulated a solemn and dignified preamble which appears to be an epitome of the basic features of the Constitution. Can it not be said that these are indicia of the intention of the Constituent Assembly to give a permanency to the basic features of the Constitution?"

Justice Mudholkar concluded his judgment thus:

"Before I part with this case I wish to make it clear that what I have said in this judgment is not an expression of my final opinion but only an expression of certain doubts which have assailed me regarding a question of paramount importance to the citizens of our country : to know whether the basic features of the Constitution under which we live and to which we owe allegiance are to endure for all time — or at least for the foreseeable future—or whether they are no more enduring than the implemental and subordinate provisions of the Constitution."

What Justice Mudholkar alluded to was the idea that there is a crucial functional value that these basic features of the Constitution serve. They represent the scheme of the Constitution. They must be preserved, and they must indeed endure, after amendments have been made to the Constitution. In other words, there is a grander constitutional scheme at play which ought not to be tinkered with when Parliament decides to amend the Constitution.

However, it does appear that the person who perhaps first articulated the idea that there are features of the Constitution that are beyond the pale of Parliament’s powers to amend the Constitution was Dr BR Ambedkar. Interestingly, he presented this point not as a member of the Constituent Assembly and not even as the country’s first Law Minister. He made this point as a counsel in the case of State of Bihar v. Kameshwar Singh.

Soon after the Constitution was enacted on January 26, 1950, several land reform laws were challenged in various High Courts across the country. It was the Patna High Court that delivered a judgment invalidating the legislation. Saurabh Kirpal’s recent book Fifteen Judgments: Cases that Shaped India’s Financial Landscape contains an excellent analysis of how the cases surrounding land reform laws in the early years of the Republic played out.

In June 1951, Parliament passed the First Amendment to the Constitution. One of the most important features of this amendment was that Parliament sought to shield laws pertaining to land reform and agrarian reform from judicial review, by introducing new articles to that effect [Article 31A and Article 31B read with the Ninth Schedule]. These amendments became the subject matter of review in Sankari Prasad Singh Deo v. Union of India, which upheld the First Amendment.

In the Kameshwar Singh case, counsel had to become creative and adopt a new strategy to challenge land reform laws which had been made immune from judicial review by the First Amendment.

Dr Ambedkar, who represented the interests of some zamindars, argued that regardless of the First Amendment to the Constitution, there was a particular constitutional principle which could not be affected by a constitutional amendment.

He propounded the idea that there was something such as the “spirit of the Constitution.” This spirit of the Constitution, according to Dr Ambedkar, substantively barred Parliament from enacting laws which took away private property without proper compensation. In other words, no form of constitutional amendment could allow Parliament to acquire property without compensation. As the judgment records:

"Dr. Ambedkar, who appeared for some of the zemindars in the Uttar Pradesh batch of cases, advanced a different line of argument…But he maintained that a constitutional prohibition against compulsory acquisition of property without public necessity and payment of compensation was deducible from what he called the “spirit of the Constitution”, which, according to him, was a valid test for judging the constitutionality of a statute. The Constitution, being avowedly one for establishing liberty, justice and equality and' a government of a free people with only limited powers, must be held to contain an implied prohibition against taking private property without just compensation and in the absence of a public purpose."

He relied on certain American decisions and text books to support the view that a constitutional prohibition can be derived by implication from the spirit of the Constitution, where no express prohibition has been enacted in that behalf.

Incidentally, as Law Minister, Dr Ambedkar had piloted the First Amendment Bill in Parliament. But now in the Supreme Court in 1952, Dr Ambedkar had to think of some way of getting around the embargo on judicial review imposed by the First Amendment.

Ultimately, the Supreme Court rejected these arguments by observing that if the Constitution contained an express stipulation that laws relating to land reform (referring to Article 31) could not be reviewed, then such a stipulation could not be circumvented by invoking the spirt of the Constitution.

Nevertheless, Dr. Ambedkar had presented a possible interpretation of the Constitution so that the architecture of the Constitution can be preserved. This became a reality in 1973 in Kesavananda Bharati’s case, albeit in a different formulation.

Then in 2007, a nine-judge bench of the Supreme Court in IR Coelho v. State of Tamil Nadu declared that notwithstanding Article 31B, laws inserted in the Ninth Schedule after April 24, 1973 would be open to judicial review.

In essence, these judgments asserted the idea that the fundamental purpose of the Basic Structure doctrine is to ensure the survival of the spirit of the Constitution. Yet seen from whichever perspective, the central idea of the Basic Structure doctrine is that the spirit of the Constitution must endure forevermore.

Rohan J Alva is an arguing counsel practising in the Supreme Court and Delhi High Court.

He is the author of A Constitution to Keep: Sedition and Free Speech in Modern India and Liberty After Freedom: A History of Article 21, Due Process and the Constitution of India (HarperCollins).