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The Ninth Schedule Decision

The Supreme Court's decision to judicially review any law incorporated to the Ninth Schedule post April 24, 1973, brings certain troubling questions of constitutional significance to the fore. It exposes the flexibility and vagueness associated with the "basic structure doctrine" and provides an understanding of the vast powers the judiciary has amassed because of the nature of that doctrine.

The Ninth Schedule Decision

Time to Define the Constitution’s Basic Structure

The Supreme Court’s decision to judicially review any law incorporated to the Ninth Schedule post April 24, 1973, brings certain troubling questions of constitutional significance to the fore. It exposes the flexibility and vagueness associated with the “basic structure doctrine” and provides an understanding of the vast powers the judiciary has amassed because of the nature of that doctrine.

MADHAV KHOSLA

F
or three decades now, the landmark basic structure doctrine has formed the bedrock of India’s constitutional jurisprudence. The doctrine, established by the Supreme Court (SC) in Kesavananda Bharati vs State of Kerala (AIR 1973 SC 1461), limits the Parliament’s power to amend the Constitution. In Kesavananda Bharati, the SC held that Article 368 of the Constitution does not provide the Parliament with the absolute power to amend the Constitution. The limitation was that the “basic structure” of the Constitution could not be altered. Inevitably, the doctrine has profound implications for the role of the judiciary in democratic societies and any theory of separation of powers. Although the legitimacy of the doctrine has been the subject of much controversy, the debate has subsided in recent years. The decision of the SC in I R Coelho vs State of Tamil Nadu ((2007) 2 SCC 1) that examined the permissible extent of judicial review of the Ninth Schedule to the Constitution brings the basic structure doctrine back into sharp focus and provides us with an opportunity to revisit this subject.

The Coelho Decision

Article 31-B of the Constitution, inserted by the Constitution (First Amendment) Act, 1951, provides that legislations inserted into the Ninth Schedule cannot be challenged on the ground that they violate the Part III (the fundamental rights chapter) of the Constitution. The SC in Coelho held a provision of this nature that imposed a blanket prohibition on the power of judicial review of the court could not stand the test of the basic structure doctrine.

Consequently, the court concluded that any law incorporated into the Ninth Schedule post April 24, 1973 (the date on which the doctrine was pronounced in Kesavananda Bharati) would be subject to judicial review and could not violate those provisions in Part III that form part of the basic structure. One of India’s leading constitutional experts A G Noorani points out that the decision in Coelho “is neither an exercise of ‘judicial activism’, as properly understood, nor a defeat for ‘progressive’ legislation” (EPW, March 3, 2007). Noorani is certainly correct, the decision naturally flows from the decision in Kesavananda Bharati and forms a standard application of a doctrine now firmly embedded in our constitutional jurisprudence.

Yet, the decision, examined in detail, brings to light certain troubling questions of grave constitutional significance. It exposes the flexibility and vagueness associated with the basic structure doctrine and provides an understanding of the vast powers the judiciary has amassed because of the nature of the doctrine.

According to the basic structure doctrine, as noted above, Parliament’s power to amend the Constitution (Article 368) does not permit it to alter the ‘basic structure’ of the Constitution. Thus, any constitutional amendment passed is subject to judicial review and the judiciary shall test the amendment against the doctrine. If the amendment alters the basic structure of the Constitution, then it shall be struck down. Although Article 368 does not expressly provide for such a limitation on Parliament’s power of amendment, the SC held that such a limitation was implicit in Article 368. Since the decision in Kesavananda Bharati, the doctrine has been consistently applied in the Indian constitutional adjudication to test the constitutionality of amendments to the Constitution.

In S R Bommai vs Union of India ((1994) 3 SCC), the SC applied the basic structure doctrine even though there was no issue relating to a constitutional amendment. The SC, while holding secularism to be a part of the “basic structure”, held that any state that violates this would consequently invite the president’s rule, thereby extending the doctrine to executive action.

Undefined Basic Structure

A serious issue that has thus emerged in the application of the doctrine is the fact that what constitutes the basic structure of the Constitution is not exhaustively defined. Judges evaluate and determine whether the basic structure is violated on a case-by-case basis. There is no defined category and the list of items that form part of the basic structure has been expanding since the pronouncement of the doctrine. While past cases have meant that an inclusive list of some sort is existent, there is no exhaustive formulation. This places a powerful weapon in the hands of the judiciary that enables it to not only review certain legislative and executive actions, but also to do so without an established criterion. The criteria may well be determined depending on the impugned action, thereby allowing the judiciary to apply the law retrospectively.

The Coelho decision is a lucid illustration of this fact. In this decision, the SC read down an explicit constitutional provision (Article 31-B) on the basis of the basic structure doctrine, and consequently held that, certain legislations (those inserted into the Ninth Schedule) could not violate the basic structure in Part III of the Constitution. By providing that certain legislations are subject to a partial basic structure test, I do not mean to suggest that the court wrongly applied the test. Yet, the decision illustrates that because the basic structure is not exhaustively defined, the test may be legitimately applied in a wide range of scenarios. The wider the scope of the test, the greater is the court’s power of judicial review. The Coelho decision thus raises serious concerns about the future of the basic structure doctrine, and begs the question if whether the time has arrived for the Constitution’s basic structure to be exhaustively defined,

Economic and Political Weekly August 4, 2007

15th September 200710th December 2007 17th January 2008

and for the applicability of the doctrine to be better understood.

Doctrine’s Jurisprudence

The Coelho decision marks the most significant development since Bommai in the doctrine’s jurisprudence by extending it to certain statutes in the Ninth Schedule while permitting Article 31-B to remain constitutional. The undefined and fluid category of basic structure means that the scope of the doctrine may gradually increase, as it has done so over the past three decades, to include judicial review beyond all acceptable limits. Further, the problem is not limited only to the fact that what constitutes the basic structure is not defined. Bommai and Coelho reveal that the applicability of the basic structure doctrine is also a matter of interpretation to be determined on a case-by-case basis. Thus, there is clarity neither on “what will apply” nor on “whom will it apply to”.

The theoretical possibilities that this presents, coupled with the activism demonstrated by the Indian judiciary over the past decade, are worrisome. It is not surprising that the judiciary has restrained from elaborating on the category of basic structure.

Such an elaboration would restrict its powers to the clear letter of the law, and would leave little room for it to ride merely on law’s spirit. The fact that the decision in Kesavananda Bharati was delivered by a bench of 13 judges, the largest to ever sit on any matter in the SC, means that overruling the decision anytime in the future, even if desired by some members of the judiciary, would face major practical obstacles.

Ramaswamy Iyer (EPW, May 27, 2006) provides one possible solution to the present problem. He argues that the Parliament should enact an amendment recognising the basic structure doctrine to be a part of the Constitution, and list out its constituent elements. In sum, the Parliament should define the Constitution’s basic structure thereby bringing clarity to the concept. However, this solution is unfortunately plagued with its own practical difficulties. The Parliament is unlikely to agree to this, as they would be legitimising a doctrine that they have criticised so severely since its inception. Further, even if Parliament were to have a consensus on the proposal, it seems unlikely that they could have any consensus on what would form the basic structure. The judiciary, for its part, is likely to strike down such a constitutional amendment as itself violating the basic structure and limiting its power of judicial review. It seems that a far more feasible solution may lie in the judiciary itself defining the basic structure. Purely from a theoretical perspective as well, considering that the basic structure is an interpretative concept, based on a reading of the Constitution as a whole to ascertain its core values, it seems that the task of interpretation should ideally belong to the judiciary. The judiciary will certainly be reluctant to engage in such an exercise, and continue its past approach, for any definition is bound to limit its power as compared with the current position of undefined power.

However, the present state of legal affairs cannot be sustained. It poses grave dangers for the future of Indian governance. The judiciary cannot be granted an unbridled power of judicial review based on an elusive criterion. It is hoped that the judiciary will have the maturity and courage to take this step. Defining the basic structure will certainly not be easy. But, as Coelho reveals, it is necessary.

EPW

Email: madhavkhosla@nls.ac.in

Economic and Political Weekly August 4, 2007

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