Basic structure and unwritten constitutional principles: analysing the Canadian Supreme Court’s recent ruling in relation to the position in India

Recently, a Canadian Supreme Court judgment held that it should not be possible for courts to use unwritten principles to strike down legislation as it would negate the legislative power available to the Parliament. Comparing this decision to the series of landmark judgments available in India on the basic structure doctrine, GAURAV THOTE examines the nature of the doctrine and its applicability almost half a century later.

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ON October 1, 2021 a constitution bench of the Canadian Supreme Court, in a 5:4 majority, held in the case of City of Toronto vs. Attorney General of Ontario that unwritten constitutional principles like democracy could not be relied upon as the basis for invalidating legislations. Relying on Section 33 of the Canadian Charter of Rights and Freedoms, the majority view observed that by allowing the use of unwritten principles to strike down legislations, courts would be circumventing the legislative override available to the Canadian Parliament.

The judgment rendered by Justice R.S. Abella strongly dissented from the majority view, holding that unwritten constitutional principles are not merely "context" or "backdrop" to the written text but are the Constitution's most basic normative commitments from which specific textual provisions derive.

Also Read: Keshavananda Bharati of 'basic structure' fame dies

Facts of the case

In 2013, the City of Toronto engaged consultants to conduct a Boundary Review of Toronto's then 44-ward structure. They recommended an expanded 47-ward structure, which the city adopted in 2016. In May 2018, the City of Toronto campaign commenced and nominations opened in preparation for an election day.

By the close of nominations on July 27, 2018, just over 500 candidates had registered to run in the 47 wards. That same day, the Government of Ontario announced its intention to introduce legislation reducing the size of Toronto City Council to 25 wards. In August 2018 the Better Local Government Act came into force, reducing the number of wards from 47 to 25. This created an enormous disruption in the election process as nominations had been filed for all the 47 wards and significant amounts had been spent on campaigning.

The legislation was challenged, and a single judge held that the impugned legislation was violative of the candidate's right of freedom of expression and the voters' right to effective representation.

The Court of Appeals, by its majority, reversed this view. It was observed that unwritten constitutional principles did not confer upon the judiciary the powers to invalidate any legislation unless such enactment had infringed specific provisions of the Canadian Charter of Rights and Freedoms. This view was upheld by a nine-judge bench of the Supreme Court.

Basic structure and unwritten constitutional principles: legal position in India

In Kesavananda Bharati, the matter of dispute was that the right to property had been removed as a fundamental right, and the Parliament had given itself the power to amend any part of the Constitution while passing a law that such amendments could not be reviewed by courts. Overruling this, the thirteen-judge bench held that although the Parliament had vast powers to amend the constitution, the basic structure of the Constitution and unwritten principles that followed were so inherent and intrinsic to the constitution that even the Parliament could not touch it/them.

In Indira Nehru Gandhi vs. Raj Narayan (1975), the constitutional validity of the Constitution (Thirty Ninth Amendment) Act of 1975, the Representation of People (Amendment) Act, 1974 and the Election Laws (Amendment) Act, 1975 were under challenge before the Supreme Court. Relying on Kesavananda Bharati, it was contended that like constitutional amendments, ordinary legislative measures were subject to the restrictions of not damaging or destroying the basic structure or basic features of the Constitution.

This contention was rejected by the apex court, which observed that the majority view in Kesavananda Bharati did not support such an interpretation. It was held that although an amendment to the Constitution under Article 368 could be challenged on the ground of violation of the basic structure of the Constitution, an ordinary legislation could not be so challenged.

Subsequently, constitution benches of the Supreme Court in Kuldip Nayar vs. Union of India (2006) and Ashoka Kumar Thakur vs. Union of India (2008) affirmed the view taken in Indira Nehru Gandhi.

Interestingly, in Madras Bar Association vs. Union of India (2014), a constitution bench of five judges of the Supreme Court took a contrary view after referring to Indira Nehru Gandhi. The lead judgment authored by Justice J.S. Khehar observed:

"This Court has repeatedly held, that an amendment to the provisions of the Constitution, would not be sustainable if it violated the "basic structure" of the Constitution, even though the amendment had been carried out, by following the procedure contemplated under "Part XI" of the Constitution. This leads to the determination, that the "basic structure" is inviolable. In our view, the same would apply to all other legislations (other than amendments to the Constitution) as well, even though the legislation had been enacted by following the prescribed procedure, and was within the domain of the enacting legislature, any infringement to the "basic structure" would be unacceptable." [emphasis added]

This view was reaffirmed by another constitution bench of the Supreme Court in Supreme Court Advocates-on-Record vs. Union of India (2015) wherein it was held:

"So far as the issue of examining the constitutional validity of an ordinary legislative enactment is concerned, all the constitutional provisions, on the basis whereof the concerned "basic feature" arises, are available.

… when a challenge is raised to a legislative enactment based on the cumulative effect of a number of Articles of the Constitution, it is not always necessary to refer to each of the concerned Articles, when a cumulative effect of the said Articles has already been determined, as constituting one of the "basic features" of the Constitution. Reference to the "basic structure", while dealing with an ordinary legislation, would obviate the necessity of recording the same conclusion, which has already been scripted while interpreting the Article(s) under reference, harmoniously. We would therefore reiterate, that the "basic structure" of the Constitution is inviolable, and as such, the Constitution cannot be amended so as to negate any "basic features" thereof, and so also, if a challenge is raised to an ordinary legislation based on one of the "basic features" of the Constitution, it would be valid to do so. If such a challenge is accepted, on the ground of violation of the "basic structure", it would mean that the bunch of Articles of the Constitution (including the preamble thereof, wherever relevant), which constitute the particular "basic feature", had been violated." [emphasis added] 

Justice Madan Lokur strongly dissented from this view. Placing reliance on State of Karnataka vs. Union of India (1977), the dissenting view held that it was only a constitutional amendment that could be challenged on the ground that it violated the basic structure of the Constitution. Thus, Justice Lokur opined that challenge to a legislation did not stand on the same footing.

Indian position still not settled

Section 33 of the Canadian Charter of Rights and Freedoms is a non-obstante clause which empowers the Parliament or provincial legislature to declare that a legislation would operate as valid notwithstanding the provisions of Section 2 or Section 7-15 of the Charter (fundamental rights). While it may be argued that the minority view is better reasoned and merits acceptance, it cannot be denied that section 33 of the charter leaves very little scope for the judiciary to intervene.

In India, the issue as to whether a legislation can be struck down by the Court for violating the "basic structure" or "unwritten constitution principles" is still not settled.

The union government recently defended the Tribunal Reforms Act before the Supreme Court, contending that a legislation could not be invalidated on the ground that it violated the basic structure doctrine. However, in the backdrop of the apparent conflict of opinions on this issue, it is high time that a larger bench is constituted to settle these troubled waters.

(Gaurav Thote is an advocate practising at the Bombay High Court and the Mumbai bench of the National Company Law Tribunal. The views expressed are personal.)