Much before Kesavananda Bharati, the ‘North Star’ of the basic structure rose with the Constituent Assembly

The genesis of the basic structure doctrine of the Constitution lies in the legislative intent of the Constituent Assembly and Supreme Court judge Justice J.R. Mudholkar's 1964 judgment, writes S.N. Sahu.

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THE historic 1974 judgment of the Supreme Court of India in the Kesavananda Bharati case is already part of legal folklore. Through that judgment, the court established that the Parliament of India cannot alter the basic structure of the Constitution by employing Article 368 of the Constitution, providing for its amendment. So, in the public consciousness, it is firmly imprinted that the idea of basic structure originated in that 1974 judgment.

But a peep into history illuminates our understanding that the idea of the basic structure of the Constitution can be traced to the legislative intent of the Constituent Assembly and, more importantly, Supreme Court judge Justice J.R. Mudholkar's interrogation, in his judgment of 1964 in Sajjan Singh versus State of Rajasthan, to ascertain if it would be within the purview of Article 368, mandating amendment of the Constitution, to change its basic structure.

Legislative intent of the Constituent Assembly

Let us first explore the legislative intent of the Constituent Assembly concerning the basic structure. Dr B.R. Ambedkar while participating in the discussion on September 17, 1949 in the Constituent Assembly on Article 304 of the draft Constitution dealing with the Parliament's power to amend the Constitution, used phrases such as "fundamentals of the Constitution" and "principles of the Constitution", and indicated that those fundamentals and principles should not be altered.

He claimed that if the power of the states in their legislative, administrative and financial spheres were to be altered by the Union government by employing a two-thirds majority of the Parliament without in any way allowing the states to have any voice, it would mean, in his words, "nullifying the fundamentals of the Constitution".

A distinguished member of the assembly, P.S. Deshmukh, moved an amendment to the aforementioned article and stated that an amendment that would not "vitiate or abrogate the principles of the Constitution" but was necessary, could be passed by a simple majority.

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It is clear from the above articulations of Ambedkar and Deshmukh in the Constituent Assembly that they expressed their intent regarding the inviolability of the fundamentals of the Constitution without expressly saying so.

Justice Mudholkar enunciated the basic features of the Constitution

Having attempted to flag the above vision, it is worthwhile to explore the point that in 1964, ten years before the Supreme Court stated in 1974 that the Parliament cannot alter the Constitution's basic structure, Justice J.R. Mudholkar of the Supreme Court flagged the issue of basic features of the Constitution and raised the question of whether the Parliament could amend it.

He was part of a five-judge Bench headed by the Chief Justice of India (CJI) of that time Justice P. B. Gajendragadkar who adjudicated the challenge to the 17th constitutional amendment in the aforementioned Sajjan Singh case.

The said amendment inserted Article 31B into the Constitution, enabling the government to acquire land for giving effect to land reforms and put it in the Ninth Schedule. It provided that any of its provisions could not be challenged on the ground that they contravened fundamental rights.

It may be mentioned that after the Constitution came into force on January 26, 1950 it was amended year after year, and in its first 15 years amendments to it were affected 17 times. The 17th Amendment put 44 agrarian laws in the Ninth Schedule and endeavoured to put them beyond the scrutiny of judicial review.

The five-judge Bench which heard the challenge adjudicated in favour of the 17th Constitution Amendment Act and CJI Gajendragadkar upheld the untrammelled power of Parliament under Article 368 to amend any provision or aspect of the Constitution.

Justice Mudholkar, in his separate opinion, concurred with Gajendragadkar for upholding the 17th Constitution Amendment Act but raised the question concerning the extent to which the Constitution could be amended.

He searchingly asked, "Whether making a change in the basic features of the Constitution can be regarded merely as an amendment?"

He proceeded to sharply observe, "Or would it be, in effect, rewriting a part of the Constitution, and if it is the latter, would it be within the purview of Article 368?"

He, for the first time, used the phrase "basic features of the Constitution" and wondered if those could be changed by the Parliament while exercising its power to amend the Constitution as per Article 368.

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With concern and anxiety, he took a stand by asking if fundamental rights such as equality, the right to life and liberty and the right to free speech were taken away, are we amending the Constitution or substituting a new Constitution in place of the existing one?

"It is also a matter for consideration," he asked, "whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of Article 368 ?"

It is quite illuminating to note that he gave a fascinating interpretation of the Preamble of the Constitution and opined that it embodied the basic features of the Constitution.

He stated in his judgment, "Above all, it formulated a solemn and dignified Preamble which appears to be an epitome of the basic features of the Constitution" and then asked, "Can it not be said that these are indicative of the intention of the Constituent Assembly to give a permanency to the basic features of the Constitution?"

By drawing a parallel between the basic features of the Constitution and the Preamble, he underlined a significant point, that the essence of the Constitution is represented in the Preamble. It is worth noting that now people are reading out the text of the Preamble in public places to uphold the Constitution and save it from the assaults on it from the powers that be.

It is instructive that Justice Mudholkar asked a question as to how the oath taken by the members of Parliament bearing or making an affirmation to bear true faith and allegiance to the Constitution can be reconciled with amendments to alter the basic features of the Constitution.

"If upon a literal interpretation of this provision, an amendment even of the basic features of the Constitution would be possible, it will be a question for consideration as to how to harmonise the duty of allegiance to the Constitution with the power to make an amendment to it," he observed.

"Could the two be harmonised," he asked, "by excluding from the procedure for amendment, alteration of a basic feature of the Constitution?"

Pakistan's Supreme Court and fundamental features of the Constitution

To bolster the issues raised by him regarding the sanctity of the basic features of the Constitution, he very interestingly referred to a judgment of the Supreme Court of Pakistan which was headed by its Chief Justice Cornelius who was a Christian.

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In Fazlul Quader Chowdhry versus Muhammad Abdul Haque (1963), the Pakistan Supreme Court held that "the franchise and form of government are fundamental features of a Constitution and the power conferred upon the President by the Constitution of Pakistan to remove difficulties does not extend to making an alteration in a fundamental feature of the Constitution".

Arvind Datar's views

Senior advocate Arvind Datar, in his legal notes, writes, "In my view, Justice Mudholkar's judgment deserves to be carefully read for it shows a deep understanding of constitutional principles and values."

"The judgment," he remarked, "goes beyond the immediate effect of a particular amendment and looks at enduring values that must be preserved and protected." He asserted that "contrary to popular belief, the words 'basic features' were not first used by Dieter Conrad in his lecture in Benaras but were first used by Justice Mudholkar in the Sajjan Singh case".

Owing a deep sense of gratitude to him, Datar wrote, "This was the seed that eventually blossomed into the basic structure doctrine that was evolved and made part of our Constitution in the Kesavananda Bharati case."

Attack on basic structure by the Vice President of India and CJI Chandrachud's defence

In 2023, the fiftieth anniversary of the basic doctrine was celebrated. The entire judicial fraternity and the whole nation were outraged when the Union law and justice minister Kiren Rijiju and even the Vice President of India Jagdeep Dhankhar publicly made statements against the basic structure doctrine and upheld the supremacy of the Parliament.

It was responded to by the CJI Dr D.Y. Chandrachud who, delivering the 18th Nani Palkhivala Memorial Lecture in Mumbai on January 22, 2023, said, "The basic structure of our Constitution, like a North Star, guides and gives direction to those who interpret and implement it when the path ahead is convoluted."

He proceeded to reaffirm that "the basic structure or the philosophy of our Constitution is premised on the supremacy of the Constitution, the rule of law, separation of powers, judicial review, secularism, federalism, freedom and dignity of the individual and unity and integrity of the nation".

Locating the genesis of the basic structure doctrine in the legislative intent of the Constituent Assembly and Justice Mudholkar's 1964 judgment is a critical necessity to appreciate the way in which it was outlined in Kesavananda Bharati case. This history is woven into the lasting relevance of the Constitution in defence of which people have come forward and made it a national cause.