Basic Structure Review and the Emerging Disjunctures Between Text and Practice
While Kesavananda and the cases that followed filled reams of pages and are still amongst the longest appellant decisions in history, they left some important questions about the text of the Constitution unanswered.
The Supreme Court was, but naturally, concerned about whether Parliament’s power of amendment could be restricted in principle. What it did not consider was the mechanics of that restriction. Would the exercise of basic structure review to strike down an amendment merely result in the disapplication of the relevant constitutional provision, or would it eliminate this provision from the statute book altogether?[627] In other words, were the official publishers of the Constitution meant to be concerned about exercises of basic structure review, or would it suffice to treat such review as an interpretive exercise as any other? Whereas some European constitutional courts possess the power to strike legislation out of the statute book, the trend amongst common law courts is for legislation that is struck down to remain on the statute book, but be inoperative for all practical purposes by virtue of the doctrine of precedent.[628]It soon became clear that constitutional amendments that were struck down in an exercise of basic structure review would be treated in much the same way as statutes that are struck down for violating constitutional provisions. This was a paradoxical combination of transformative doctrine combined with traditional separation of powers theory. While the Court had the power to declare an amendment invalid and deprive it of any effect, it would not be in a position to remove it from the constitutional text altogether, and restore the text as it existed before the amendment was enacted. The provision could be removed only through legislative repeal, or in the case of the Constitution, a further constitutional amendment removing the relevant amendments from the text.
One scholar explains the impact of a judicial strike down succinctly:A judicial declaration of the unconstitutionality of a statute has not the effect of either annulling it or repealing it. Repeal assumes the existence of a valid law until the moment of repeal [...] to hold that a judicial declaration of unconstitutionality of a statute is tantamount to nullification of the statute would be to attribute to the court legislative powers.[629]
Naturally, the implications of leaving inoperative provisions in the text of a Constitution, as opposed to a statute, are significantly pronounced. The Constitution animates the popular discourse as no other text, including a ‘constitutional statute’,[630] does. The text is a reference point—a ‘common denominator’ and ‘historical context’[631]—for debates on issues as diverse as the federal distribution of powers, affirmative action in education and employment, and the protection of the rights of minorities. Citizens read the Constitution in the expectation that it accurately lays down the fundamental rules of the game in the state. Yet, the basic structure doctrine has meant that the Constitution functions differently from what the text provides in some cases, or in fact with the opposite effect to the text in many others.
In Kesavananda, the Court held that any constitutional amendment enacted after the date of the judgment, 24 April 1973, could be challenged on the basis that it violated the basic structure of the Constitution. Between 24 April 1973 and 15 October 2015, provisions of constitutional amendments were struck down by the Supreme Court in five cases on the basis that they violated the basic structure of the Constitution.[632]
The first example comes from Kesavananda itself. Article 31C was inserted into the Constitution by the 25th Amendment in 1971, at a time approaching the pinnacle of the conflict between the Indira Gandhi government and the courts.
It stated that no law effectuating a policy aiming to secure the Directive Principles dealing with property redistribution could be struck down for violating the right to equality, the right to freedom and the (erstwhile) right to property. It also usurped the Court’s power to decide whether the law effectuated this policy, by stating that ‘no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy’. The second half of this provision was struck down on the basis that it gave carte blanche to the legislature to immunize any statute from three essential fundamental rights, by simply including a declaration that it was in furtherance of land redistribution.The second occasion for striking down a constitutional amendment arose soon after Kesavananda. The Congress government had mobilized to amend the Constitution in order to secure the election of Indira Gandhi,[633] who had been unseated by a state High Court for engaging in corrupt practices. The Supreme Court struck down part of the amendment on the basis that it was an attempt at validating a specific election through a declaratory judgment.[634] The Court took issue with the fact that the amendment was an attempt at validating an invalid election, without changing the basis upon which the election was invalid in the first place.
Strike three would also take place soon after, in the Minera Mills case described earlier. The Supreme Court struck down an attempt to overturn the basic structure doctrine, by holding that a constrained amending power was itself part of the basic structure of the Constitution.[635] Parliament, a creature of the Constitution, could not amend it in a way that transformed it into its master.[636] [637] The Court also struck down an amendment seeking to immunize legislation advancing directive principles from being challenged on the basis that it violated the rights to equality and freedom. The next occasion involving the striking down of a constitutional amendment arose a few years later, in Sambamurthy?3 Following the creation of the southern state of Andhra Pradesh, widespread agitations, involving the manner in which education and employment in public services were being addressed, took place across the state. This led to a political settlement in the form of a ‘six-point formula’ between the Andhra and Telangana regions, which promised balanced development of the state. The formula was operationalized through an amendment to the Constitution.[638] The formula envisaged the establishment of an Administrative Tribunal to address the grievances of government employees. However, it effectively handed the state government a veto power over the decisions of the Tribunal,[639] by permitting it to ‘modify or annul’ any of its orders within three months of having been made. The only qualifications upon the exercise of this veto power were that the power would need to be exercised in writing and supported by reasons, and the order exercising the power would be laid before the state legislative body. The Court struck down the veto power granted to the state government by the constitutional amendment. Justice Bhagwati pinned this decision to the rule of law, which the Court had previously held formed of the basic structure of the Constitution. For the state government to have this sweeping veto power over any decision of the Tribunal, including interim orders, would ‘sound the death knell’ of the rule of law and enable the government to ‘defy the law’ and ‘get away with it’.[640] Over a decade elapsed before the next occasion arose for the Supreme Court to strike down another constitutional amendment. Unlike most of the other cases, the Court was considering the validity of a constitutional amendment that was not quite hot off the coals. One element of the sweeping amendments made to the Constitution by Indira Gandhi during the national emergency was the introduction of constitutional provisions for the establishment of tribunals that would lighten the docket of the courts. The constitutional amendment ousting the jurisdiction of the High Courts was upheld in early decisions of the Supreme Court.[641] However, in L Chandra Kumar[642] the Court reconsidered whether these provisions were consistent with the basic structure of the Constitution. On this occasion, more than twenty years after the amendments were enacted, the Court arrived at a different answer. It held that judicial review formed part of the basic structure of the Constitution, and a constitutional amendment could not exclude judicial review of the High Courts and Supreme Court. Tribunal members, in the Court’s opinion, could not be ‘effective substitutes for the superior judiciary in discharging the function of constitutional interpretation’.[643] Two discrete provisions of the Constitution were thus struck down. The Supreme Court came close to striking down another provision of the Constitution introduced by a constitutional amendment in Kihoto Hollohan.[644]' The Court was considering amendments to the Constitution setting out provisions by which legislators could be disqualified on the basis of defection to other political parties. One of these provisions ousted the jurisdiction of the courts with respect to the disqualification of members. This provision was challenged on two grounds— first, that it required the ratification of state legislatures in order to be effective, and second, that it violated the basic structure of the Constitution. The majority held that the provision was unconstitutional for failing to secure the ratification of the states, and held it unnecessary to consider whether it also violated the basic features of the Constitution. Two judges indicated that they would have struck down this provision on the basis that for the Speaker of the House to be a final arbiter on questions of disqualification violated the rule of law, which by then was well recognized as a basic feature of the Constitution.[645] 4