It is now trite to assert that the Supreme Court has time and again indulged in judicial aggrandizement by arrogating to itself powers it was never meant to exercise under our constitutional scheme. It seems to be the case that lawyers and other State institutions have failed to rein in judicial overreach. This failure can largely be attributed to the fact that the Supreme Court has refused to engage with such criticism on a case to case basis and hence, incrementally expanded its authority. Moreover, given that there is no institution which keeps a check on the Supreme Court and its exercise of power, such incremental increase of judicial authority is often presented as a fait accompli. There seems to be a need for inventing new legal tools to make the Court accountable for its exercise of authority. In this article, I argue that certain judicial orders (which cannot be termed as ‘judicial’ by any conservative means) should be subjected to the basic structure review. This article is divided into two parts. In Part I, I analyze the case law and establish the logic of subjecting ordinary law (and executive action) to the basic structure review. In Part II, I extend that logic to judicial orders.
Basic Structure and State Action
The doctrine of basic structure was laid down in Kesavananda. It was largely founded on a structuralist interpretation of the Constitution. As per the doctrine, the ‘identity’ of the Constitution is immutable and the Parliament cannot amend the Constitution to destroy its ‘basic structure’ or abrogate its ‘basic or essential features’. This doctrine has been extended to test the validity of ordinary legislation and executive action.
- Ordinary Law: Analysis of the case law
Right in the early years of the doctrine, the Court in Indira Gandhi held that an ordinary law cannot be subjected to the basic structure review given that the doctrine, as expounded in Kesavananda, only restricted the amending power of the Parliament under Article 368. In Bhim Singhji also, the Court held that the basic structure doctrine can be used to test the vires of a constitutional amendment but not an ordinary law.
In this regard, Ismail Faruqui manifested a volte-face as the Court subjected the Acquisition of Certain Area at Ayodhya Act, 1993 to the basic structure review and struck down Section 4(3) as being violative of the rule of law (one of the basic features of the Constitution). Hence, the basic structure review was considered as an independent substantive model of judicial review of ordinary law in addition to the fundamental rights compliance and the legislative competence models. This model was further used in G.C. Kanungo to strike down the Arbitration (Orissa Second Amendment) Act, 1991 as being violative of the rule of law. In Indra Sawhney (II), the Court reiterated that neither the Parliament nor the State Legislature can “transgress the basic feature of the Constitution”. However, it must be noted that the strength of the benches in Ismail, Kanungo and Indra (II) was smaller than that in Indira Gandhi (constitution bench). Hence, one could not have said with certitude that it was a settled law after these judgments.
In Kuldip Nayar, the Court was hearing a basic structure challenge to the constitutional validity of the Representation of People (Amendment) Act, 2003. As a primary issue, the Court provided substantive reasons to hold that the Act does not violate the basic structure. But, as a secondary issue, the Court relied on Indira Gandhi and held that an ordinary law cannot be subjected to the basic structure review. This position was reiterated by the Court in Ashoka Kumar Thakur. However, the Court took another U-turn in Madras Bar Association by holding that ordinary legislation can be subjected to the basic structure review. The Court in the NJAC Judgment did not resolve the controversy. While Justice Khehar held that an ordinary law can be subjected to the basic structure review, Justice Lokur held the contrary. The other three judicial opinions did not provide any conclusive dictum. Hence, as of now, there are conflicting judgments on this point.
- Executive Action: Analysis of the case law
In S.R. Bommai, the Court invoked, inter alia, the basic structure doctrine to justify judicial review of proclamation of state emergency by the President, and observed that such a proclamation had the potential to “subvert the constitutional scheme” or upset the constitutional balance. Hence, the Court needed to ensure that such exercise of power was in conformity with the basic features of the Constitution. Ultimately, the Court invoked one of the basic features i.e. secularism to hold that the proclamation in that particular case was valid. Further in B.R. Kapur, the Court used the basic structure doctrine to place substantive limits on the discretion of the Governor under Article 164. Furthermore, in Aruna Roy and P.M. Bhargava, actions of NCERT and UGC respectively were subjected to the basic structure review. These cases show that the basic doctrine has been used by the Court to test the validity of executive action.
- The logic
The following argument pre-supposes that the basic structure doctrine is legitimate. As far as the basic structure review of ordinary law is concerned, we have seen that there are conflicting judgments. The Court in Indira Gandhi observed that Kesavananda laid down the rule to test a constitutional amendment on the touchstone of the basic structure, and “it does not logically follow from the majority judgment…that ordinary legislation must also answer the same test.”
Contrast this with the proposition in Madras Bar Association: “an amendment to the provisions of the Constitution would not be sustainable if it violated the basic structure…This leads to the determination that the basic structure is inviolable…the same would apply to all other legislations”. This logic has three prongs. Firstly, our constitutional scheme is founded on the principle of constitutional supremacy. Structuralist interpretation of our constitution shows that it has an ‘identity’ which is “immutable” or “inviolable”. Secondly, proceeding from the first, the Parliament cannot amend the Constitution so as to abrogate its basic structure. These two propositions were laid down in Kesavananda. Thirdly, based on the observations in Indira Gandhi, there is a hierarchized authoritative scheme in the Constitution which makes the Parliament (in its constituent authority) superior to the Parliament (in its legislative authority) and other organs of the State and other constitutional authorities. If the superior most authority cannot abrogate the basic structure of the Constitution, how can any inferior authority be it the Parliament in its legislative capacity or any other constitutional authority abrogate the basic structure? Hence, it does logically follow from Kesavananda that ordinary legislation [or any executive action for that matter] must answer the same test. This is furthered by the fact that an amendment procedure requires special majority (along with ratification by the State Legislatures in certain cases) unlike ordinary law-making which merely requires a simple majority. The issue in Kesavananda was only regarding constitutional amendments. It was for the later judgments to extend that logic to ordinary legislations which the ones relying on Indira Gandhi failed to do.
In this part, I have shown that there is already a jurisprudential recognition of the proposition that all forms of State actions can be subjected to the basic structure review in light of the constitutional principles. In the next part, I will present arguments for subjecting certain judicial orders to the basic structure review.