Doctrine’s core

Published February 7, 2015
The writer is an author and a lawyer based in Mumbai.
The writer is an author and a lawyer based in Mumbai.

THE ‘basic structure’ doctrine has become law in South Asia. It simply says that parliament may not, even by a constitutional amendment, “alter the basic structure or framework of the constitution”. This doctrine has been accepted by the Supreme Courts of India and Bangladesh, while the Supreme Court of Pakistan has made impressive strides towards its acceptance.

On Feb 27, 1967 a special bench of 11 judges of the Supreme Court of India ruled, by a narrow majority in the famous Golak Nath case, that “parliament has no power to amend Part III of the constitution so as to take away or abridge the fundamental rights”. This was rightly perceived to be a political judgment to check Indira Gandhi.

It was, however, overruled by the court on April 24, 1973 by a larger bench in the Kesavananda Bharati case. It went on to propound the doctrine. Article 368 of the Indian constitution, which empowers parliament to amend the constitution, “does not enable parliament to alter the basic structure or framework of the constitution”. It was, again, a narrow majority which carried the day.

The next day, Indira Gandhi superseded three of the most senior judges of the court and appointed a favourite, Justice A.N. Ray, as India’s next chief justice. Even now, the court has not fully recovered from this blow dealt to the independence of the judiciary. The doctrine’s worth was proved fully later. It has struck firm roots now.

But, as pointed out, little or no credit is given to its author. He was Prof Dietrich Conrad, who held the post of head of the law department, South Asia Institute of the University of Heidelberg, Germany.

In February 1965, while on a visit to India, he delivered a lecture on ‘Implied limitations of the amending power’.

Prof Conrad’s lecture showed perception besides deep learning. He observed: “Perhaps the position of the Supreme Court is influenced by the fact that it has not so far been confronted with any extreme type of constitutional amendments. It is the duty of the jurist, though, to anticipate extreme cases of conflict, and sometimes only extreme tests reveal the true nature of a legal concept.

The basic law doctrine has struck firm roots in the region.

“So, if for the purpose of legal discussion I may propose some fictive amendment laws to you, could it still be considered a valid exercise of the amendment power conferred by Article 368 if a two-thirds majority changed Article I by dividing India into two states of Tamilnad and Hindustan proper?

“Could a constitutional amendment abolish Article 21, to the effect that forthwith a person could be deprived of his life or personal liberty without authorisation by law? Could the ruling party, if it sees its majority shrinking, amend Article 368 to the effect that the amending power rests with the president acting on the advice of the prime minister? Could the amending power be used to abolish the constitution and reintroduce, let us say, the rule of a Mughal emperor or of the Crown of England?”

But, it had scant effect on the court.

Justice H.R. Khanna, whose judgment tilted the balance in 1973 approved as “substantially correct” the following observations by Prof Conrad: “Any amending body organised within the statutory scheme, howsoever verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its constitutional authority.”

Conrad was an original thinker, erudite in the constitutional law of Pakistan, India and Bangladesh and counted many of their senior lawyers among his friends.

It was not a mere coincidence that a German scholar should have propounded the doctrine. Hitler came to power by constitutional means but proceeded to destroy the Weimar Republic by amending its constitution. No wonder Article 79(3) of the Basic Law of the Federal Republic of Germany, adopted on May 8, 1949, bars explicitly amendments to provisions concerning the federal structure and to “the basic principles laid down in Articles 1 and 20 [on human rights and the “democratic and social” set-up].

The doctrine spared India a bill designed to give Indira Gandhi immunity against criminal prosecution. Moved in 1975 during the fraudulent emergency, it was swiftly dropped.

Where Pakistan is concerned, Prof Conrad states that in 1963 in Fazlul Quader Chowdry vs Mohammad Abdul Haque, the Pakistan Supreme Court introduced the expressions ‘fundamental’ or ‘essential features of the Constitution’, ‘fundamentals of the Constitution’ etc.

In the last 40 years the Supreme Court of India has identified what constitute the essential features of ‘the basic structure’. Among them are democracy, the rule of law, equality before the law, judicial review, federalism and secularism.

The writer is an author and a lawyer based in Mumbai.

Published in Dawn February 7th , 2015

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