basic structure doctrine – the myLaw.net blog

India’s constitution, crafted to serve as a roadmap for a nascent democracy, was born at a time when the horrors of the Second World War and the accompanying Jewish holocaust had given way to the drab and earnest socialism of post-war Britain’s labour government. The horrors of the Stalinist gulags were yet to be revealed and the socialistic belief that a man could, by society and by law, be compelled to love his neighbour, was yet to be shattered by Thatcherism. India itself had emerged bisected along communal lines, but was home to a huge population of minorities that had rejected the two-nation theory. Violence during Partition had cost more than a million lives. In an uncertain hour was born that tryst with destiny, and it needed an assembly of wise men to craft a constitution for a new republic where secularism and socialism were woven into the constitutional fabric.

On November 26, 1949, the Constituent Assembly, after nearly two years of labour, built over the skeletal framework of the Government of India Act of 1935. It was fleshed out with fundamental rights, directive principles, and other provisions to produce a living and breathing constitution, among the world’s longest. The document now needed a face – a mission statement to tell posterity about the kind of republic into which the constitution makers hoped the nation would evolve to.

The original Preamble read:

When we carefully read and do not merely scan it, it is apparent that the Preamble makes no reference to God. Unlike the United States, which pledged to make “one nation under God”, the Constituent Assembly “solemnly affirmed” its resolve without seeking the munificence of any deity or supernatural power of any denomination. A solemn affirmation of the people’s resolve was sufficient to assure to its all its citizens “social, economic and political JUSTICE and EQUALITY of status and of opportunity”. A reader may well recognise in these phrases, a nascent republic intent on socialism. When the preamble further promised “LIBERTY, of thought, expression, belief, faith and worship”, it provided for the atheist, theist, and the agnostic alike. Secularism as a guiding principle was writ large.

In the Constituent Assembly, on November 15, 1949, B.R. Ambedkar, while replying to an amendment, said,

“Sir,…If you state in the Constitution that the social organisation of the State shall take a particular form, you are, in my judgment, taking away the liberty of the people to decide what should be the social organisation in which they wish to live. It is perfectly possible today, for the majority people to hold that the socialist organisation of society is better than the capitalist organisation of society. But it would be perfectly possible for thinking people to devise some other form of social organisation which might be better than the socialist organisation of today or of tomorrow. I do not see therefore why the Constitution should tie down the people to live in a particular form and not leave it to the people themselves to decide it for themselves. This is one reason why the amendment should be opposed.

The second reason is that the amendment is purely superfluous. My Honourable friend, Prof. Shah, does not seem to have taken into account the fact that apart from the Fundamental Rights, which we have embodied in the Constitution, we have also introduced other sections which deal with directive principles of state policy. If my honourable friend were to read the Articles contained in Part IV, he will find that both the Legislature as well as the Executive have been placed by this Constitution under certain definite obligations as to the form of their policy. Now, to read only Article 31, which deals with this matter: It says:

“The State shall, in particular, direct its policy towards securing –

(i) that the citizens, men and women equally, have the right to an adequate means of livelihood;

(ii) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;

(iii) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;

(iv) that there is equal pay for equal work for both men and women;….”

There are some other items more or less in the same strain. What I would like to ask Professor Shah is this: If these directive principles to which I have drawn attention are not socialistic in their direction and in their content, I fail to understand what more socialism can be…”

It is thus certain that Ambedkar, while discussing the economic philosophy of the Constitution, felt that what was already implicit in the constitution, need not be reiterated. He took it for granted that the body of the constitution already had its guiding principles, including socialism and secularism, woven into the fabric.

It is wrong to think that it was only with the Forty-Second Amendment, which inserted the words “socialist” and “secular” into the Preamble, that these alien concepts were brought into the Constitution. The amendment only made explicit in the preamble that which was already implicit in the body. The sovereign democratic republic of India of November 26, 1949, did not on January 3, 1977, during the Emergency, morph into a secular socialist republic. Even today, merely because some government advertisements have chosen to stick to the original version of 1949, the Preamble and the Constitution have not ceased to be secular or socialist. Nor will the Constitution itself cease to be secular or socialist even if by an amendment these words are dropped again at a later date. Secularism and socialism are woven into the constitutional fabric and any effort to eradicate these principles will fall afoul of the basic structure doctrine, which is used to invalidate constitutional amendments.

Shanti Bhushan (left) with Prashant Bhushan and Atal Behari Vajpayee in 1984. Photo courtesy: Kartik Seth, an advocate practising at the Supreme Court of India.

After the Emergency, the Forty-fourth Amendment passed by the Janata government undid most of the damage of the Forty-second Amendment. Even this amendment however, chose to preserve the addition of secular and socialist to the Preamble. Shanti Bhushan was the Union Law Minister who piloted the amendment and among his colleagues in the Cabinet were L.K. Advani and A.B. Vajpayee.

Their inheritors today cannot presume to forget constitutional history. They cannot assume that constitutional values are just meaningless words to be redacted from a mere book. Secularism and socialism are inherent in the basic structure of the national book, and are beyond the power of transient parliamentary majorities to efface or abridge. “Insaan ko insaan se ho bhaichara” is inherent in the secular and socialist framework of rights and directive principles, which have given meaning to the Constitution all these years.

Sanjay Hegde is an advocate practicing at the Supreme Court of India.

Supreme Court’s pragmatic approach shields right to education amendments from basic structure challenge

In an important judgment this week, the Supreme Court upheld Articles 15(5) and 21A of the Constitution of India against a basic structure challenge.

In Ashoka Kumar Thakur (2008), a Constitution Bench had upheld the validity of Article 15(5), save for its application to private un-aided educational institutions. That question had been left open for another day, and was finally answered this week. Alongside it was the question of whether Article 21A, which guarantees the right to a free and compulsory education between the ages of six and fourteen, is consistent with the basic structure.

It is trite knowledge that Kesavananda Bharati v. State of Kerala established the proposition that Parliament, in the exercise of its amending power, cannot “damage or destroy” the Constitution’s basic structure. Over the years, basic features of the Constitution have been identified in the language of abstract principle: separation of powers, the rule of law, a democratic and republican form of government, secularism, judicial review, and so on. In this case, the petitioners made a novel claim: Article 19(1)(g), which guarantees the freedom of occupation, was a basic feature, and that Article 15(5) eliminated it entirely. It was argued in addition that by “treating equals unequally”, there was an Article 14 violation as well.

If you find something odd about these claims, you’re right. Typically, Articles 14 and 19(1)(g) are invoked to challenge the constitutionality of a law. Here, however, it is not a law that is at stake. A Constitutional right itself is being attacked for violating other constitutional rights. Thus, we have the odd argument that some constitutional provisions stand in a hierarchical relationship above others. This cannot be right. It is precisely to avoid this manner of claim that the Supreme Court, over the years, has steadfastly refused to locate the basic structure in any one provision, but has understood it to embody abstract principles that underlie and justify concrete provisions.

Admittedly, some provisions are integral to the basic structure. Undoubtedly, if Parliament simply repealed Article 14, thus removing the anchor for the principles of “equality before law” and “rule of law”, a basic structure challenge would be sustained. Arguably – although more controversially – eliminating Article 19(1)(g) from the Constitution altogether would violate the basic structure. Article 15(5), however, does nothing of the sort. It just carves out a fairly narrowly drawn exception to Article 19(1)(g): that the Article will not apply only to the special provisions aimed at advancing socially and educationally backward classes. This language is familiar to us from Article 16(4), and leaves ample scope for judicial review, as is evidenced from sixty years of affirmative action jurisprudence, which has placed substantial limits both on the government’s identification of beneficiaries, as well as the extent to which reservation is permitted. Admittedly, it goes against a strictly formalistic, colour-blind vision of equality, but so do all reservation provisions under the Constitution – Articles 15(4), 16(4), 16(4A) and 16(4B).

These were precisely the arguments that the Court used to reject the basic structure challenge. Article 15(5), insofar as it sought to equalise the educational opportunities of members of socially and educationally backward classes, did not destroy equality. Rather, it adopted a group-and-context sensitive vision of equality that took into account historic and continuing structural subordination in determining present allocation of resources. As the Court has held before, the Constitution holds both these visions of equality in balance. Therefore, it also clarified – correctly, in my opinion – that Article 15(5) would not prevent it from reviewing laws on the touchstone of Articles 14 and 19(1)(g). Article 19(1)(g), for instance, would continue to apply if the government failed to demonstrate that the requirements of Article 15(5) were satisfied. Article 14 would continue to apply in all cases. For example, if the government imposed an 80% reservation requirement on private schools, it is likely that the Court would not find it to fall within Article 15(5) at all, and almost certain that it would strike it down under Article 14.

In challenging Article 21A, the petitioners made another curious argument.

The Right of Children to Free and Compulsory Education Act, 2009, (“RTE Act”) as is well known by now, requires private, un-aided schools to accept 25% of their total admitted students from underprivileged backgrounds. The petitioners used this to argue that because Article 21A imposed constitutional obligations upon private parties, it violated the basic structure. Naturally, the Court gave short shrift to this argument. Article 21A does nothing of the sort. It provides a right to education that is enforceable against the State. Under the RTE Act, the State carries out its obligations by imposing certain regulations of admissions upon private schools. While that might raise constitutional questions about the Act, it does not, in any way, affect Article 21A itself.

Of course, the constitutional validity of the RTE Act – including the 25% requirement – was challenged, and upheld, in Society for Un-Aided Private Schools of Rajasthan v. Union of India. After having upheld the validity of Article 21A then, the Court needed to go no further. It clarified, however, that while Article 21A vested in the State the power to make law to discharge its educational obligations, the scope of that Article – and consequently, the scope of the power it conferred upon the State – would still be interpreted harmoniously with Articles 19(1)(g) and 30. Consequently, a law made under Article 21A would continue to be tested for reasonableness under Articles 19 and 30. Notice how this analysis mirrors the Court’s analysis of Article 15(5), and leaves it with maximum judicial wiggle room to examine laws as and when they are made.

Harmoniously construing Articles 21A and 30(1), the Court held that the minority institutions’ right to preserve their character necessitated excluding the applicability of the RTE Act to those institutions. It also found that Article 21A provided a basis separate from Article 19(6), for justifying the 25% seat reservation. This, I would suggest was unnecessary. It would have been doctrinally more satisfactory to use Article 21A – as the Supreme Court did in Society for Un-Aided Private Schools – to adjudicate upon the reasonable restriction that the RTE Act placed upon private schools, and uphold it on that basis. The Supreme Court’s opinion, however, implies that we now have two separate bases for restricting Article 19(1)(g) rights: 19(6) and 21A, and it is entirely unclear how these two relate to each other.

Ultimately, the opinion is characterised by pragmatism. The Court maintains its time-honoured tradition of judicial avoidance when it comes to basic structure claims. At the same time, it leaves its hands untied to scrutinise legislation passed under the two amendments on the touchstone of existing constitutional rights, as and when it might come to court.

(Gautam Bhatia blogs at Indian Constitutional Law and Philosophy.)