Jurists Debate View That Ordinary Laws Can't Be Challenged For Violation Of Basic Structure Of Constitution

At a panel discussion held during the launch of former Supreme Court judge Justice Rohinton Fali Nariman's new book on the Basic Structure Doctrine, Senior Advocates Kapil Sibal, Dr. Abhishek Manu Singhvi, and Arvind Datar raised concerns about the basic structure of the Constitution being violated through ordinary legislation.

While the Supreme Court has held that constitutional amendments can be struck down if they violate the basic structure, the panelists pointed out that laws enacted by Parliament in its ordinary legislative capacity are not being tested on that ground. Recently, the Supreme Court (Anjum Kadari vs Union of India) reiterated that an ordinary statute cannot be struck down on the ground of violation of basic structure of the Constitution, unless the violation of any specific fundamental right is established.

Senior Advocate Kapil Sibal said that this results in a scenario where the same law, had it been passed as constitutional amendment, would be struck down for violating the basic structure, but would not get struck down if passed as an ordinary statute.

“If you had the same law passed through a constitutional amendment, it will be struck down as it will be violating our basic structure, but the ordinary legislation which is contrary to basic structure is upheld by court”, he said.

Sibal asserted that the basic structure doctrine is now well-established and cannot be undone. He referred to Article 359 of the Constitution, which states that even during a national emergency, Articles 20 and 21 will continue to apply. Sibal said that the Constitution itself contains limitations on power and that the basic structure doctrine stems from that idea.

Sibal said the main challenge today is that ordinary laws are being enacted which violate the basic structure of the Constitution. He stated:

“You don't need to violate basic structure by changing the principles of basic structure. You can violate basic structure by bringing in ordinary law which is contrary to the basic structure of the Constitution. If you have laws which are contrary to the basic structure, you can't challenge them on grounds of basic structure. But you can violate basic structure on a daily basis, and that's what's happening in this country.”

Sibal added that the Constitution includes “inherent inhibition in the exercise of absolute power” and that the basic structure theory essentially formalised this existing restraint. He said even if the Supreme Court had not recognised the doctrine, the courts would eventually have held that there are inherent limitations on the exercise of power.

“But outside the Constitution, they already are violating the basic structure. You see that they are violating federalism. They are violating the secular fabric of this country through existing legislation. Now you can't challenge those legislations on the ground that it violates the basic structure. You have to have them struck down by virtue of Article 13 because they violate Part 3 of the Constitution that the courts are not willing to do. So the result is that despite the fact that the basic structure doctrine has not gone away yet, the fact is that it is being violated on a daily basis through existing legislations where the courts are not striking them down. And that's my greatest worry.”

Sibal gave a hypothetical scenario where a constitutional amendment protects monuments of a particular community—it would be struck down as violating basic structure. But an ordinary law allowing such demolition might survive, despite being contrary to the same values. He said, “There's a real problem that I think our country is going to face in time.”

Senior Advocate Dr. Abhishek Manu Singhvi emphasised that the basic structure doctrine is a recognition that “power corrupts and absolute power corrupts absolutely.” He said that Constitutions are meant to protect against majoritarianism and that basic structure ensures that all exercises of power remain within constitutional limits.

On the legal question of whether ordinary laws can be tested against the basic structure, Singhvi said the matter needs to be revisited by a larger bench. He discussed how Justice Mathew's observations in Indira Gandhi v. Raj Narain have been interpreted to say that only constitutional amendments can be tested against the basic structure. Singhvi said this understanding has been followed in later judgments, but those were based on a misreading of Mathew's comments.

“This is an important legal issue, which some Constitution bench or 7 judge or 9 judge bench should decide. There appears to be a line of thinking that ordinary laws cannot be struck down on the ground of basic structure. Only constitutional amendments can be struck down. It is taken supposedly from some words of Justice Mathew in Indira Gandhi v. Raj Narain. Justice Mathew's words are probably seen out of context, been followed unfortunately in other judgments including Kuldeep Nayar and Anjum Kadri, etc. The result is that a very large mass of things which can actually destroy very many aspects of the basic structure are unchallengeable unless they are unconstitutional. This area must be legally revisited”, he said.

Senior Advocate Arvind Datar described it as a paradox that constitutional amendments can be struck down for violating basic structure, but ordinary laws cannot.

He referred to Justice Beg's opinion in State of Karnataka v. Union of India, where the possibility of striking down an ordinary law for violating the basic structure was acknowledged. He added, “Justice Mathew's observation is more like an obiter. There is no plus and minus, he simply says it can't be [done]. Why not, nobody knows.”

Justice Nariman added his comments as follows : Basic Structure is not an extra-terrestrial concept. It lies in the actual wording of the Constitution. So, if you wish to challenge an ordinary legislation, look at the ordinary wordings of any Article. Don't call it basic structure.  If it offends any Article, then it will be struck  down for violating the Constitution. There are many Articles which may pertain to Basic Structure or may not pertain to Basic Structure. But every single Article is above ordinary law. So if you test it against any Article of the Constitution, whether part of Basic Structure or not, and if it falls foul of that Article, the law will fail.

Also from the event - If Basic Structure Doctrine Ever Goes, Then God Help This Country : Justice Nariman

Certain Fundamental Rights Are Beyond Majority's Hands, Can't Be Taken Away Even In Referendum : Justice KV Viswanathan

The event can be watched here.