Should the Parliament codify the Basic Structure Doctrine?

Should the Parliament codify the Basic Structure Doctrine?

By Deval Gupta
3rd Year BBA LLB Jindal Global Law School
NO, in my opinion the parliament should not codify the basic structure doctrine. I will be elaborating on my answer in three parts; which will be [A] History of basic structure doctrine and why the codified version of basic structure doctrine would not be able to stand the test of judicial review. [B] Impact of basic structure doctrine on constitutional adjudication. [C] How status quo would be affected if basic structure doctrine is codified or not.
[A] History of basic structure doctrine and why the codified version of basic structure doctrine would not be able to stand the test of judicial review
Starting with a quick summary and timeline of how basic structure doctrine came into existence I would be citing the Indian cases and their ratios which are important in answering the broader question.
Shankari Prasad V. Union of India[1]: The Court held that the parliament has the power to amend the constitution including the fundamental rights through Article 368, also said that Article 13(3) does not include constitutional amendment.
Sajjan Singh V. State of Rajasthan[2]: In this case the Court upheld the decision given in Sharnkari Prasad and held that constitutional amendment is not law.
I.C. Golaknath V. State of Punjab[3]: The Court in this case overruled Shankri Prasad and Sajjan Singh and said that amendment will amount to law. Parliament had no power to pass any amendment that would take away any fundamental right. This was a setback to parliamentary sovereignty and limits were imposed on parliamentary power.
Now in 1971, The Indian National Congress (INC) won the general elections and made several constitutional amendments. With the 24th constitutional amendment the government added clause (4) to Article 13[4] so basically this clause has undone Golaknath [amendment ≠ law]. Also similar matching provisions were added in Article 368 clause (3)[5], so now legislative power became greater than Constitutional power which implied the Doctrine of Parliamentary Sovereignty.
Kesavananda Bharati vs. the State of Kerala[6]The Court held that Article 368 does not enable the parliament to alter the basic structure or framework of the constitution; the Court overruled Golaknath and said any part of the constitution may be amended by the procedure laid down in article 368 but no part may be amended as to alter the basic structure doctrine[7] 
Now the const
ituent power and legislative power hierarchy is restored, but limits are imposed through the innovative invocation of doctrine of basic structure. 24
th amendment was held valid but with the limitation of subject of basic structure.
A.G. Noorani[8] in his article states that the doctrine of any implied limitations on parliament’s power which was put forth by senior advocate M.K. Nambyar in the Golaknath’s case was owed to Professor Dietrich Conrad, though this argument was not accepted by the Court in Golaknath’s case, but eventually in Kesavananda Bharti’s case in 1973 Justice Khanna approved Prof. Conrad’s argument “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” as substantially correct.
With this finding and the case of Indira Gandhi V. Raj Narain where the government added the article 329-A with 39th amendment using its totalitarian power, the Court struck down the 39th amendment as unconstitutional as article 329-A violated the test of Judicial review and was inconsistent with basic structure doctrine as the court said elections were part of democracy; and democracy is in itself a part of basic structure. Also with the case of Minerva Mills V. Union of India where the court struck down the clause 4 and 5 of 42nd amendment as the clause’s were inserted to bar the courts to entertain any challenge on the question of validity of the constitutional amendments.[9]
It is clear that the Courts did not define an exhaustive list of basic structure as the Court knows how to create a balance between the three pillars; legislative, judiciary and the executive, because if the court had told what comes under basic structure then the legislatures could easily misuse their power.
Now if the parliament tries to codify the basic structure doctrine, it is obvious that it would come in scrutiny under the judicial review as the legislature would always codify the basic structure in their favour, thus when basic structure is codified it takes away the court’s power to limit the totalitarian acts of the parliament. Therefore basic structure doctrine should not be codified.
Now if we imagine a scenario where the legislature codifies the basic structure according to their will and in favour of the legislature (where there is a majority government in power) and in the article the legislatures adds a clause that the article of basic structure would not come under the ambit of judicial review, then the whole judicial power would be destroyed, the legislative power will emerge as the supreme which will tarnish the essence of Constitution of India. And the concept of constitutionalism would be ended.  
[B] Impact of basic structure doctrine on constitutional adjudication.
Adjudication is a process by which a judge comes to understand and express the meaning of an authoritative legal text and the values embodied in that text[10], the constitutional trajectory in India dotted with case like Golaknath, Kesavanada, Indira Gandhi election case, Minerva mills shows the struggle between the Supreme Court and the Parliament as Andhyarujina[11] comments in the context of Minerva Mills case, with the decision of Minerva Mills case Parliament‘s efforts to have an uncontrolled power of constitutional amendment and eliminate judicial review came to end. In that sense, the Supreme Court triumphed in the struggle for supremacy.
Thus we need to understand Court’s work here; the Court just interprets the values and meaning of the constitution. To strike a balance between judiciary and the legislature there has to be constitutionalism present in the country if not the state would fail as a democracy.
The impact of basic structure on constitutional adjudication has been huge, as from the time of origination of basic s
tructure in 1973, the major constitutional changes and challenges in the Supreme Court have revolved around the basic structure doctrine only, and the basic structure doctrine in a way gave the Court the power to limit the legislative power.
Also if basic structure doctrine is codified today and is un- amendable, then the court will lose its power to add something in future if the court thinks the feature should be included in basic structure. And basic structure list would limit to today only.  
[C] How status quo would be affected if basic structure doctrine is codified or not.
“As constitutionalism is an endangered achievement constitutional adjudication is in danger as well. Politicians, even if they originally agreed to establish judicial review, soon find out that its exercise by constitutional courts is often burdensome for them. Constitutions put politics under constraints and constitutional courts exist in order to enforce these constraints[12]”.
As in the recent times we have seen some of Narendra Modi government’s barbaric actions relating to the Constitution of India, for instance in 2015 when National Judicial Appointments Commission (NJAC)[13] was proposed through 99th amendment and through that Article 124-A was added, then the Constitutional Bench of Supreme Court through Judicial review upheld the Collegium system and struck down NJAC.
This is one of the examples where the balance between the judiciary and legislature was carved out, but again if codified basic structure doctrine would have been existed at that time, then simply to have an upper hand Modi’s government would have put NJAC into the basic structure list and thus making NJAC out of judicial review for the Court.
Thus the constitutional courts try to put a constraint to restrict the huge power (power of making first hand laws) that the legislatures have, and in order to maintain the hierarchy between the legislature, judiciary and the executive the basic structure doctrine should not be codified, and it should remain in the ambit of Courts for further interpretations.  

[1] Shankari Prasad V. Union of India, (1951)  AIR 458

[2] Sajjan Singh V. State of Rajasthan (1964) AIR 464

[3] I.C. Golaknath V. State of Punjab (1967) AIR 1643

[4] Constitution of India Article 13, clause 4

[5] Constitution of India Article 368, clause 3

[6] Kesavananda Bharati vs. The State of Kerala (1973) 4 SCC 225

[7] A.G. Noorani, Behind the basic structure doctrine (2001)

[8] Id

[9]  Hemant Varshney, Law Times Journal (2018)

[10] Rabindra Kr. Pathak, Constitutional Adjudication in India: A Study with Special Reference to Basic Structure Doctrine, 2-3 (2013),%20ph.d.%20thesis.pdf

[11] Id at 7-8

[12] Dieter Grimm, Constitutional Adjudication and Constitutional Interpretation: between Law and Politics, 18-19 (2011)

[13] Krishnadas Rajagopal, SC Bench strikes down NJAC Act as ‘unconstitutional and void’, The HINDU (MAY 23, 2016 18:45 IST)
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