Of late, there has been criticism of the Basic Structure Doctrine on two  major grounds, first, it was propounded for the first time by the Supreme Court in its judgment in Kesavananda Bharaticase (April,1973) and that too in a Bench of 13 judges by a narrow majority of 7:6,  second,  it’s never been debated since it was propounded.

But few do remember that immediately after the judgment in Kesavanda Bharati (1973), the Union of India, had filed an application in the same year for reviewing  the decision; and on November 10, 1975 again a bench of 13 judges was constituted by the order of the then CJI A N Ray for finding answers to, “Whether the power of amendment of the Constitution was restricted by the theory of basic structure and framework as propounded in the Kesavananda Bharati case (1973)”.

In the newly-constituted Bench of 13 judges including CJI A N Ray, there were eight new judges who were appointed since April 1973. On November 10, 1975, this new Bench assembled to hear detailed arguments for two successive days and subsequently after the Bench reassembled on the morning of November 12, 1975, Chief Justice Ray announced in open court, “This bench is dissolved!”

This has not been  reported in any of the law reports since there was no decision in this matter, which surprisingly finds place in the book titled ‘Constitutional Law of India ‘(Vol 2) 4th edition (1993) at page 1957, written by  India’s constitutional historian, HM Seervai as, “This sequence of events would suggest that Ray CJ realised, before 10 November 1975, that his brother judges were not likely to depart from the theory of the basic structure; and it would also suggest that the two days’ hearing before the bench of thirteen judges satisfied him that the doctrine of the basic structure would not be reconsidered by the present bench.”

Another apparently unrelated event occurred in the month of June 1975, which solidified the Basic Structure Doctrine propounded in the Kesavanada Bharati case as Prime minister Indira Gandhi, who was commanding a majority in Parliament, was unseated by the judgment of High Court of Allahabad after hearing an election petition. This led Prime Minister Indira Gandhi to file an appeal against the judgment in the Supreme Court. It was when her appeal was pending before the Supreme Court, the Constitution Thirty-Ninth Amendment Bill, 1975 — inserting Article 329A — was passed. Article 329A at clause-4 declaredthe election of PM Gandhi free from the clutches of all election laws, according to it, her election was valid and deemed to be valid “notwithstanding the judgement of any Court”.

What followed next was the Supreme Court of India (Bench presided by CJI Ray) resisted this piece of legislation. However, on November 7, 1975, Prime Minitser Gandhi’s election appeal in the Supreme Court was decided in her favour, on the merits of the election appeal. But the Constitution Bench held that Article 329A(4) was unconstitutional and void since it violated the basic structure of the Constitution and interestingly, the remaining clauses of Article 329(A) were repealed by the Constitution 44th Amendment Act, 1978). And this is how the foundation of the basic structure doctrine became more firm and robust. Which also means that Parliament has also endorsed the basic structure doctrine. Interestingly, the Parliament, by the Constitution 44th Amendment Act 1978, declared that Articles 20 and 21 of the Constitution are immune from suspension even during the proclamation of an Internal or External Emergency —as the said provisions are part of the basic feature of the Constitution.

Besides, a Constitution Bench of five judges in Minerva Mills vs Union of India (1980) and a Bench of nine judges in IR Coelho vs State of Tamil Nadu (2007)unanimously reaffirmed and endorsed the basic structure doctrine.

This reminds of the words of German constitutional expert Dietrich Conrad, “any amending body organised within a statutory scheme, howsoever unlimited its power, cannot by its very structure, change the fundamental pillars supporting its constitutional authority”. (Said while speaking at Banaras Hindu University in 1965)

Basic Structure doctrine has been put to test umpteen times by the Indian democracy and is still the best principle to have evolved in the domain of constitutional jurisprudence and has been quite elemental in keeping the fabrics of the nation strong and conducive for stability in governance and growth.

(The writer is Additional Central Government Standing Counsel, CAT, Cuttack Bench, Consulting Editor-Legal Affairs and Public Policy, The Pioneer, Bhubaneswar and a Distinguished Adjunct Professor of Law and Media Studies, School of Mass Communication, KIIT University. Views are personal)