Basic Sturcture Doctrine and the Possibility

of Simultaneous Elections

By Prathik Karthikeyan

This paper aims to examine the interaction of the Basic Structure Doctrine in the constitution

and its interaction with a recent proposal to switch back to the old format of having

simultaneous elections. The paper will first delve into the nature of the constitution and how

the basic structure doctrine would apply to the election process.

A Constitution needs to be a living Constitution1 to endure the tides of time and adapt to the

changing requirements of generations. However, at the same time, there are some intrinsic

values, a basic framework on which the whole content of the constitution rests. This

framework originalism2 is the very essence of the legal system which the constitution

document embodies and which the courts try to protect through their various doctrines and

pronouncements. It would be an entirely separate matter if the volksgeist demands a new

structure by demolishing the old one and would require a separate procedure for that. Until

then, certain essential characteristics which hold up a nation together in a determined form,

need to protect from any encroachment that is premature and does not reflect the true will of

the collective.

1
David A. Strauss, “Do we have a Living Constitution”59 Drake L. Rev. 973 (2011).
2
Jack M. Balkin, “Framework Originalism and the Living Constitution” 103 North-western. Univ. Law Rev.
550 (2009).

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Basic structure doctrine, evolved by the Indian Supreme Court, through its numerous

landmark judgments over the years, brings in that required factor of constitutionalism, which

is critical to the upkeep of the spirit of the constitution document, to preserve, protect and

maintain the thicker concept of rule of law3 without which the constitution is but a dead letter

law. The journey of the evolution of this doctrine from the theory of implied limitations4 to

its current form today has been nothing short of tumultuous, with attempts to save it and even

greater attempts to obliterate it because this doctrine singlehandedly empowers the judiciary

to keep a check on the legislature and restrain it from stepping into the treacherous realm of

arbitrariness by misusing article 368 of the Indian Constitution. This paper will attempt to

highlight the origins, vicissitudes that the doctrine of basic structure had to endure and

discuss about its limitations.

The roots of the Basic Structure Doctrine can be traced to In Golakhnath v. State of Punjab5

the doctrine of implied limitations was brought forth by M.K. Nambiar, a constitutional

lawyer, but was not accepted by the Supreme Court which took it’s inspiration from the

German Jurist Dietrich Conrad that explicitly barred amendments to the provisions

concerning the federal structure and the basic principles laid down in article 1 to 20, This

German connection was acknowledged by the Supreme Court in M Nagaraj v. Union of

India6.

In the Indian context the doctrine of implied limitations or as it is known in India the Basic

Structure Doctrine was discussed extensively in the Kesavananda Bharati7 case where the

3
Brian Z. Tamanaha, “On the Rule of Law, History, Politics, Theory” 32 Journal of Law and Society 657
(2005).
4
Upendra Baxi, “Some Reflections on the Nature of Constituent Power” in Rajeev Dhavan and Alice Jacob
(eds.), Indian Constitution Trends and Issues122 (1978).
5
(1967) 2 SCR 762
6
(2006) 8 SCC 12. The Supreme Court said: The concept of a basic structure giving coherence and durability to
a Constitution has a certain intrinsic force. This doctrine has essentially developed from the German
Constitution
7
(1973) 4 SCC 225

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constitutionality of the 24th, 25th and the 29th amendments to the Constitution had a

relationship altering effect between the Parliament and the judiciary. The petitioner in this

case contented that there were certain basic freedoms meant to be permanent and that there

were other basic features besides fundamental rights like sovereignty and integrity of India,

right to vote and elect representatives, independence of judiciary et cetera, and that the power

of the Parliament to amend the Constitution under article 368 is limited with implied

limitations on it. The respondents claimed an unlimited power for the amending body and

short of total abrogation or repeal of the Constitution the amending body was omnipotent

under article 368, and the Constitution could be amended by way of variation, addition or

repeal so long as no vacuum left in the governance of the country8.

The special bench consisting of 13 judges gave 7:6 verdict based on shared arguments of

eleven judgments. Validity of the 24th amendment was upheld unanimously, however the

scope of the amending power was something which was not unanimously agreed upon. S.M.

Sikri, Shelat, Grover, Hegde, Mukerjee and Jagan Mohan Reddy JJ, supported the inherent

limitations and held that the amending power could not be used to emasculate the basic

structure of the constitution and the fundamental rights. M.H. Beg, D.G. Palekar, A.N. Ray,

K.K. Mathew and Y.V. Chandrachud, JJ, held that the amending power under article 368 was

unrestricted and could be used to amend any basic feature including the fundamental rights.

Khanna J felt that the amending power should not be used to alter the basic structure of the

Constitution but declared that the fundamental rights including the right to property were not

the basic features and therefore could be amended. The judgment of Khanna J was the

decisive one and titled the majority in favour of declaration of the basic structure of the

Constitution by a slim majority of 7:69. in Indira Gandhi v. Raj Narain10 also known as the

8
A. Lakshminath, Basic Structure and Constitutional Amendments – Limitations and Justiciability
9
Supra
10
1975 Supp SCC 1

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Elections case, two years later, Khanna, J “clarified” his judgment in the Kesavananda

Bharati case. He now said that he had given clear indications in his judgment that

fundamental rights were part of the basic structure.

The question this paper will now explore whether holding Simultaneous Elections would alter

the Basic Structure Doctrine of the Indian Constitution and whether it infringes on the

process of elections. The term “simultaneous elections‟ is taken to mean elections to the

House of the People and the State Assemblies only11. In the backdrop of the existing

provisions in the constitution, it is not possible to conduct simultaneous elections. The

exercise will require extensive amendments to articles 83, 174 and 356 of the Indian

Constitution.12. Due to The Indian polity is perennially in elections. Barring a few exceptional

years within a normal 5-year tenure of the Lok Sabha, the country witnesses, on an average,

elections to about 5-7 State Assemblies every year13.As a result, a serious need to evolve a

mechanism to end this frequent election cycles has been expressed by various stakeholders

since quite some time now. The idea of undertaking simultaneous elections is being seriously

considered as a potential solution to the above problem. Several prominent political leaders

have also consistently voiced their support for the above idea at various forums. Some expert

committees have also examined this issue in the past like the Law Commission of India14 and

the Department related Parliamentary Standing committee on Personnel, Public grievances,

Law and justice in its 79th report15 had also examined the feasibility of holding simultaneous

elections.

11
Law Commission of India 30th of August
12
Article 356, The Constitution of India, 1950
13
Analysis of Simultaneous Elections published by NITI Aayog written by Bibek Debroy and Kishore Desai
14
1999, the Law Commission of India headed by Hon'ble Justice B.P. Jeevan Reddy in its One Hundred
Seventieth Report on Reform of Electoral Laws
15
Parliamentary Standing committee on Personnel, Public grievances, Law and justice in its 79th report
submitted to the Parliament in December 2015.

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The reason simultaneous elections were considered because frequent elections lead to

disruption of normal public life and impact the functioning of essential services16. According

to a study undertaken by Mr Csaba Nikolenyi, a Montreal-based professor at Concordia

University studying Indian elections, used basic formulae to calculate voter motivation

among others, and drew the conclusion that separate elections in India were preventing more

people from participating in the democratic process. After comparing voter turnouts in Indian

state and national elections held concurrently and separately with this and other formulae,

Nikolenyi drew the hypothesis that voter turnout in national elections will be higher in those

states where state elections are also conducted at the same time17.

However, there is a larger concern that simultaneous elections the ruling party would tend to

turn autocratic and will dramatically shrink the choice of the electorate. It is canvassed that it

will be an advantage to the national parties over regional or local parties and national issues

might eclipse the local ones18. Furthermore, there is no country in the world as big and

diverse as India that has managed to hold and sustain simultaneous elections to Federal and

Provincial Legislatures. South Africa and Sweden still hold simultaneous elections to national

and provincial legislatures19 however the additional consideration needs to be taken that the

electoral system in these countries is based on party-list proportional representation. we

cannot expect such political stability in a country like India and it will not be possible to

provide for all the situations and eventualities and still protect the spirit of democracy. The

very idea of simultaneous elections undermines the parliamentary system itself. It is not

feasible to conduct simultaneous elections in Westminster model for long term. One of the

16
Parliamentary Standing committee on Personnel, Public grievances, Law 79 th Report
17
One nation, one election: Why Modi govt wants to go for simultaneous polls; Response Paper and
Recommendation for Simultaneous elections
18
Simultaneous elections in India by Alok Prasanna Kumar on First post
19
Department-Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and
Justice, Seventy-Ninth Report, Feasibility of Holding Simultaneous Elections to the House of People (Lok
Sabha) and State Legislative Assemblies, (2015

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basic features of the parliamentary system is that it offers the prerogative of dissolution of

legislature to the executive, which will end if the term of the central and state legislatures is

fixed through amendment of the constitution. The introduction of Simultaneous elections to

the central and the state legislature will make article 356 a rule rather than an exception. It

would be against the wishes of our constitutional forefathers. B.R. Ambedkar, chairman of

Drafting Committee of the Constitution, discussed in reference to article 356, “Such Articles

will never be called into operation and they would remain a dead letter”.20

The first elections to the Lok Sabha and all State Legislative Assemblies were held

simultaneously in 1951-52. The practice continued in the next three elections held after that

till 1967 but got disrupted post 1967 due to premature dissolution of some Legislative

Assemblies. Thereafter, due to political instability across various states and the Lok Sabha, it

became impossible to hold simultaneous elections21.The circling back to simultaneous

elections once historical circumstances have proven that holding simultaneous elections are

not feasible would be not accounting for the changes that were made.

Article 83(2) of the Indian Constitution provides that the House of the people shall continue

for five years form the date of its first meeting22.A similar provision under article 172(1)

provides for five-year tenure from the date of its first meeting for the state governments. For

the government to conduct Simultaneous elections, tenure of the State Legislative assemblies

must be either curtailed or extended which is not provided under the current provisions in

normal circumstances. Article 85(2)(b) of the Indian Constitution grants the power to

dissolve the Lok Sabha to the president23.A similar provision for dissolution of state

20
Ambedkar, B. R. (1949), Constituent Assembly Debates, vol. IX, no. 5, p. 177(4 August, 1949).
21
Department-Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and
Justice, Seventy-Ninth Report, Feasibility of Holding Simultaneous Elections to the House of People (Lok
Sabha) and State Legislative Assemblies, (2015)
22
Article 83, The Constitution of India, 1950
23
Article 85(b), The Constitution of India, 1950

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legislative assemblies by the governor is mentioned under Article 174 (2)(b). In the backdrop

of the existing provisions in the constitution, it is not possible to conduct simultaneous

elections. The exercise will require extensive amendments to articles 83, 174 and 356 of the

Indian Constitution.24

So how do the concepts of elections and basic structure of the constitution interact, The

Supreme Court of Pakistan, in Fazlul Quader Chowdhry & Ors. v. Muhammad Abdul

Haque25, while considering a Presidential Order under Article 224 of the Constitution dealing

with elections, observed: “The aspect of the franchise, and of the form of Government are

fundamental features of a Constitution, and to alter them, in order to placate or secure the

support of a few persons, would appear to be equivalent not to bringing the given

Constitution into force, but to bringing into effect an altered or different Constitution.” In the

Indian Context the Supreme Court, in Sajjan Singh v. State of Rajasthan observed that the

Constitution “formulated a solemn and dignified preamble which appears to be an epitome of

the basic features of the Constitution. Can it not be said that these are indicia of the intention

of the Constituent Assembly to give a permanency to the basic features of the Constitution?26.

However, in the same breadth The Supreme Court has held that “it is a well-settled principle

in Indian Law, that the right to vote and contest elections does not have the status of

fundamental rights. Instead, they are legal rights”27 and “the right to vote and the right to

contest election are not fundamental rights. These are the rights germinating from the

Constitution, and are, therefore, constitutional rights, given further shape by the

Representation of People Act, 1951, thereby also making them statutory rights. The foregoing

discussion leads to the further conclusion that given their placement in the Constitutional

24
Article 356, The Constitution of India, 1950
25
Fazlul Quader Chowdhry & Ors. v. Muhammad Abdul Haque PLD 1963 SC 486
26
Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845
27
K. Krishna Murthy (Dr.) & Ors. v. Union of India & Anr., (2010) 7 SCC 202

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scheme and their objects and purposes, these rights are not included in the basic structure‟ of

the Constitution”28.

So it becomes extremely difficult to conclude whether or not simultaneous elections would

indeed infringe upon the Basic Structure of the Constitution because voting in elections and

contesting them are settled legal rights but the democratic process itself is part of the basic

structure, the conclusion we can safely reach is that without a better check and balance

mechanism on the electoral process and the ability of the central government to cement

control over the state governments as well as better instruments available to the general

public for making more informed democratic decisions or an alteration in the first past the

poll system such an immensely large upheaval like changing the entire process of elections

and making them simultaneous would have immediate ramifications and far reaching

unforeseeable issues and would be unwise to have at such a critical juncture.

28
Law Commission of India 2018

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