Eight Cases That Will Test Whether 'Basic Structure Doctrine' Can Safeguard India's Democracy

3/17/22, 12:40 PM Eight Cases That Will Test Whether 'Basic Structure Doctrine' Can Safeguard India’s Democracy
Eight Cases That Will Test Whether 'Basic Structure Doctrine' Support Us
Can Safeguard India’s Democracy Login
ANALYSIS LAW
Eight Cases That Will Test

Whether 'Basic Structure
Doctrine' Can Safeguard India’s
Democracy
From the CAA, Kashmir's reorganisation and electoral bonds to EWS
reservation and recent laws for farmers and transgender persons, key
challenges to the government are pending before the Supreme Court.
The Supreme Court of India, India's constitution and posters opposing the CAA. Photo: Reuters, spicetruck (Nari)/Flickr CC BY SA
2.0 Illustration: The Wire
https://thewire.in/law/eight-cases-that-will-test-whether-basic-structure-doctrine-can-safeguard-indias-democracy 1/19
V. Venkatesan
LAW RIGHTS 20/OCT/2020
From the Citizenship (Amendment) Act (CAA) to the latest

farm laws, there has been an explosion in public interest
litigation before the Supreme Court questioning the
constitutional validity of recent legislation. One common
challenge among many of the pending petitions before the
Supreme Court is the allegation of violation of the ‘basic
structure doctrine’. In this six-part series, The Wire takes the
reader to different facets of the Kesavananda Bharati
judgment, which gave birth to the doctrine in 1973, to unravel
its significance in some of the crucial cases before the
Supreme Court.
The passing away of Kesavananda Bharati, the head of the

Edneer Mutt at Kasaragod in Kerala on September 6 briefly
revived our curiosity about the 1973 landmark case named
after him as the leading litigant. As the unwitting petitioner
whose legal battle gave rise to the basic structure doctrine
(BSD) – the notion that there are features of the constitution
which are unamendable by parliament under any
circumstances – Kesavananda’s legacy for India’s democracy
is undisputed.
The pending challenges in the Supreme Court against the

Eight Cases
validity of the Citizenship That Will Test Act
(Amendment) Whether 'Basic Structure
(CAA), 2019 Doctrine' Support Us
Can Safeguard
invoke several constitutional India’s Democracy
grounds, including the BSD. The Login
CAA’s passage triggered peaceful civil society protests which,
in turn, continue to be used by the state and its instruments to
harass and deprive activists of their liberty across the country.
Therefore, the outcome of the case in the Supreme Court has a
huge bearing on the future of India’s democracy. The case,
which is yet to be referred to a constitution bench, has been
tentatively listed for hearing on November 2.
The CAA is just one of the pending cases before the Supreme
Court which will test the BSD’s applicability. The
controversy surrounding the doctrine’s birth, and its
subsequent development as an interpretative tool, are facets
which are likely to determine its relevance in other pending
cases – some of which, like the CAA case, may turn out to be
landmarks in India’s constitutional history.
The CAA came into effect with the issuance of a notification

on January 10. As and when the Supreme Court begins
hearing the challenges to it, the state is likely to resist the
application of the BSD because no amendment of the
constitution is under challenge, and the doctrine, as the
Supreme Court has held in a few cases, is inapplicable to test
the validity of ordinary laws.
Yet, the few cases in which the Supreme Court had applied the
doctrine to find amendments, Acts, and executive action
unconstitutional turned out to be important. Even the many
cases where the Supreme Court used the doctrine to uphold
the validity of amendments, laws or specific interpretations of
constitutional provisions show that the doctrine is here to stay
and an invitation for potential petitioners in public interest
litigations to use it for additional legal support.
BSD’s relevance for challenging the CAA

Take the lead petition filed by the Indian Union Muslim

Eight Casesrefers
League (IUML). The petition That WilltoTest
theWhether
CAA’s'Basic Structure of
extension Doctrine' Support Us
Can Safeguard
the benefits of naturalisation India’s Democracy migrants
to undocumented Login
belonging only to the Hindu, Sikh, Buddhist, Jain, Parsi and
Christian faiths, coming from Afghanistan, Bangladesh and
Pakistan. The petition contends that the classification based on
the religious identity of the individual offends the
fundamental principle of secularism, which is enshrined as a
basic structure of the constitution.
To support its view, the petition relies on the Supreme Court’s

ruling in S.R. Bommai v Union of India (1994), delivered by a
nine-judge bench. The petition contends that as a basic
feature, secularism explicitly and implicitly prohibits the
establishment of a theocratic state and prevents the state from
identifying itself or favouring any particular religion or
religious sect or religions. The state is mandated to accord
equal treatment to all religions and religious sects and
denominations because secularism has been identified as a
basic feature of the constitution, the petition argues. As a
result, the concept of secularism pervades – is and embedded
in – the constitution’s philosophy, it says.
The petition filed by the National People’s Party, Assam

makes a similar plea on the ground that the CAA violates
Article 21 of the people of Assam by the likely massive influx
of undocumented immigrants it will generate. As a result of
the grant of citizenship to them, the indigenous people of
Assam will be reduced to a minority in their home state, their
cultural survival will be in jeopardy, their political control will
be weakened and their employment opportunities undermined,
the petition contends. The NPP’s petition argues that any
classification based on religion or place of birth is
impermissible in terms of Article 14.
Prasenjit Bose, in his petition, asks that if parliament cannot

abrogate secularism – Eight
evenCases That Will
through itsTest Whetherto'Basic
powers amendStructure
the Doctrine' Support Us
constitution – because Can Safeguard
it has India’s Democracy
consistently been declared a facet Login
of basic structure, how can a simple law achieve the same.
Women protesters at Jamia Millia Islamia during the anti-CAA and NRC
protests. Photo: Ismat Ara
Centre’s stand
Significantly, the Centre, in its counter-affidavit, has not

questioned the invocation of the basic structure doctrine in
this case. In particular, it has not argued that the doctrine is
applicable only while challenging constitutional amendments
and not ordinary laws. This has huge significance for the
manner the legal battle will play out in the court.
In its counter-affidavit, the Centre has submitted that the CAA

also results in not granting any kind of exceptions/exemptions
to Tibetan Buddhists from China and Tamil Hindus from Sri
Lanka. Therefore, the assertion that the CAA attempts to
classify persons belonging only to the Muslim community as
‘illegal migrants’ has no basis in law or fact, it has argued.

Turning the petitioner’sEight Cases That on
challenge Willits
Testhead,
Whetherthe
'Basic Structure Doctrine'
Centre Support Us
Can Safeguard
contends that the recognition India’s Democracy
of religious persecution in the Login
specific neighbouring countries, which have a state religion
and long history of religious persecution of minorities, is
actually a reinstatement of the Indian ideals of secularism,
equality and fraternity.
The Centre also denies that the CAA has, in any manner
whatsoever, made religion a basis of determining the
citizenship of a person. By protecting religious minorities in
non-secular countries within India’s neighbourhood, the CAA
reaffirms India’s faith and commitment to secularism, the
Centre says. The limited recognition of religious persecution
in a limited number of countries with a state religion neither
violates secularism nor falls foul of the arbitrariness clauses, it
contends. Foreigners belonging to the classified communities
from the three countries are being granted long-term Indian
visas as well as citizenship if they satisfy the conditions under
the visa regulations and the Citizenship Act, 1955, the Centre
has submitted.
The Centre maintains that merely because religion is the

starting point of any classification (and not the sole basis of
classification) would not imply that such a classification falls
foul of secularism. “Indian secularism is not irreligious, rather
it takes cognizance of all religions and promotes comity and
brotherhood between all,” the Centre has told the Supreme
Court. Across subjects, the Indian parliament and state
legislature have made classifications on the basis of religious
identities of Indian citizens as a starting point, the Centre
suggests. The Act merely prescribes qualifications for
citizenship based upon rational and reasonable classifications,
and does not grant carte-blanche citizenship to the classified
communities, the Centre has claimed.
The CAA does not classify or differentiate on the ground of

Eight Cases
religion, rather it classifies Thatground
on the Will Test Whether 'Basic Structure Doctrine'
of “religious Support Us
persecution” in countriesCan Safeguard
functioningIndia’swith
Democracy
a state religion; the Login
Act, therefore, does not violate the cherished principle of
secularism, the Centre has submitted. Rather than breaching
any principle of ‘freedom of religion’, the CAA seeks to
protect the ‘freedom of religion’ of the classified communities
who have been persecuted for exactly expressing and
practicing their respective religions in the particular
neighbouring countries, the Centre has argued.
Does the Centre’s silence on the applicability of the BSD to

challenge the validity of the CAA suggest that it accepts the
contention of the petitioners on this, even if it disagrees with
them on other grounds? Unlikely. The affidavit’s silence does
not prevent the Centre from opposing the BSD’s application to
the law during oral submissions.
Also Read: An Unconstitutional Act, a Disappointing SC

and a Misused Law: Justice A.P. Shah on India’s Ills
BSD invoked in other pending cases
1. Maratha reservation
The outcome of the challenges to the validity of CAA,

therefore, has huge implications for some of the other pending
cases. The petitioners in Mohammad Sayeed Noori v State of
Maharashtra, who are challenging reservation in jobs and
education for the Maratha community, have invoked the BSD.
In this case, they are challenging the Bombay high court’s
judgment upholding of the validity of the Maharashtra
Socially and Educationally Backward Classes Act, 2018.
The petitioners have argued in this case that the inclusion of a

forward community (such as Marathas) in the list of backward
classes violates the basic structure of the constitution, as held

in the Supreme Court’sEight Cases ThatinWillIndra
judgment Test Whether
Sawhney'BasicIIStructure
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“The principle of equality enshrinedIndia’s inDemocracy
Articles 14, 15, and 16 Login
is the basic structure of the constitution, and could not have
been taken away by legislative fiat,” they contend.
2. Reservation for EWS
In Youth for Equality v Union of India, the Constitution (103rd

Amendment) Act, 2019 is under challenge, on the ground that
it violates several basic features of the constitution. The
amendment inserts Article 15(6) and 16(6) in the constitution
to provide for special provisions/reservations for any
economically weaker sections of citizens, other than the
backward classes or SCs and STs.
The petition argues that the 50% ceiling limit of reservations

has been engrafted as part of the basic structure of the
constitution’s equality code. The exclusion of the
economically weaker sections of the OBC/SC/ST from the
scope of economic reservation is also described as a violation
of the equality code, and therefore, of the BSD.
Thrusting reservations on private and unaided institutions

obliterates the right guaranteed under Article 19(1)(g), a basic
feature, a petition filed by Reepak Kansal argues. Another
ground of challenge is that economic criteria cannot be the
sole basis for reservation.
In its reply affidavit, the Centre has argued that merely

affecting or impinging upon an article embodying a feature
that is part of the basic structure is not sufficient to declare an
amendment unconstitutional. To sustain a challenge against a
constitutional amendment, it must be shown that the very
identity of the constitution has been altered, it has submitted.
Listed by the lead petitioner in the case, Janhit Abhiyan v

Union of India has nowEight Casesreferred
been That Will Test
to aWhether 'Basic Structure Doctrine'
five-judge Support Us
Can referral
constitution bench. In its Safeguard order,
India’s Democracy
the three-judge bench Login
has concluded that the question of whether the amendment
violates the basic structure of the constitution by applying the
tests of ‘width’ and ‘identity’ with reference to equality
provisions of the constitution, is a matter which constitutes a
substantial question of law.
As compared to other BSD challenges, where ordinary laws

are sought to be tested for compliance with the BSD, in this
case, a constitution amendment will be tested, and its outcome
will be a key precedent for future challenges.
A view of the Supreme Court on November 1, 2018. Photo: PTI/Ravi

Choudhary
3. Challenges to the revocation of Jammu and Kashmir’s

special status
Following the withdrawal of the special status of Jammu and

Kashmir and its splitting into two Union territories on August
5 last year, several petitions were filed in the Supreme Court
challenging the Centre’s action.
In this case, the imposition of the President’s rule in J&K on

December 19, 2018, the Constitution (Application to Jammu
and Kashmir) Order 2019, Declaration under Article 370(3) of
the Constitution dated 6.8.19, and the Jammu and Kashmir

Reorganisation Act, 2019Eight are
Casesunder
That Will Test Whether 'Basic Structure Doctrine'
challenge. Support Us
In Dr Shah Faesal v Union of India, the petitioner argues that
the presidential proclamation dated December 19, 2018 is
unconstitutional to the extent that it suspends the proviso to
Article 3 of the constitution, which is a necessary safeguard
protecting federalism and democracy, the basic features of the
constitution.
Faesal contends that substituting the concurrence of the state

with concurrence by the governor under President’s rule, is a
violation of democracy. He submits that it is a basic feature of
the Indian constitution to be governed by participative
democracy, as has been held in R.C.Poudyal v Union of India
(1994) and In State (NCT of Delhi) v Union of India (2018).
In the 2018 decision, the Supreme Court held:
“After the evolution of the basic structure doctrine post

Kesavananda, the interpretation of the Constitution must
be guided by those fundamental tenets which constitute
the foundation and basic features of the document.
Where a provision of the Constitution is intended to
facilitate participatory governance, the interpretation
which the court places must enhance the values of
democracy and of republican form of Government which
are part of the basic features.”
According to Faesal, the federal relationship of each state with

the Centre is at a federal balance, which can be amended but
not damaged or destroyed, as part of the basic structure of the
constitution.
Also Read: Article 370: What the SC Will Have to

Consider While Examining the Centre’s Move
The senior counsel for the petitioner, Raju Ramachandran,

Eightthe
who is a known critic of Cases
BSD,That found
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useful'Basic Structure Doctrine'
to support Support Us
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the challenge. “The impugned India’sand
orders Democracy
the Act violate the Login
principles of federalism, democracy and the Rule of Law –
each of which forms part of the basic structure of the Indian
Constitution,” the petition reads.
Relying on the “implied limitation” theory of the six majority

judges in the Kesavananda case (the seventh Judge, H.R.
Khanna disagreed with it explicitly), Ramachandran argued
that federalism places an implied limitation upon the powers
of the president during president’s rule, namely, a limitation
upon the president’s power to change the status of the federal
unit itself.
In his essay in the edited volume, Supreme But Not Infallible,

Ramachandran was critical of the application of the doctrine
to ordinary Acts, rather than to only constitutional
amendments. In this case, however, he supports the challenge
to the validity of the Jammu and Kashmir Reorganization Act,
2019 on the ground that the series of actions culminating in
the Act is in violation of the right to autonomy of the state that
inheres in its residents under Part III of the constitution.
Therefore, he argued on behalf of Faesal, they are destructive
of the basic structure of the constitution as applied to the state
and are liable to be held to be void and inoperative under
Article 13.
Has the doctrine turned one of its serious critics as its

defender? The circumstances of the case may well suggest
that.
4. Electoral bonds case
The Finance Act of 2017 introduced the use of electoral bonds

which are exempt from disclosure under the Representation of
Peoples Act, 1951, opening the door to unchecked, unknown

Eight Cases That Will Test Whether 'Basic Structure Doctrine'
funding to political parties. Support Us
The Finance Act, 2016 also amended the Foreign Contribution
Regulation Act (FCRA), 2010 to allow foreign companies
with subsidiaries in India to fund political parties in India,
that too with retrospective effect, effectively exposing Indian
politics and democracy to international lobbyists who may
want to further their agenda.
The petitioners, the Association of Democratic Rights (ADR),

have challenged these amendments as being unconstitutional
and violative of the doctrines of separation of powers and the
citizen’s fundamental right to information – which are parts of
the basic structure of the constitution.
Relying on the Supreme Court’s decision in I.R.Coelho, the

petitioners claim that the BSD requires the state to justify the
degree of invasion of fundamental rights. The greater the
invasion into essential freedoms, the greater is the need for
justification and determination by the court as to whether an
invasion was necessary and if so to what extent, they contend.
Also Read: In Supreme Court, EC Criticises Modi Govt’s

Electoral Bonds and Foreign Funding Tweaks
5. Challenge to Nikah-Halala and other personal law cases
In Nafisa Khan v Union of India, the petitioners have prayed

for a declaration that polygamy and Nikah-Halala – the
practice in which a divorced woman can only remarry her
husband if she first remarries another man and consummates
her marriage – are illegal and unconstitutional for being
violative of Articles 14, 15, 21 and 25 of the Constitution.
They have challenged Section 2 of the Muslim Personal Law
Application Act, 1937 which seeks to recognise and validate
nikah halala and polygamy, as void and unconstitutional as

Eight Cases
such practices are not only That Will to
repugnant Testthe
Whether
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a Support Us
woman as an individual Canbut
Safeguard India’s Democracy
also violative of the fundamental Login
rights guaranteed under the constitution.
As the basic structure permeates the equality of status and

opportunity, any personal laws conferring an inferior status on
women is anathema to equality, they have argued.
In Yasmeen Zuber Ahmad Peerzade v Union of India, the

petitioner sought permission for Muslim women to enter a
mosque and offer their prayers, setting aside the alleged
fatwa/directions of imams as violative of the BSD.
6. Right of transgender persons
In Grace Banu v Union of India, the challenge is to the

validity of the Transgender Persons (Protection of Rights)
Act, 2019. The petitioners in this case are aggrieved that
several provisions of the Act violate the rights of transpersons
to self-determine one’s gender identity, which is an integral
part of one’s right to life, dignity and autonomy. The Act caps
the maximum penalty for sexual abuse committed against
transgender persons at two years’ imprisonment, whereas, for
similar offences committed against women under the Indian
Penal Code, it ranges between three years to life
imprisonment.
The petitioners have challenged this as an arbitrary distinction

in punishment, which is violative of Article 14 of the
constitution mandating equality before law and equal
protection of laws. The Act’s silence on classifying
transgender persons as socially and educationally backward
classes of citizens for the purpose of reservations has
disappointed the intended beneficiaries. Although the
petitioners have not invoked the BSD, it is clear that it may
come up during the hearing of the case.
Protesters raise slogans in Bengaluru against the passage of the transgender

Bill on November 27. Photo: PTI
7. Challenge to the farm Act
In T.N. Prathapan v Union of India, the petitioner, a Congress

member of the Lok Sabha, has challenged the constitutional
validity of the Farmers’ (Empowerment and Protection)
Agreement of Price Assurance and Farm Services Act, 2020.
The petitioner has submitted that the Act will spell disaster for
the farming community by opening a parallel market which is
unregulated and gives enough room for exploitation of the
farmers’ community by the concentration of power in the
hands of a few corporates/individuals, multinationals and
moneylenders. Some of its provisions are against the basic
structure of the constitution, and fundamental rights of the
farmers, he has alleged. In particular, he claims that the Act
forces the farmer to approach the “already overburdened
bureaucracy” for a remedy in case of a dispute instead of
getting an effective and permanent solution for the same in a
court of law.
Under Section 19 of the Act, no civil court has jurisdiction to

entertain any suit or proceedings in respect of any dispute
which a sub-divisional authority or the appellate authority is

empowered by the ActEight Cases That
to decide Willno
and Testinjunction
Whether 'Basicshall
Structure
be Doctrine' Support Us
granted by any court orCanother
Safeguard India’s Democracy
authority in respect of any action Login
taken or to be taken in pursuance of any power conferred by
or under this Act or any rules made thereunder. Such
exclusion of jurisdiction by the courts has always been
frowned upon as a violation of the principle of judicial
independence, which is a basic feature of the constitution.
The Act, he alleges, fails to establish farmer-centric courts

where the farmers can raise their grievances, similar to the
ones created to resolve grievances of labour workers,
consumers, and marital disputes.
The Act, the petitioner contends, denies respect for personal

identity, undermines autonomy over fundamental personal
choices, and damages plurality and diversity, besides being in
stark violation of the universal and basic human right to
dignity.
Also Read: What Will the Legal Challenge to the Modi

Government’s Farm Bills Look Like?
Another MP, Manoj Jha (RJD) also filed a petition in the

Supreme Court raising similar issues. Among other things, he
has alleged breaching the principle of federalism, as
agriculture is a state subject, and pitting the farmers against
big corporations, leaving them with low bargaining power. He
has also highlighted provisions which are discriminatory and
manifestly arbitrary.
Both Jha and DMK MP Tiruchi Siva have challenged this Act
as well as two other Acts, namely, the Farmers Produce Trade
and Commerce (Promotion and Facilitation) Act, 2020 and the
Essential Commodities (Amendment) Act. Like Jha, Siva too
has alleged violation of the principles of equality, federalism
and non-discrimination. He has also alleged non-compliance

with Articles 21 (RightEight Casesand
to life That liberty)
Will Test Whether
and 23 'Basic Structure Doctrine'
(prohibition Support Us
of forced labour). Can Safeguard India’s Democracy Login
In Part II: From Uncertainty to Gaining Respect, the Basic

Structure Doctrine’s Fascinating Journey From 1973
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3/17/22, 12:40 PM Eight Cases That Will Test Whether 'Basic Structure Doctrine' Can Safeguard India’s Democracy

Eight Cases That Will Test

LAW RIGHTS 20/OCT/2020

From the Citizenship (Amendment) Act (CAA) to the latest

The passing away of Kesavananda Bharati, the head of the

The pending challenges in the Supreme Court against the

The CAA came into effect with the issuance of a notification

BSD’s relevance for challenging the CAA

Take the lead petition filed by the Indian Union Muslim

To support its view, the petition relies on the Supreme Court’s

The petition filed by the National People’s Party, Assam

Prasenjit Bose, in his petition, asks that if parliament cannot

Significantly, the Centre, in its counter-affidavit, has not

In its counter-affidavit, the Centre has submitted that the CAA

‘illegal migrants’ has no basis in law or fact, it has argued.

The Centre maintains that merely because religion is the

The CAA does not classify or differentiate on the ground of

Does the Centre’s silence on the applicability of the BSD to

Also Read: An Unconstitutional Act, a Disappointing SC

BSD invoked in other pending cases

The outcome of the challenges to the validity of CAA,

The petitioners have argued in this case that the inclusion of a

classes violates the basic structure of the constitution, as held

2. Reservation for EWS

In Youth for Equality v Union of India, the Constitution (103rd

The petition argues that the 50% ceiling limit of reservations

Thrusting reservations on private and unaided institutions

In its reply affidavit, the Centre has argued that merely

Listed by the lead petitioner in the case, Janhit Abhiyan v

As compared to other BSD challenges, where ordinary laws

A view of the Supreme Court on November 1, 2018. Photo: PTI/Ravi

3. Challenges to the revocation of Jammu and Kashmir’s

Following the withdrawal of the special status of Jammu and

In this case, the imposition of the President’s rule in J&K on

the Constitution dated 6.8.19, and the Jammu and Kashmir

Faesal contends that substituting the concurrence of the state

In the 2018 decision, the Supreme Court held:

“After the evolution of the basic structure doctrine post

According to Faesal, the federal relationship of each state with

Also Read: Article 370: What the SC Will Have to

The senior counsel for the petitioner, Raju Ramachandran,

Relying on the “implied limitation” theory of the six majority

In his essay in the edited volume, Supreme But Not Infallible,

Has the doctrine turned one of its serious critics as its

4. Electoral bonds case

The Finance Act of 2017 introduced the use of electoral bonds

Peoples Act, 1951, opening the door to unchecked, unknown

The petitioners, the Association of Democratic Rights (ADR),

Relying on the Supreme Court’s decision in I.R.Coelho, the

Also Read: In Supreme Court, EC Criticises Modi Govt’s

5. Challenge to Nikah-Halala and other personal law cases

In Nafisa Khan v Union of India, the petitioners have prayed

nikah halala and polygamy, as void and unconstitutional as

As the basic structure permeates the equality of status and

In Yasmeen Zuber Ahmad Peerzade v Union of India, the

6. Right of transgender persons

In Grace Banu v Union of India, the challenge is to the

The petitioners have challenged this as an arbitrary distinction

Protesters raise slogans in Bengaluru against the passage of the transgender

7. Challenge to the farm Act

In T.N. Prathapan v Union of India, the petitioner, a Congress

Under Section 19 of the Act, no civil court has jurisdiction to