Explained: Basic Structure Doctrine That MP Ranjan Gogoi Opposed In RS But Had Supported As CJI

Gogoi said the basic structure doctrine, which limits Parliament's power to amend Constitution, was 'debatable'. In this article we explain what is the basic structure doctrine and its importance.

Former Chief Justice of India Ranjan Gogoi, in his maiden speech in Rajya Sabha, opened a can of worms after he said the basic structure doctrine, which limits Parliament's power to amend the Constitution, was "debatable". The remark drew condemnation from the Opposition, with Congress wondering whether it was the BJP's trick to begin "full-fledged dismantling" of the Constitution.

Gogoi made the remark while participating in the debate on the Delhi services Bill, which effectively nullifies the Supreme Court's May verdict granting the elected government power over services in the national capital.

Ironically, Gogoi, when he served as the Chief Justice from October 3, 2018 to November 17, 2019, had himself mentioned the Basic Structure doctrine while striking down laws.

What Is The Basic Structure Doctrine?

In simple terms, the doctrine means that there is a basic structure to the Constitution and Parliament cannot amend the basic features of the statute.

Interestingly, there is no mention of the term "basic structure" anywhere in the Constitution.

The concept was created by the Supreme Court while passing the landmark 'Kesavananda Bharati Vs State of Kerala' judgment on April 29, 1973.

A Constitutional bench of the Supreme Court, in a 7-6 verdict, ruled that Parliament could not alter or amend the 'basic structure' or essential features of the Constitution. It was meant to ensure that the power of amendment was not misused by Parliament.

In fact, the origins of the basic structure doctrine can be traced back to German Constitution law after World War II. After the Nazi regime ended, the German Constitution law was amended to protect some basic laws.

The basic structure doctrine was invoked by the Supreme Court in 2015 for quashing the National Judicial Appointments Commission (NJAC) Act on the appointment of judges.

The SC held that the law violated the principle of independence of the judiciary — a basic tenet of the Constitution.

READ | Delhi Services Bill Passes Rajya Sabha Hurdle With 131 Votes As BJD, YRS Congress Back Legislation

What Is The Kesavananda Bharati Case?

The Kesavananda Bharati case is one of the most important cases in India's history. The ruling marked a culmination of a series of conflicts between the judiciary and the government led by then Prime Minister Indira Gandhi.

Before the Kesavananda verdict, the topic on the powers of Parliament was broached by the Supreme Court in the Sankari Prasad judgment of 1951 and the Golak Nath Vs State of Punjab case in 1967.

Kesavananda Bharati, the then chief of the Edneer Mutt, moved the Supreme Court over two land reform laws of the Kerala government that put restrictions on the size of land that could be held by religious bodies.

Under the Kerala Land Reforms Act, 1963, the state government had acquired a part of the land of Edneer Mutt, which affected its earnings. Kesavananda Bharati said the land reform laws violated the fundamental rights given under Article 14, 19(1)(f), 25, 26 of the Constitution, as per records.

After a record 68-day hearing, the apex court ruled that under Article 368 "the power to amend does not include the power to alter the basic structure or framework of the Constitution so as to change its identity".

What Did Ex-CJI Ranjan Gogoi Say In Parliament?

Replying to a debate on the Delhi services Bill, Ranjan Gogoi said the basic structure of the Constitution had a "debatable jurisprudential basis".

Gogoi, a nominated member of the Rajya Sabha, made the remarks after several opposition MPs termed the Bill "unconstitutional".

Replying to the debate, Gogoi said the legislation may not be to his liking but "that does not make it arbitrary".

"Does it violate the basic features of the Constitution?… There is a book by (Tehmtan) Andhyarujina, ex-Solicitor General, on the Kesavananda Bharati case. My view is that the doctrine of the basic structure of the Constitution has a debatable, a very debatable jurisprudential basis," Gogoi said.

When Gogoi Cited The Basic Structure Doctrine As CJI

Interestingly, when Gogoi was the CJI, he had mentioned the basic structure doctrine while striking down legislation.

A Gogoi-led SC bench had struck down the law restructuring tribunals for violating the basic structure in 2019.
Even in the landmark Ram Janmabhoomi case judgment, which paved the way for the construction of Ram temple at the disputed site in Ayodhya, Gogoi had said "secularism is a basic feature of the Constitution that is inviolable".

Vice President Jagdeep Dhankhar Too Questioned 'Basic Structure' Doctrine

Earlier this year, amid a tussle between the government and judiciary over appointing judges, Vice President Jagdeep Dhankhar said the Kesavananda Bharati case verdict that gave the basic structure doctrine "set a bad precedent".

Dhankhar had said Parliament's sovereignty cannot be compromised by the judiciary. "If any institution on any basis strikes down the law passed by parliament then it will not be good for democracy and would be difficult to say we are a democratic nation," the Rajya Sabha chairman said.