Citizenship Act may find it tough to clear 'basic structure' doctrine

Last week’s controversial amendment to the Citizenship Act has had everyone scouring the statute books to see if it has in any way altered the “basic structure” of the Constitution. In fact, the term ‘basic structure’ is being bandied about as the saviour that will help nullify the amendment. The government, on the other hand is confident it will sail through judicial scrutiny.

On the face of it, the Citizenship Amendment Act, though not a constitutional amendment, appears to have far-reaching consequences on the “basic structure” of the Indian Constitution by encroaching on its fundamentals and attempting to dilute or take away precious freedoms.

The Modi government-engineered amendment to the Citizenship Act, 1955, has already thrown large sections of Indian society into turmoil as seen in the widespread protests in Assam and other north-eastern states, Bengal and across various other parts of the country.

The amended Act allows citizenship rights for persecuted minorities from three countries — Bangladesh, Pakistan and Afghanistan — except those belonging to the Muslim community. This is perceived as discrimination based on religion, which goes against Article 14 of the Constitution that expressly forbids it.

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The Act could also directly affect sections of India’s 20 crore Muslim population when seen in conjunction with the proposed exercise to ostensibly track undocumented migrants from other countries. While the non-Muslim sections can theoretically take recourse to the amended Citizenship Act for succour, even Indian Muslims can get stranded in the event of not being able to prove their citizenship. This is the core of the issue that has aroused the resentment, nay, anger of a large section of Indians leading to protests.

But the Act has already been passed and is now law. The final hope rests with the judiciary which the dissenters hope will strike down the amendment as it goes against the “basic structure” of the Constitution.

It does seem logical and sound that the move to keep out the Muslim community is untenable under Article 14 of the Indian Constitution, which espouses equal rights for all and under the Constitution’s preamble which characterises the Indian state as “secular”. But a closer look at the doctrine of basic structure shows that it is still a work in progress.

For one, the Supreme Court as the sole custodian of the Indian Constitution, has until now not delineated exactly what the basic structure is. Several judges occupying constitutional benches have given their own interpretation of what basic structure means, all of which are therefore valid, yet not in one clearly defined unanimous ruling.

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India’s federal structure, the separation of powers among the judiciary, executive and the legislature, citizens’ fundamental rights and the socialist, democratic and secular nature of the state come under the basic structure, in the opinion of various judges as seen in their rulings.

In the specific case of secularism, the nine judges who constituted the bench in the S R Bommai vs Union of India case (1994) were unanimous in their view that it was part of the Constitution’s basic structure.

What is incontrovertible is that if Parliament, in amending the Citizenship Act, over-reached itself by infringing upon the basic structure of the Constitution, the judiciary will have no hesitation in striking it down. For, in the seven decades since Independence, if there is one outcome in India’s constitutional history it is that Parliament has the power to make laws or amend the Constitution but in a manner as to leave its basic structure untouched.

Even this has not come about smoothly. Since independent India came to being, there has been a continuous tussle between the legislature/executive on the one side and the judiciary on the other to test the limits of power and constitutionality. In other words, how far can a government go in its exercise of power without affecting the basic structure of the Constitution?

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Soon after India became a republic and the Constitution came into force in 1950, the Supreme Court in two judgments in 1952 (Sankari Prasad Singh Deo vs Union of India) and in 1955 (Sajjan Singh vs state of Rajasthan) upheld the power of Parliament to amend any law including that which governed citizens’ fundamental rights.

This was overturned 12 years later by a 11-member Constitutional bench in the Golak Nath vs state of Punjab, 1967 case. In a six to five majority decision, the court ruled that Parliament had no powers at all to modify or restrict fundamental rights as laid out in the Constitution. The term “basic structure” was reportedly used for the first time during the course of hearing in this case.

A piqued government in 1971 under the then prime minister Indira Gandhi called for mid-term elections after the apex court struck down the law abolishing privy purses for erstwhile princely families. Ms Gandhi returned to power with a two-thirds majority. One of the first things that the Parliament did was to amend the Constitution that restored for itself the right to amend any part of the Constitution including the section on fundamental rights.

These amendments were challenged and the issue came before the Supreme Court which set up a 13-member Constitutional bench, in the watershed Kesavananda Bharati case of 1973. In a majority order, seven of the 13 judges ruled that that Parliament had the power to amend any part of the Constitution but subject to inherent limitations. Parliament could not use its amending powers to alter in any manner the “basic structure” of the Constitution.

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There was no unanimity on what the basic structure constituted and each of the seven judges separately laid down what it meant. Chief Justice S M Sikri, for instance, listed Constitution’s supremacy, secularism and federal structure among the basic structure. Other judges on the bench variously named parliamentary democracy, sovereignty and the unity and integrity of India as the basic structure.

Two years later, the basic structure doctrine was again challenged following the Allahabad High Court ruling striking down the election of Ms Indira Gandhi on grounds of electoral fraud. After getting a stay on the judgment from the Supreme Court, the Parliament hastily brought in the 39th amendment to the Constitution which sought to place the election of President, Vice President, Prime Minister and Lok Sabha Speaker beyond the purview of the apex court.

The Supreme Court in a four to one ruling struck down the amendment that placed election results beyond the purview of judicial review, but allowed the amendments to the election laws. Under the 39th amendment, the electoral laws were placed in the Ninth Schedule and this helped protect Ms Gandhi from the Allahabad High Court ruling. But again, the judges reaffirmed the concept of basic structure of the Constitution with each defining it separately rather than a common definition.

From these judgments it was clear there was a basic structure to the Constitution but what exactly it should mean was left open, other than what individual judges have spelt out in their rulings.

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In an interesting development, three days after Ms Gandhi’s election dispute ruling in 1975, Chief Justice A N Ray constituted a 13-member bench to hear some land reform-related cases but in reality was seen to be a review of the earlier Kesavananda Bharati judgment. Senior Counsel N N Palkhivala in court questioned the setting up of the bench in the absence of any petition challenging the Kesavananda ruling. Within two days the bench was dissolved. The episode gave rise to speculation whether the government had any role to play in it.

The Emergency soon followed. The Indira Gandhi government brought in the 42nd amendment that again restored Parliament’s supremacy under Article 368 to make changes to any part of the Constitution including that on fundamental rights and precluded any of these alterations from judicial review.

The Minerva Mills case in 1980 provided an opportunity for the Supreme Court to nullify the 42nd amendment and restore the doctrine of basic structure among other things. Importantly, the court ruled that Parliament’s limited amending power itself was part of the Constitution’s basic structure. This is where the situation now stands, with balance restored between Parliament’s amending powers and judicial review that extends to all laws made in Parliament.

The amendment to the Citizenship Act is therefore open to challenge as it appears to infringe both the right to equality under Article 14 and the secular character of the Indian Constitution, both of which are intrinsically tied to its basic structure.