The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act 2020, (“Farm Act”) received Presidential assent on the 24th of September 2020. Challenging the Act, a Member of Parliament from the state of Kerala has filed a petition before the Supreme Court of India (“the Court”). Among others, the petitioner claims that certain provisions of the Act violate the basic structure of the Constitution. This argument relating to ordinary legislation violating the basic structure of the Constitution holds a contentious position in the jurisprudence developed by the Court. In light of this important petition and the interesting argument it raises, it is worthwhile to examine the exact limit and scope of the basic structure doctrine and its applicability to ordinary legislation.
In this article, I argue that the confusing jurisprudence surrounding the scope of the basic structure doctrine and its applicability to ordinary law must not preclude the Court from entertaining the argument (as has been done countless other times) with the Farm Act, particularly considering the strong significance it holds a case of the instant legislation and the kind of precedent it would set.
Without moving into the merits of the claims, it is first imperative to understand what the claims made under the petition are. The violation of the basic structure is but one of the arguments put forth in the petition, although one of the most prominent with far-reaching consequences. The petition claims that certain provisions of the Act violate the basic structure of the Constitution. As per Section 19 of the Farm Act, no civil court has the jurisdiction to entertain any dispute that a sub-divisional authority is empowered by the Act to entertain. This is a purported violation of judicial independence, which has been held to be a part of the basic structure of the Constitution.
SR Bommai v Union of India held that federalism was a part of the basic structure of the Constitution. The petition against the Farm Act also purports that the federal structure carpentered by the Constitution has been vitiated since the Parliament has passed an Act on agriculture, an area that falls within the exclusive domain of state legislatures. Apart from these, the Act has stirred massive protests and dissent from farmers since it poses other far-reaching consequences.
In the case of Indira Gandhi v Raj Narain, it was decided with a majority of 3:1 that the basic structure doctrine could not be applicable to ordinary law. The Court’s reason for the same was manifold and this position was upheld in State of Karnataka v Union of India and in many other subsequent judgments as well. However, in the case of Indira Sawhney v Union of India, a Bench of three judges held that legislation violating equality was tantamount to it vitiating the basic structure of the Constitution.
Even in the case of Kuldip Nayar v Union of India, the basic structure doctrine was applied to ordinary legislation. This series of cases trace a confusing position on the very scope of the basic structure doctrine and it is therefore imperative that this be cleared. Else, certain ambiguities in the judgments could serve as the potential for arguments to nit-pick on these ambiguities to further a position that negates the very purpose of the doctrine.
The Farm Act poses far-reaching consequences and this is undisputed. However, the current position of law surrounding the scope of the doctrine leaves room for the Court to dispose of an argument surrounding the basic structure at the outset. In light of this drastic possibility, it becomes imperative to engage with the positions upheld by the Benches that have so far denied the applicability of the doctrine to ordinary legislation.
Of the reasons advanced by said benches, three broad arguments make the most repetition and are as follows: firstly that the basic structure doctrine binds only the Constitution because it is a higher power as compared to legislation; secondly, that only express provisions could limit legislation; and thirdly, that the application of the doctrine to legislation would be an infringement of the separation of powers doctrine.
The Court argues that the basic structure doctrine exists as a limitation on the Constitution because it is a higher power. This argument derives from the fact that the majority required to pass constitutional amendments in the Parliament is different from that of statutory amendments. Thus, statutes and the Constitution operate in different fields and are therefore subject to different limitations. However, the limitations existing on a higher authority like the Constitution should naturally bind lower authorities such as legislation that derive their powers from the former. The existence of a difference in the majority required to pass amendments is no grounds to dismiss the repercussions of a statute that does not adhere to the ideals that the Constitution wishes to protect in the State. Although widely scoped, the doctrine has been carefully construed with the ideals that the nation wishes to achieve at its nucleus. The Constitution holds itself to a high standard so as to not corrupt the principles that underlie the establishment and running of the nation. If the legislation that orchestrates the running of the nation does not hold themselves to the same, the very purpose of the doctrine is diminished. It is counter-effective for the main document to follow certain standards that do not apply to legislation that guide its implementation. The Court has failed to take note of this implication and an unwelcome outcome of such an implementation of the basic structure doctrine would result in legislation that goes against the very ideals of the nation (including possibly the Farm Act).
In furtherance of the aforementioned, it is pertinent to note that legislation may violate the basic structure doctrine without expressly violating the provisions of the Constitution and still have detrimental effects on the functioning of the state. While a statute might not be unconstitutional while considering the express provisions of the Constitution, it might go against the basic structure and give effect to provisions the doctrine itself was formulated to avoid.
This then threads into the second reasoning provided by Benches. It was deduced that statues may be deemed unconstitutional only if they cater to something expressly forbidden by the provisions of the Constitution. The Court has chosen to incorporate only the express limits of the Constitution without considering the ideals underlying it. For as long as the Parliament exists, the written code of the Constitution will be amendable. By only considering the express limits that are mentioned in the text, the Court is giving the Parliament the power to change any caveats that might restrict its ambit, including these express limits.
To curb this, the doctrine of implied limits has to be incorporated; wherein doing so would include extending the limits to include the philosophies and the scheme of the Constitution as well. These limitations are unalterable by the Parliament thereby binding them to constitutionality. One such implied limitation imbibed from the scheme of the Constitution is the basic structure, a doctrine which should necessarily bind legislations. Since organic law is an inherent part of constitutional law and is an extension of the Constitution itself, the outcomes of legislation that does not follow the basic structure will be the same as the Constitution itself not following the doctrine.
The third and seemingly most striking argument considered by the Benches in not limiting legislation to the basic structure was that such an action would overstep the separation of powers doctrine and denude the Parliament of its legislative powers. However, by stating that legislative entries are exclusively limited to the legislature, it is implied that the Parliament has the power to overstep the boundaries of the Constitution and can therefore undermine the supremacy of the Constitution. The Court has failed to recognize that legislation that violates the basic structure without expressly going against the provisions of the Constitution would still lead to the carrying out of measures contrary to the contours and grand aims of the Constitution.
The purpose of a written Constitution is to place the state under the law whereby the modalities of legal reasoning will determine the legitimate authority of the state. It is the duty of the Courts to check the Parliament’s powers and ensure its functioning within the designated limits. This check may only be carried out if the Court mandates that legislations be bound by the doctrine, thereby ensuring their true constitutionality. The true outcome of binding legislation to the basic structure would not be a vitiation of separation of powers. It would instead uphold the supremacy of the Constitution over the Legislature, which is an integral feature of a state possessing federal characteristics.
It is natural that the basic structure which binds the Constitution also binds legislation that are derivatives of the former. The decision of the Court in deciding, on the Farm Act, on the applicability of the doctrine to ordinary legislation would be far-reaching. The outcome of not restricting legislation to the basic structure would result in placing the Legislature above the Constitution and the values the nation seeks to achieve, thereby denying the Constitution its supremacy, among others. It is imperative for the Court to consider these facets to avoid an unfortunate instance of it precluding an argument surrounding the applicability of the doctrine to ordinary legislation simply because of the confusing jurisprudence surrounding it. The Court should therefore test the Farm Act on the cornerstone of the basic structure of the Constitution. The importance of this application is particularly amplified considering the real far-reaching implications of the Act and the kind of precedent it would set for our endeavors in building a strong constitutional culture where we as a community are guided by constitutional principles.
Meghana Senthil Kumar is a second-year student of law at the National Law School of India University, Bangalore, India.
Suggested Citation: Meghana Senthil Kumar, The Indian Farm Act, 2020 and The Basic Structure Doctrine of the Indian Constitution, December 7, 2020, https://www.jurist.org/commentary/2020/12/meghana-kumar-farm-act-india/.
This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org.
