How basic is the Basic Structure Doctrine?

The author, Nikhil Sebastian, is a fifth year BA-LLB student at St. Joseph's College of Law, Bangalore.

The changing dynamics of Indian politics have witnessed the birth of the right wing, shrewd “nationalists” and “conservatives” as they call themselves, who identify politics with forms of religious extremism. Religion based political agendas are not new in India, but the latest form of propaganda that has arisen from this political faction is the call to “delete secularism” from the Indian constitution. Apart from the fact that this is a threat to our country's secularist values, it is also a direct attack on the Basic Structure Doctrine of our constitution. The article aims to understand the Basic structure Doctrine and the idea of secularism in the Indian context and if the said was to happen, how would it impact a religiously diverse country such as ours.

Ever since the political faction of the Sangh, the BJP has amassed power in the state, and there has been a rising cry to bring about reforms in the legal policies of the country - mainly to appeal to the far right end of the political spectrum. Sweeping changes especially with regard to religious policies are being demanded by a minor faction of extreme right wing thinkers, including a supposed removal of the words “secular” from the Preamble of the Indian constitution [1]. But before we analyse this proposition, we need a clear understanding of the Basic Structure Doctrine of the Indian constitution and the idea of secularism in the Indian context.

The idea of the Basic Structure Doctrine of the Indian constitution is one that first arose during the trials of the famed Kesavananda Bharati vs. State of Kerala [2] where it was understood that certain basic features of the constitution would be immune to all sorts of amendments, and could not be altered or changed by any legislature. The idea of a Basic Structure Doctrine encompasses a broader idea of the nature of the Indian constitution as per the ideals and deliberations of the Constituent Assembly. These basic features as they are so called, include concepts such as rule of law, supremacy of the constitution, unity and integrity, secularism etc. - ideals that have been enshrined in the constitution intentionally by the makers to ensure that the rights of every citizen of the country are upheld.

It is now that we deal with the concept of secularism. Within the Indian context, secularism is more of religious tolerance and acceptance rather than sticking to the true meaning of secularism, which is the absolute separation of the state and religion, wherein the state is completely indifferent in matters of religion. The term “secular” was added into the constitution with the 42nd amendment act during the general emergency and this has today become a bone of contention and dispute among many. There are those of the opinion that this amendment did not represent the wills and wishes of the original drafters of the constitution and was rather something that was added in haste and without due consideration during an emergency. By the same logic, this group of people believe that the term should be removed from the constitution altogether. At this very juncture, the concept of the Basic Structure Doctrine comes into play. The fundamental nature of the Indian constitution is such that it is inherently secular and neutral.

The honourable Supreme Court opined in SR Bommai vs. Union of India [3] that beyond any considerable doubt, the secularist values are a part and parcel of the basic structure of our constitution and that these may never be separated.[4] The Indian constitution which is the basis of the Basic Structure Doctrine was drafted and framed to suit an idea of India, which has always been a secular nation and that has stayed neutral in matters of religion when equated with governance. The basic structure of the constitution will remain immune to all forms of threats against it for as long as this very idea of India survives.

Technically, the Bharatiya Janata Party which is in power today could, via amendments remove the mere term “secular” in the same way the 42nd amendment act added it in the first place. Many people believe that in light of some of the decisions made by the government over the last few years, the term secular is losing its power and significance in our country, and is as good as removed from our Preamble already. The integrity of the country’s ideals have been bombarded on all fronts, but the true essence of India and its secular nature must continue to withstand all such trials, and remain intact, irrespective of all else.

References –

[1]https://www.hindustantimes.com/india-news/delete-secular-socialist-words-from-the-

constitution-plea-in-supreme-court/story-5JXAm1ml4eYKlYjCZRFJNM.html

[2] (1973) 4 SCC 225; AIR 1973 SC 1461

[3] [1994] 2 SCR 644

[4] https://scroll.in/article/862935/the-bjp-is-wrong-merely-removing-the-word-secular-from-

the-constitution-wont-make-it-any-less-so

Image Credits: https://educationsviews.wordpress.com/2018/07/20/india-needs-a-reinvented-secularism-2-0-rooted-in-separation-of-religion-and-state/