Legal Experts Question Whether Ordinary Laws Can Undermine India's Basic Constitutional Principles

At the launch of Justice Rohinton Fali Nariman’s new book exploring the Basic Structure Doctrine, a panel of distinguished legal minds—including Senior Advocates Kapil Sibal, Dr. Abhishek Manu Singhvi, and Arvind Datar—voiced concern over a growing constitutional paradox: ordinary laws that may undercut the fundamental framework of the Constitution are largely shielded from scrutiny under the Basic Structure Doctrine.

The conversation was sparked by recent judicial interpretations, including a Supreme Court ruling in Anjum Kadari vs. Union of India, which reaffirmed that only constitutional amendments—not regular laws—can be invalidated on the grounds of violating the basic structure. Such laws can only be challenged if they infringe upon specific fundamental rights.

The Legal Dilemma: Same Law, Different Outcome

Senior Advocate Kapil Sibal pointed out a troubling inconsistency: if a particular law were introduced through a constitutional amendment, it could be quashed for breaching the Basic Structure. Yet, the same law enacted as an ordinary statute would remain untouched.

He explained, “If the same content is passed as a constitutional amendment, it would be invalid. But pass it as ordinary legislation, and it stands — even if it undermines the Basic Structure. That is deeply problematic.”

Sibal further emphasized that the Basic Structure Doctrine is now an inseparable part of India’s constitutional framework. Citing Article 359, which protects Articles 20 and 21 even during emergencies, he argued that the Constitution itself embeds limitations on governmental power, and the Basic Structure doctrine simply formalizes this inherent principle.

According to Sibal, a growing concern is the increasing number of ordinary laws that subtly dismantle foundational constitutional values. He warned, “You don't have to amend the Constitution to weaken its Basic Structure. Ordinary laws can do that, and it's happening — often without serious challenge.”

Inherent Constitutional Limits

Highlighting the importance of checks on absolute power, Sibal noted that the Constitution carries an “inherent inhibition” against unrestrained authority. Even if courts had never explicitly articulated the Basic Structure Doctrine, they would eventually have recognized these intrinsic limitations, he argued.

He raised alarms about areas like federalism and secularism being eroded by current legislations — issues that cannot be challenged purely on Basic Structure grounds unless a direct violation of Part III (Fundamental Rights) is shown. "This selective application allows slow erosion without remedy," he cautioned.

Offering a hypothetical, Sibal explained that if Parliament passed a constitutional amendment authorizing the destruction of monuments belonging to a particular community, it could be invalidated for breaching the Basic Structure. Yet if the same policy were framed as an ordinary law, it might survive judicial review — an outcome he called “a looming crisis.”

Revisiting an Old Interpretation

Senior Advocate Dr. Abhishek Manu Singhvi underlined that the Basic Structure Doctrine exists to prevent majoritarian excesses and unchecked governmental power. According to him, it’s time to reconsider the prevailing view that only constitutional amendments can be evaluated against the Basic Structure.

Singhvi suggested that this understanding, traced back to Justice Mathew’s comments in Indira Gandhi v. Raj Narain, might be based on a misinterpretation. Later cases like Kuldeep Nayar and Anjum Kadari have followed this precedent unquestioningly, he observed, but it is worth re-examining whether Justice Mathew’s remarks were intended to create such a hard distinction.

"This is an area ripe for re-evaluation by a larger bench — a five-judge, seven-judge, or even nine-judge panel," Singhvi urged. He argued that without revisiting this question, vast areas of potential Basic Structure violations could remain unchallengeable unless linked to direct constitutional violations.

An Inconsistent Standard?

Adding to the conversation, Senior Advocate Arvind Datar pointed out the paradox: constitutional amendments can be invalidated for breaching the Basic Structure, but ordinary laws cannot.

He referenced Justice Beg’s views in State of Karnataka v. Union of India, which seemed to leave open the possibility that even ordinary statutes could be tested against the Basic Structure. Datar suggested that Justice Mathew’s famous observation was more of an obiter dictum (a casual remark, not binding law) rather than a categorical ruling — raising the question: “Why shouldn't ordinary laws be subject to the same scrutiny?”

Justice Nariman’s Perspective

Justice Nariman offered a nuanced view. He argued that the Basic Structure is not some external standard imposed upon the Constitution — it is embedded within the Constitution’s own text. Therefore, rather than invoking the Basic Structure explicitly when challenging a law, litigants should simply test it against the specific Articles of the Constitution.

“If a statute violates any constitutional Article — whether or not that Article is part of the Basic Structure — the law will fall,” he clarified. In this framework, every constitutional provision stands as a guardrail against ordinary legislation.

Key Reflections from the Event

• Justice Nariman warned: “If the Basic Structure Doctrine ever falls, God help this country.”

• Justice KV Viswanathan added that certain Fundamental Rights are beyond the reach of even majority will, noting they cannot be taken away — not even through a referendum.