by Manish Kumar (Advocate-On-Record) (AOR Code -3767)
INTRODUCTION
The Doctrine of Basic Structure bears significant importance in the domain of Indian constitutional jurisprudence, serving as a foundational element intricately integrated throughout the legal framework of the nation. The proposition that specific components of the Constitution are unchangeable holds substantial ramifications, encompassing the allocation of authority, the safeguarding of democratic principles, and the overall structural soundness of the Constitution.
THE CURRENT TUSSLE
The current tussle between legislature, executive, and judiciary regarding basic structure rekindled when the Vice-President of India Jagdeep Dhankar made certain remarks and questioned the Basic Structure Doctrine. Speaking at the 83rd All-India Presiding Officers Conference in Jaipur raised the issue of the National Judicial Appointments Commission judgment and observed that, “In 1973, a very incorrect precedent was started in India. In the case of Kesavananda Bharati, The Supreme Court gave the idea of basic structure, that Parliament can amend the Constitution but not its basic structure. With due respect to the judiciary, I cannot subscribe to this. This must be deliberated. Can this be done? Can Parliament allow its verdict will be subject to any other authority?… Otherwise, it will be difficult to say that we are a democratic nation”. Earlier in his opening address on December 7, after assuming the office of Rajya Sabha Chairperson, said that the striking down of the National Judicial Appointments Commission (NJAC) Act was a “glaring instance” of “severe compromise” of the sovereignty of Parliament and disregard of the “mandate of the people”.
This is not the first time that such remarks have been explicitly stated by a Vice-President. Even in the year 2020, the then Vice-President Venkaiah Naidu using the very same platform expressed his reservations regarding judicial overreach on the ban of fire-crackers and the NJAC decision. “Occasionally, concerns have been raised as to whether they (judiciary) were entering the domains of the legislative and the executive wings”, was what he observed. The observations made by Dhankar on the appointment of judges are closely knit with the constant remarks made the then Union Law Minister Kiren Rijiju, who called the mechanism to be “opaque”, “alien to the Constitution” and described the present system as the only apparatus in the globe where judges appoint people who are familiar to them.
The very next day while hearing a case relating to the appointment of judges, the Supreme Court asked Attorney General R. Venkataramani to advise governmental functionaries to “exercise control”. Following this Dhankar expressed his displeasure and said that, “I cannot be a party to emasculate the power of legislature…what is the situation today? One-upmanship, public posturing…public posturing from judicial platforms. This is not correct.” Later, Lok Sabha Speaker Om Birla speaking at the event too affirming this view was of the opinion and urged the judiciary “to confine its limits prescribed in the Constitution”. He expressed that, “Judiciary is also expected to follow the principle of separation and balance of powers conferred by the Constitution among all institutions while exercising its constitutional mandate.”
“The basic structure of our Constitution, like the north star,” said CJI Chandrachud at the 18th Nani Palkhivala Memorial lecture on “Traditions and transitions: Palkhivala’s legacy in an interconnected world” at Tata Theatre, National Centre for Performing Arts (NCPA), Mumbai. Further, he observed and said, “Guides and gives a certain direction to the interpreters and implementers of the Constitution when the path ahead is convoluted.” These were the views of the Chief Justice in response to the comments made by the Vice-President. The doctrine of basic structure working as a ‘north star’ provides guidance which is invaluable for the purpose of interpretation of the Constitution here and elsewhere. Elaborating this further, CJI opined that the basic structure or philosophy of our Constitution is based upon the supremacy of the Constitution, rule of law, separation of powers, judicial review, secularism, federalism, freedom, and the dignity of the individual and the unity and integrity of the nation.
Supreme Court former Judge Deepak Gupta raised the question ‘What if there is no basic structure doctrine?’ while delivering a guest lecture at the 2nd Dr. B.R. Ambedkar Memorial Lecture in the year 2023 at Hidayatullah National Law University on the topic ‘Will of the People or Rule of Law’. He opined that the government intends to have courts with such people who will toe their line and the ones who will not be critical of them upholding their every action. Through this lecture he highlighted the significance of ‘basic structure doctrine’ serving as a check on the abuse of majority power. He made a significant comparison while speaking about the experience of Germany under the dictatorship of Adolf Hitler. He said, “Using brute majority in Germany, they made so many amendments that they took away the rights of the citizens including the right of freedom of speech, residence, association and habeas corpus. He also passed a law that hereinafter you do not have to bring anything to the Parliament. The executive was supposed to bring in laws. And we know what happened. Millions of Jews who belonged to the minority community were killed. So, after the Second World War when the Federal Republic of Germany was drafting its new Constitution, they said, we will have some basic clauses that can never be removed. They took out rule of law, fundamental rights, separation of powers from the amending power of the Parliament. They said these basic laws are eternal and nobody can remove them.”
Justice Gupta then raised the question as to what will happen if we don’t follow the basic structure doctrine today? In such a scenario Parliament can say and do anything. For instance, if the Parliament wants the country to be a monarchy or dictatorship and do away with democracy. Parliament can even say to take away all fundamental rights. A striking statement was made here and he said, “So even if the Parliament represents the will of the people, it cannot change the basic structure of the Constitution.”
The last nail in the coffin was struck by former CJI Ranjan Gogoi, now a nominated member of Rajya Sabha when he opined that the doctrine of basic structure has an arguable jurisprudential basis in his speech made in the Rajya Sabha. During his maiden speech, he observed that “there is a book by Andhyarujina on the Kesavananda Bharati case. Having read the book, my view is that the doctrine of the basic structure of the Constitution has a debatable, very debatable jurisprudential basis. I would not say anything more than this.” In response to this K.C. Venugopal, Congress general secretary and Rajya Sabha member raised the issue whether the government too endorsed the former CJI’s views on basic structure doctrine.
CONCLUSION
Given the current involvement of the nation with ever-changing political environments and growing public demands, the ongoing struggle offers an opportunity to assess the resilience of its democratic foundations. Understanding the legitimate concerns articulated by adversaries is of paramount significance. Nevertheless, it is crucial to acknowledge that the Basic Doctrine Structure functions as a safety mechanism, discouraging potential occurrences of power exploitation and upholding the fundamental ideals outlined in the Constitution.