On 24th April 1973 the full bench of the Supreme court in the Keshavananda Bharati Case upheld the right of the parliament to amend any provision of the constitution with a proviso that the parliament can’t alter, emasculate or obliterate the basic foundational principles encapsulated in the constitution. This judgement overruled a major judgement in 1967 “Golaknath Vs. Union of India” where the Supreme Court again withheld tight rope verdict (6:5) had decreed that the fundamental rights of the constitution can’t be amended by the parliament by invoking its amending power under Article 368. Many believe that the basic structure doctrine was brought to the notice of the Parliament by the famous jurist Nani Palkhivala. However, A.G. Noorani writes that the originator of this idea was Prof. Dietrich Conrad of the University of Heidelberg, Germany who during the course of a lecture at Banaras Hindu University in 1965 had mentioned how “any amending body, however unlimited in its power, can’t by its very structure change the foundational pillar, supporting its constitutional authority. Chief Justice Sikri writing the majority judgement had identified republic, democracy, sovereignty, secular and federal character, separation power as constituting the basic structure. Justice H.R. Khanna while agreeing with Chief Justice Sikri, justice Khanna wrote that fundamental rights like right to property can be amended by the govt. for the public purpose. In fact, in 1978, the government took Right to Property (Art 31) from the ambit of Fundamental Rights (Part III) and made it an ordinary right (Art 300A) through the 44nd amendment.

The basic structure doctrine was put to test in 1975 when the 39th amendment by the parliament tried to ring fence election of a PM and President from judicial review by adding a new section Art 329A. In a rare unanimity the court decreed that the new section 329 Some as ultra vires as it violets the principles of free and fair election which is an essential postulates of democracy and its basic structure. It also thumb-nailed equality before law as an indelible characteristic of justice. Peeved by the Kesavananda verdict and subsequent quashing of 39th amendment, Mrs. Gandhi introduced the 42nd amendment (1976) which included 2 new clauses in Article 368) as per which parliament has absolute power to amend the constitution and that the judiciary would not be entitled to do a review of such amendments. In a land mark judgement Minerva Mills Vs. Union of India (1980) Justice Y.B. Chandrachud decreed that “the donee of a limited power can’t by the exercise of the power convert the limited power into an unlimited one”. He further observed three articles of our constitution stand between the freedom into which Tagore wanted his country to awake and the abyss of unrestraint power”. Those articles are article 14 (right to equality), article 19 (right to freedom), article 21 (Right to Life and Liberty). The Minerva mills judgement has crystalized the position that the basic structure doctrine has to be respected by the legislative wing of our democracy. Though this doctrine has not been formally incorporated in our constitution, it has been tacitly accepted as a non- negotiable dictum by all political parties irrespective of their ideological predilections.

The basic structure doctrine has been invoked in about 60 cases so far including the recent challenge to 10 % reservation for Eco Weaker Sec of society excluding SC/ST/OBC. The Supreme Court has upheld this reservation and the principles underlying it. However, the challenge to the 99th amendment which suggested creation of NJAC in lieu of the opaque collegium system for selecting judges has generally put the Supreme Court in an unenviable position. Late Arun Jaitley called this judgement ‘tyranny of the unelected’ and was of the view that the principle of separation of power which is a basic structure has not been respected by the Supreme Court. A dissenting judgement was given by Justice Chelameswar who was of a view that a broad based selection system envisaged in NJAC where the government is represented by the law minister would be far more transparent than the present collegium system which is extremely opaque. Commenting on independence judiciary he observed “whether the law minister chooses or the chief justice choses is not what is important. The parameters for choosing them, the considerations made, that potentially decides the independence of the judiciary.”

The collegium system has no parallel anywhere in the world. Quite likely, chastened by the supersession of judges by the government in 1973 and 1976 the court is trying to protect its turf by not allowing the government to nominate its hand-picked favourites to the judiciary. The government being the biggest litigant in terms of human rights abuses would be greatly tempted to nominate judges who would be politically pliable and committed to the philosophy the govt. Of late, the Vice president Mr. Jagdeep Dhankhar while delivering a lecture to the 83rd all India Presiding Officers’ conference observed that article 368 enables the parliament to amend the basic structure. CJI DY Chandrachud as a riposte has observed that the constitution is supreme and the basic structure doctrine is essentially to protect its soul. In the India Today conclave also he tried to justify how the present collegium system puts a premium on merit and transparency.

It was Tomas Jefferson who had famously said that ‘some men look at the constitution with sanctimonious reverence and deem them too sacred to be touched.’ There is a merit to this contention in the sense that the constitution must evolve and meet the aspiration of its people in a dynamic situation where ideas mooted on old ideals may not stand to reason. While there could be no debate that secularism should be a basic structure, as opposed to India becoming a Hindu state. an amendment to convert India’s parliamentary to a presidential form has ample merit into it. While the preamble to the constitution considers socialism to be a basic structure, in reality India has become a free market economy, which has taken India out of the trap of low ‘Hindu rate of Growth.’ Chief Justice Sikri had observed that the mandate to build a welfare state as envisioned in the Directive Principles of State principle should be a basic structure. The concept of an inclusive society has no political opposition.

Despite Supreme Court’s indefensible verdict in the NJAC case by wrongly invoking basic structure to protect its turf, the basic structure doctrine has strengthened India’s democracy by limiting the power of a majoritarian government to undermine the constitution’s central ideas. The Supreme Court should also look at its own double standards, when it pulls up the government for not having a collegiate system for selecting the CEC, while it defends its insular collegium system. Be that as it may, it is unfortunate that the Vice President proposes to throw the baby with the bath water, by debunking the basic structure doctrine. As the doctrine celebrates its golden jubilee, it has stood the test of time, by insulating the pristine constitutional ideas from majoritarian rampage & making judiciary ‘committed’ to party in power.

Prof. Misra teaches Constitutional Law

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