Basic structure doctrine: V-P criticised it, Chief Justice of India calls it ‘north star’, guiding light

The CJI was delivering the 18th Nani Palkhivala Memorial lecture on “Traditions and transitions: Palkhivala’s legacy in an interconnected world” at Tata Theatre, National Central for Performing Arts (NCPA), Mumbai, this morning. The event was organised by Nani A Palkhivala Memorial Trust in association with Bombay Bar Association.

“From time to time, we require people like Nani (Palkhivala) to hold candles in their steady hands to light the world around us,” the CJI said. “Nani told us that our Constitution has a certain identity which cannot be altered,” he added.

Eminent jurist Palkhivala was the lawyer for Swami Kesavananda Bharati who had filed a writ petition in the Supreme Court challenging Kerala’s 1969 land reforms. This, ultimately, led to the Supreme Court’s landmark decision that outlined the basic structure of the Constitution under which Parliament had the authority to amend the Constitution but not its basic structure or foundational principles.

The doctrine of basic structure, the CJI said, shows that judges should also look at how other jurisdictions, including states or countries having similar problems, have addressed the same issues.

“Whenever a legal idea is transported from another jurisdiction, it ends up undergoing a transformation in its identity dependent on local requirements. After India adopted it, the doctrine migrated to our neighbouring countries including Nepal, Bangladesh and Pakistan,” CJI Chandrachud said. “Different formulations of the basic structure doctrine have now emerged in South Korea, Japan, certain Latin American countries and African countries as well. The migration, integration and the formulation of the doctrine of basic structure in constitutional democracies across continents is a rare success story of the diffusion of legal ideas of the world.”

“Nonetheless, the larger picture of legal culture and local dimensions of law, which are dictated by the local context, should never be obfuscated. Law is always grounded in social realities,” the CJI said.

Last month, presiding over Rajya Sabha during winter session of Parliament, Dhankhar had called the striking down of the NJAC Act by the Supreme Court a “severe compromise” of parliamentary sovereignty and disregard of the “mandate of the people”. He had also said that Parliament, being the custodian of the “ordainment of the people”, was duty-bound to “address the issue” and expressed confidence that “it will do so”.

These remarks come at a time of a deepening standoff between the Executive and the Judiciary with the latest move being the apex court’s Collegium rejecting and making public the Centre’s objections to its recommendation for the appointment of at least three advocates as High Court judges.

Chandrachud noted that Palkhivala had represented former Prime Minister Indira Gandhi before the Supreme Court and how he withdrew his appearance going against the government after Emergency was declared.

He added that Palkhivala “shaped the history of contemporary India” through his contribution to law and economics. “He dedicated his life to preserving the rights given in the Constitution.”

“The identity of the Indian Constitution has evolved through the interaction of Indian citizens with the Constitution, and has been accompanied by judicial interpretation,” CJI Chandrachud said. “The craftsmanship of a judge lies in interpreting the text of the Constitution with the changing times while keeping its soul intact,” he said.

Later on Saturday evening, CJI Chandrachud was felicitated by Bar Council of Maharashtra and Goa (BCMG), a statutory body of lawyers on his elevation as top most judge of the country at an event held in Dadar.

Supreme Court judge Justice B R Gavai and Acting Chief Justice of the Bombay High Court Justice S V Gangapurwala were Chief Guests. Additional Solicitor General Anil Singh and Advocate General of Maharashtra Birendra Saraf were also present.

CJI Chandrachud, addressing over 2000 young lawyers, raised concerns over exorbitant fees needed to enrol as an advocate and said live streaming of court proceedings could provide education to those who do not have enough resources.

“Some criticised the move and said that judges will do theatrics in court when the camera is on. However, by listening to grievances of the young lawyers, you can understand where the pulse of the nation lies. The system always lies above the individual. Never think that you are above the system,” CJI Chandrachud told young lawyers.