Questioning the “basic structure” doctrine that acts as a check against legislative over-reach, a Congress Member of Parliament from Rajya Sabha has written to Finance Minister Arun Jaitley asking the BJP to act against what he calls judicial encroachments to parliamentarian rights and has asked for a special session to discuss judicial activism.
Shantaram Naik from Goa has questioned the validity of the “basic structure doctrine,” a Supreme Court ruling-backed principle under which certain basic features of the Constitution, including fundamental rights, cannot be altered, diluted or destroyed through amendments by Parliament. The principle, reinforced in the 1973 Kesavananda Bharti case, is considered a touchstone in the debate over separation of powers and a bulwark against government excess.
“I feel the time has come. The BJP can do it. They can challenge this doctrine,” Naik told The Indian Express. “In Lok Sabha the BJP has a majority, and in Rajya Sabha they can agree with a consensus. But it’s only BJP who can now act on this and stop this systematic encroachment by the judiciary,.”
Saying “in person” every party, every politician feels the same, he said: “If you call for a discussion through a special Session of Parliament then everyone will come forward to put this on record. You will be surprised, but everyone is fed up of this judicial encroachment that has only increased over the years.”
In a letter addressed to Jaitley and Union Law Minister Ravi Shankar Prasad, Naik writes, “Perhaps, you may or may not agree with me with respect to all the points that I seek to articulate on the issue of judicial interference but, it started with ‘invention’ of ‘basic structure’ if the constitution which, even Dr B R Ambedkar, perhaps never dreamt in his wildest dreams but, has, today, has become a law, which perhaps, no one can touch.”
The letter further reads, “If there was anything called ‘basic structure’ incorporated in the Constitution, founders of our Constitution would have, certainly seen it but, it is Supreme Court of India who discovered that there was what is called ‘basic structure’ imbibed in the constitution which, the parliamentarians, who are the representatives of the people, according to Supreme Court cannot question. This means, if, presuming for a moment, parliamentarians desire through any democratic process, to change country’s parliamentary form of government to presidential form of government, they are forbidden from doing so as, according to the judgment, it would be changing of basic structure.”
Naik’s tenure in Rajya Sabha ends on July 20, 2017. He has been chairman of the Parliamentary standing committee on law.
Over the last few months, Naik says, he dabbled with the idea of a written letter and finally wrote it Wednesday. “I have spoken about this in private to Arun Jaitley thrice, while I was in UPA. In fact, more recently I took it up with him when even matters like a MP’s salary had judicial intervention. But I didn’t put that on record as it would seem petty. I have been voicing this for a while, over the basic structure and judicial excess to my own party leaders and I had given the same suggestion to our Law Minister Veerappa Moily. We couldn’t do much as we do not have the required numbers in Rajya Sabha or Lok Sabha the way BJP now has,” he said.
He is yet to officially inform his top brass or any one in Congress about his correspondence.
“Today there are so many orders including how much weight a child should carry in his school bag, the nature of shops around highways, the dance bar issue etc. What are the parliaments doing, if judges decide for all,” he adds. Pointing specifically to the liquor bar ban near highways, he writes, “As Prime Minister cannot decide judicial matters, so also, judges cannot interfere in the matters which are allotted to legislature and executive on the grounds that executive and legislature have failed to discharge their responsibilities.”