4 min readNew DelhiApr 26, 2023 03:52 PM IST
First published on: Apr 26, 2023 at 04:01 AM IST
On the 50th year of the “basic structure” doctrine that restricts the power of Parliament to alter the fundamental features of the Constitution, veteran senior advocate Fali S Nariman expressed confidence that the doctrine is here to stay.
In an interview to The Indian Express, Nariman said that even if tested again, the Supreme Court will defend the basic structure doctrine, which is now “cemented” in the Constitution.
“They will come to the same conclusion. Because to my mind, anybody who is reasonable would come to the same conclusion. I think it is now cemented…It’s very difficult for anybody notwithstanding what one member of the present government may say or may not say. Makes no difference,” he said.
“Let them introduce whatever they want to introduce. We will see whether it’s on shaky legs or firm legs. That’s where the Supreme Court mettle will come in and I have full confidence that they will never permit the doctrine to be watered down. In a given case they may uphold a constitutional amendment like they did with the l03rd…which could have two or three judges differ…May these things go on. You can criticize it but no one must shake the foundation,” Nariman added.
Nariman, 94, argued against the 99th Constitution Amendment Act, commonly called the NJAC Act, that gave the Executive a foot in the door on judges’ appointment. The Supreme Court in a 4-1 verdict, struck down the amendment as unconstitutional on the grounds that it alters the independence of the judiciary which is the basic structure of the Constitution. Nariman also argued the 1993 Second Judges Case and the 1998 Third Judges case, successfully persuading the Supreme Court to adopt the present Collegium system of appointing judges.
“I still have faith in the judges. Doesn’t matter how they are appointed, why they are appointed,” he said.
Nariman said that he is confident that the judiciary will not dilute basic structure doctrine since it has mostly invoked the test to strike down an amendment when the Parliament has tinkered with judicial review and independence of the judiciary.
“Basically what the Court is most concerned with is that we (the Court) are the final interpreters of the Constitution and if you (Parliament) go against anything to do with judicial review, we will set our face against it. And if that remains, then I have no hesitation in saying that the basic structure will remain,” he said.
According to Nariman, even Parliament has approved of the basic structure doctrine in the 44th Constitution amendment in 1978 enacted during the Janata government. The amendment to Article 359 of the Constitution stated that even when Emergency is declared, the fundamental right to life and liberty cannot be suspended.
Nariman said that the basic structure check against Parliament cannot be removed because the only way to do it is by adopting a new Constitution.
“You can’t alter at all because you have to call a new Constituent Assembly and that is impossible in our country. Because every Indian today, and there are so many of us, we are the world’s largest population, have two opinions on every subject. It’s impossible to find, as of today, a constitution.. A new constitution of any sort drafted by anyone and accepted by anyone. So that…therefore it is our Constitution which keeps us all together, quite frankly,” he said.
Fali S Nariman. (Express photo by Chitral Khambhati) 
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