Fali S Nariman: ‘You can criticise it but no one must shake the foundation. Then, it becomes an earthquake’

But if the Basic Structure doctrine were to be revisted…

Makes no difference. They will come to the same conclusion. To my mind, anybody who is reasonable would come to the same conclusion. And I do believe that. I still have faith in the judges. It does not matter how they are appointed, why they are appointed. They may sometimes decide rightly, sometimes wrongly. But it’s a matter of human temperament because you do not like to see injustice. What you think is injustice therefore doesn’t appeal to you. That’s a very basic thought amongst all the people. Therefore, you will find (that) among judges also… you will find that thread. And that’s why the word ‘justice’ is the first word in the Preamble. Remember, that it is a very overarching thing and it governs our whole Constitution. So when you find some injustice, you must try to see how you can interfere. Law etc. takes second place. It may be according to law, but is it just? And that’s where the Constitution comes in.

There are a bunch of cases before the Supreme Court currently which will have to be tested against the Basic Structure doctrine – the amendment to the Citizenship Act or Article 370…

As I said, they are all capable of being corrected, even held in favour of the government. But I don’t see, at least I hope not that in the near future, the Basic Structure doctrine being revisited… whether by 15 or 17 judges… I still have great confidence in the judiciary. I may not like one or two judgments, I may criticise the judgments, but ultimately, I believe the court is the greatest saviour of our liberties.

Going back to 1973, in the Kesavananda Bharati case, what was the Court’s anxiety about the future that led to the Basic Structure test?

That is revealed not so much by our judgment but by the judgment of the constitutional court of Germany. You will find that they uphold this principle because there they have certain basic laws, as they call them.

Something that you can’t alter, you can’t alter at all. To do so, 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 as the world’s largest population, has two opinions on every subject. It will be impossible to find, as of today, a Constitution… a new Constitution of any sorts drafted by anyone and accepted by anyone. So therefore, it is our Constitution which keeps us all together, quite frankly.

In these 50 years, has there been a case where the Supreme Court should have struck down a law on the grounds of Basic Structure but did not?

I’m sure that there could be. There would be. But you must remember that there are sometimes judges who are like bulldogs. They will hold you and they won’t let go.

Basically, what the court is most concerned with is when it concerns them also, that we are the final interpreters of the Constitution and if you go against anything to do with judicial review, we will set our face against it. And if that remains, then I see no hesitation in saying that the Basic Structure will also remain.

Justice Y V Chandrachud, for example, applied the doctrine in the Election Case after being in the minority in Kesavananda, not because he believed in it, but more because he wanted to follow a judicial precedent. I always admired that. That’s the correct thing to do… It actually cemented it for all time. And if you see the 39th Amendment, how ghastly it was… it was monstrous. (Justice Chandrachud, who was one of the six judges in minority in the Kesavananda ruling, applied the principle two years later and was part of the majority bench in the Indira Gandhi v Raj Narain (1975) case that struck down the 39th Amendment. Passed during the Emergency, the 39th Amendment barred the Supreme Court from hearing a challenge to the election of President, Prime Minister, Vice-President, and Speaker of Lok Sabha.)

What according to you is the Basic Structure of the Constitution?

The Basic Structure is what ultimately the judges, for the time being, … consider to be the foundation of the Constitution… Of course, Parliament is supreme, there is no difficulty. So is the Court. But it is the Constitution that is supreme. Not any group of individuals. It is the document that is supreme, that’s put on the highest pedestal. That’s the very important thing which most people miss by saying that Parliament is supreme because they are all elected and judges are not elected. That’s the usual argument that is put. That makes no sense at all. What is supreme is neither the judge, neither the Supreme Court, nor Parliament. What is supreme is the Constitution and therefore, it’s as you want to interpret it. And fortunately, all sane judges… I mean god willing they are all sane and they all retire at 65! That’s why they retire at 65. So, by and large we… I see no hazard to the Constitution as framed.

Going forward, what basic features of the Constitution do you see being tested?

First is parliamentary democracy. Suppose you want to convert it into a religious…a Hindu-religious state. Answer is no. These are obvious things but nobody wants to convert it. And I’m very glad they have used it sparingly. No, Parliament is entitled to change the Constitution. You can change even fundamental rights, no doubt about it. But how you do it, when you do it, why you do it, it all becomes relevant.

The criticism that the Basic Structure doctrine is vague and subject to interpretation of judges… even the Vice President has said it.

Let them introduce whatever they want to introduce. We will see whether it is on shaky legs or firm legs. That’s where the Supreme Court mettle will come in. I have full confidence that they will never permit that doctrine to be watered down. In a given case, they may uphold the Constitutional amendment like they upheld the l03rd Constitutional amendment (EWS reservation), with two or three judges differing. You can criticise it but no one must shake the foundation. Then, it becomes an earthquake.

But Parliament itself has approved the Basic Structure doctrine. Parliament in its wisdom has proposed an amendment and passed it… that you cannot suspend, even in an Emergency… Article 20 and 21. Expressly. And Article 21, which is most important, that life and liberty cannot be taken away except according to procedure established by law and procedure established by law, now means not only procedure but even substantive law.