On the 50th year of the “Basic Structure” doctrine that mandates the court to review and restrict Parliament’s powers to amend the Constitution’s foundational principles, former Attorney General for India K K Venugopal has raised a note of caution. Venugopal’s father M K Nambiar first argued the basic structure theory before the Supreme Court in the 1967 Golaknath case. While the argument was not accepted at that time, Justice H R Khanna applied the doctrine in the 1975 Kesavananda Bharati ruling. In the five decades that the Basic Structure doctrine has been applied, the Supreme Court has fully struck down only one amendment, the NJAC. A critic of the Collegium system of appointment of judges, Venugopal said that the Supreme Court has strayed from the Constitution on appointment of judges. Excerpts from an exclusive interview with The Indian Express: On Basic Structure I have no doubt whatsoever that in the background of the Indian polity, with various political parties exercising vast powers whenever they get into government, it is possible that they may misuse the powers by altering the Constitution in a manner which would not at all comply (with) democratic principles or even the Preamble to the Constitution. Now in which case, what happens? Would it be a dictatorship like Germany during Hitler’s regime? Therefore, it became necessary that some sort of restraint had to be placed on Parliament in regard to what it could claim to be plenary powers. Not sovereign, but plenary powers. And therefore came the evolution of the Basic Structure Doctrine. Suppose a very powerful Prime Minister wanted dynastic rule so that the republic would be converted into a dynasty, then what would happen? …Now suppose you wanted to destroy the judiciary or remove the judiciary or its powers or suppose you wanted to amend Article 32 (right to move Supreme Court by appropriate proceedings), Article 226 (power of High Courts to certain writs) and so on, which are the real provisions used against the Executive as well as Parliament. wherever they go against the government, against the Constitution. it is then that the Basic Structure theory would come into play. On the origin of the doctrine The origin was through the Golaknath case (Golaknath v. State Of Punjab) where my father M K Nambiar appeared and was the lead counsel. That was the case where the issue of the extent of the power to amend the Constitution came into consideration. From the very beginning, that is 1950 onwards, there was a tussle between the Supreme Court of India and the governments of the day .So far as the promises which had been made by the Congress even prior to the Constitution was that they would bring in land reforms and the land reforms meant that the lands of the maharajas and zamindars should be taken over and ultimately rest in the tiller of the soil. …the Supreme Court from Day 1 resisted these reforms. Because they came from a background where property was very important and for property to be taken over just with the bare compensation was something which did not gel with their philosophy and therefore, they struck it down. They struck down land reforms after land reforms and this resulted in the government in power, the Congress government, amending the Constitution from the First Amendment to the Constitution onwards.25th, 26th, 29th (amendments). They were only for the purpose of neutralising these judgements. But however, when they tried to neutralise, the courts were striking it down. Golaknath’s case held that there was no power of amendment because Article 368 started by saying the procedure for the amendment of the Constitution. In which case, where was the power according to the court? Which I think was absolutely unjustified. Because nobody would say that you have the procedure for amendment, without the power being implicit. Parliament had to again amend Article 368, which was rechristened as the power of Parliament to amend. On NJAC The problem really is this. If an amendment affects the judiciary, then the decision will be very, very subjective. And we have the example of the NJAC where, so far as this collegium system is concerned, where the judiciary step-by-step took over the power of appointment of the higher judiciary. The original Constitution, under Article 124, gave the entire power of appointment of the members of the higher judiciary to the President. In India, under our Constitution, the President means the President acting on the aid and advice of the Council of Ministers, which meant that the Council of Ministers will decide who should be considered for appointment and who should, in fact, be appointed. In fact, during the debates (in the Constituent Assembly), the suggestion was made that don’t have it as ‘consult’, have it as the ‘concurrence’ of the Chief Justice of India, but Ambedkar shot it down. Ambedkar said he (the CJI) is only one single person with all the weaknesses or strengths of a human being. Now the alternative which was given by the NJAC amendment to the Constitution was that you would have a Commission, consisting of three judges of the Supreme Court, perhaps headed by the Chief Justice, the law minister and two eminent persons. But the Supreme Court was not prepared to accept it and I had suggested an alternative. I said, drop one eminent person. Then you have three judges of the Supreme Court, one law minister and one eminent person. That is 3:2. You will always be able to put over your views. But at the same time, a member of the Commission can agree with you or not… but that doesn’t matter. They were not prepared. Concerns on the Basic Structure Now this (striking down NJAC) has happened. As a result of this, I am quite concerned about the aspects, which can be held to be part of the Basic Structure. Otherwise, I would say that there is no gross (wrong application of the Basic Structure doctrine). There are cases where courts have applied the law correctly… I would say… very much in the interest of the country. See the problem really is that the judiciary will not give up the Collegium. Therefore, I would pity the government, pity Parliament. where Parliament would not know in advance if they are thinking of a social reform, whether that social reform will stand the test of the Basic Structure or not… unless you have a procedure for advance rulings, as you have for taxation laws concerned, excise duty and so on. The result of that will be that Parliament will be groping in the dark and therefore, they will take a risk and say that look, we want this law, it is for the benefit of the people but it may…if the court.wants to interfere, then there’s nothing we can do about it. What is this independence? It’s something which has not been written on stone. For example, take the Tribunals Act, where the government for the last 10 years has been trying to pass a law for the purpose of setting up the tribunals. Now in those cases, each member, including the chairman, would have a tenure of four years. They would be entitled to offer themselves a reappointment and could go on up to the age of 67 years or 70 years. Now the Supreme Court struck this down saying you can't have four years because that affects the independence of the judiciary. It has to be five. Therefore, I ask myself the question: how on earth would one possibly say that if the tenure is for four years then the independence of the judge is gone. If it's for five years, then of course, he will be independent. I would say independence would be restricted to the appointment process, to the tenure, to the conditions of service, their salaries and so on. And taking away the powers of the judicial review will affect their independence. But otherwise, I don't think independence should be stretched and made so elastic. On judicial overreach You have to realise that it is not that the people do not rise when the occasion demands. For example, we saw after the Emergency…when Indira Gandhi lifted the Emergency and held elections, the Congress was wiped out of existence. Then with one year of Janata rule she came back to power with a great majority. How does this happen? Now that’s because the people are able to understand. There is an underlying voice which tells them what is good and what is not good. Therefore, how do the people then decide? Why does this happen? Therefore, you should to a great extent respect what Parliament does because what is said in other countries is that the judges are not elected. They don't have a constituency. Mostly they come from elitist backgrounds. They do not know the pulse of the people. They listen to a lawyer and the lawyer produces the material. The opposite party, the government, also produces material but that is totally different from Parliament with, say 500 odd members debating, having ….committees. Committees which go into the whole issue… Therefore, this is an elaborate procedure where finally people have the say. Therefore, you have to respect whatever Parliament says to a very great extent. It is only in the rarest of rare cases where you find on the face of it that what has been done is wholly unconstitutional or wholly violative… Revisiting NJAC The NJAC case is something which has to be relooked at. Even today there must be some curative petition pending. Even today the court can still say that we will drop one eminent person so that the three judges will always have a say. And the law minister by himself can't do anything. Therefore, I think the time has come when the greatest of regard has to be given to Parliament. Because you have to proceed on the basis… whether you have an absolute majority or not, that it is the people who speak (in) Parliament and that courts have to respect it.
