A towering name in India’s legal history, His Holiness Kesavananda Bharati, passed away last week. His name is synonymous with the famous doctrine of basic structure propounded by the Supreme Court, which continues to be venerated by judicial minds and is recurrently applied in significant cases.
The crux of the doctrine lies in fixing the extent of amendatory powers exercised by Parliament. The doctrine holds that there are certain implied limitations on Parliament’s amending power although these are not explicitly mentioned. It was held that Parliament cannot touch certain parts of the Constitution that are fundamental to democracy, even with the consent of electoral supermajorities at the Centre and states as also by following the procedure established by law. In the absence of any certainty as to what the “basic structure” consists of and only vague parameters to deduce the same, it is left to the wisdom of the SC judges to decide upon it on a case to case basis.
The aim of the judiciary behind propounding this doctrine was understandably to save democracy from the hands of a tyrannical few and pre-empt a dictatorial onslaught on fundamental rights. This laudable aim was defeated within two years of the judgement when Indira Gandhi pulled India into an abyss by suspending all fundamental rights. The judiciary that was expected to save democratic ideals, by applying weapons such as the doctrine of basic structure, failed the citizens completely.
The basic structure doctrine was coined in 1973 — it has been applied prospectively — by which time crucial elements of the original Constitution had already been compromised. In the intervening period of the adoption of the Constitution in 1950 and the country’s first election in 1951, several crucial fundamental rights were ravaged with a tearing urgency vide the First Amendment — the rights to property and free speech and expression were heavily diluted. Since the basic structure has now frozen Part III of the Constitution as it stood on its date of delivery, these valuable aspects of democracy cannot now be debated by Parliament, let alone be altered while the doctrine prevails in the judicial books.
Even after the birth of the doctrine, the structure of the Constitution has been regularly tweaked to accommodate judicial ideology and morality. Newer features have been constantly added to this premium list that is “basic”, giving them the immunity that the basic structure enjoys. The Right to Education was introduced by the 86th amendment in the form of Article 21A. A policy decision such as this involves significant public expenditure and has serious political and electoral ramifications such as the financial viability of running low-cost private schools. The provision may require discussions regarding certain modifications and consequent amendments to suit the country’s changing needs. However, its position in the Fundamental Rights chapter has placed it out of Parliament’s reach.
The amendment of Article 15 in 2006 was another major jolt to the Fundamental Rights chapter that surprisingly passed the Supreme Court’s basic structure review. The introduction of Article 15(5) necessitated even private unaided educational institutions to implement reservations. However, it exempted minority institutions, even if government-aided, from the policy. This was certainly not the intention of the framers of the Constitution. All this begs the question: Which static constitutional principles is the basic structure doctrine trying to protect when the Constitution has been amended 104 times?
The Court fairly recently relied on the basic structure to strike down the 99th constitutional amendment act, which sought to set up a National Judicial Accountability Commission to replace the appointment of judges by the Collegium system. This, despite the Bill being passed by two third majorities of both Houses of Parliament and 20 state legislatures
The doctrine has put the judiciary in the exact position of unlimited power that it sought to prevent Parliament from occupying. It is certainly important for the Constitution to have certain non-negotiable principles but the same must be narrow and comprehensively identified. In the quest to protect democracy from the hands of elected parliamentary representatives, it is unacceptable to place it entirely in the hands of an unelected judiciary.
This article first appeared in the print edition on September 22, 2020 under the title ‘Let’s Define The Core’. The writer is a Supreme Court advocate
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