Opinion Basic question

Congress MP Shantaram Naik’s letter to Union Finance Minister Arun Jaitley — questioning the “basic structure” doctrine and asking the BJP to act against what he sees as judicial usurpation of parliamentary prerogative — is a troubling missive. The letter seeks to revive, and to stoke, anxieties that lost their edge long ago. These had to do with a question fundamental to democratic constitutionalism: Who is the final custodian of the Constitution, the Parliament or the judiciary? The “basic structure” doctrine, explicated by the Supreme Court in the landmark Kesavananda Bharati vs State of Kerala case in 1973, gave an answer: It laid down that Parliament’s power to amend the Constitution, under Article 368, is not unlimited and unfettered. Any constitutional amendment can be declared invalid by the court if it violates the “basic structure”. That is, parts of the Constitution constitute a higher set of rules which must be seen to be immune from the tyrannies and whims of transient parliamentary majorities.

To be sure, what constitutes the “basic structure” has not been explicitly defined by the judiciary — these transcendental features are to be determined by the court in each case that comes before it. It is also true that the court itself has not always been consistent or high-minded in its interpretations, and that in its own conduct, it has often invited accusations of overreach. Yet, over the years, the “basic structure” doctrine has gained wide acceptance and legitimacy. It has been seen to be the best assurance of protecting entrenched values — such as secularism, rule of law, freedom of expression — that are essential to our identity and integrity as free and equal citizens. Now, Naik’s exhortation to the BJP-led government to use its decisive majority to upend the doctrine, strikes a jarring note. It is, potentially, more subversive than that. After all, it comes in a fraught moment in the relationship between the executive and the judiciary, in which tension is building on their respective roles in the process and procedure of the appointment of judges, which has implications for the independence of the judiciary. The memorandum of procedure worked out to govern higher judicial appointments has not brought a mutually acceptable resolution. In such a moment, Naik’s intervention could be seen as disturbing advocacy of a powerful executive’s right to override the higher set of rules that help govern and preserve our constitutional democracy.

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Just as Naik’s letter cannot be read outside of its political context, it cannot be distanced from his party affiliation. Does the Congress share the view of its MP from Goa, who, incidentally, has also been chairman of the parliamentary standing committee of law? Does the Congress also believe that there must be no substantive constraints on lawmaking, and that the power to amend the Constitution must also carry within it the power to destroy its essential features? The party must answer.