- As you are aware, the Constitution of India stands on three crucial pillars vis-à-vis the legislature, the executive, and the judiciary, respectively. All three pillars have clearly demarcated responsibilities with the judiciary tasked to uphold the tenets of the Constitution. The democratic form of governance adopted by the Constituent Assembly members while framing the Constitution was presented with little ambiguity to form the fundamental structures of a nascent nation. Due credit to our forefathers who left us with a Constitution which is not only strong inherently but also founded on sound principles foreseeing the potential occurrences in line with the changing times as the nation evolves. With pride, we can say that the Constitution and its three pillars have stuck to their respective responsibilities with alacrity, tenacity, and diligence.
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- However, who amongst the three pillars commands supremacy keeps cropping up often leading to one arm of the Constitution encroaching into the domain of the other. Have we not heard about judicial activism over and over again? Has the nation not witnessed the executive subjugating the Constitution itself while proclaiming the emergency in the 1970s? Now, the matter is again in the news courtesy of the Vice President and the Lok Sabha speaker expressing views on the same. Note that in April 1973, a 13-judge bench of the Supreme Court in a 7:6 majority delivered the institution’s most consequential verdict. Known as the Kesavananda Bharati case, it declared that Parliament’s right to amend the Constitution is not unfettered.
- An amendment cannot violate the Constitution’s basic structure or fundamental architecture. The aftereffects still reverberate. Recently, Vice President Jagdeep Dhankhar in a speech questioned the basic structure doctrine. He said that the power of the Parliament to amend the Constitution and legislate is not subject to any other authority. In other words, he meant the primacy of Parliament is inviolable. Note that the relevant article, 368, doesn’t clearly spell out the scope of Parliament’s amending power. At first, SC held that Parliament has unfettered power. Subsequent cases saw the emergence of dissenting views and in the Golak Nath case, the majority in an 11-judge bench held that fundamental rights cannot be abridged. Finally, in 1973 came the basic structure doctrine.
PC:Anjali Bhatia
- It was not a bolt from the blue or usurpation of the powers of Parliament. Instead, it reflected the maturation of democracy. Taking away the basic structure doctrine, the legislature could conceivably knock down the checks and balances that come through the separation of powers between the legislature, executive, and judiciary. Dhankhar identified SC’s 4:1 verdict in 2015, which invoked the basic structure doctrine to strike down NJAC, as an example of incorrect usage. The majority disagree with this verdict. However, that doesn’t make a case against the basic structure doctrine. Instead, it points to a need for the judiciary to tighten its functioning and the need to change. But the basic structure doctrine is not one of them.
