Vice-President Jagdeep Dhankar believes the Supreme Court’s reliance on the ‘basic structure’ doctrine to strike down the constitutional amendment backing the National Judicial Appointments Commission (NJAC) Act is a severe compromise of “parliamentary sovereignty”. Sarthak Ray looks at the doctrine’s evolution in India
Why the ‘basic structure doctrine’ is in the news
While criticising the Supreme Court decision to strike down the NJAC Act as violative of the basic structure of the Constitution, a principle that the apex court laid down in its 1973 Kesavananda Bharati verdict, Vice-President Jagdeep Dhankar attacked the principle itself, saying that it set a “wrong precedent” and he “doesn’t subscribe” to the idea.
He further said that the dilution of “parliamentary sovereignty” by the executive or the judiciary can’t be permitted, and that if any institution, on any basis, strikes down a legislation passed by Parliament, it will “not be good for democracy” and that it would make it difficult for us “to say that we are a democratic nation”.
What the basic structure doctrine means
According to experts, the ‘basic structure doctrine’ or any such principle by another name holds that the Constitution of a country or any other founding code has certain elements that can’t be altered or overridden or eliminated, in part or fully. In India, this was derived as case law, from Kesavananda Bharati (KB), and has been a touchstone of constitutionality of several laws through judicial review.
The doctrine protects the ‘basic structure’ principles from the potential majoritarian tendencies of the legislature. In the KB ruling, the SC says, “After World War II when the disastrous effects of the positivist doctrines came to be realised, there was reaction in favour of making certain norms immune from amendment or abrogation. This was done in the Constitution of the Federal Republic of Germany.”
Basic structure of India’s Constitution
In KB, the full bench of the SC (in a 7:6 majority) held that while Parliament had both constituent powers (to make changes to the Constitution) and legislative powers, the constituent power itself was subject to substantive limits. However, there was no unanimity on what constituted the basic structure. For instance, only six of the judges held that fundamental rights were part of the basic structure. But, some individual judgments among the total of 11 (including the minority-view judgments) in the matter indicated broad “inviolable” areas.
These include the supremacy of the Constitution, republican and democratic form of government, secularism, separation of powers, federalism, fundamental rights and directive principles. The SC however ruled in KB that this list was not exhaustive. In 2015, in the NJAC verdict, the SC upheld judicial independence as a part of the basic structure.
Before and after Kesavananda Bharati: Continuing evolution
Parliament’s constituent powers have been challenged almost ever since the Constitution was adopted. Unfavourable judgments in most of the early challenges prompted Parliament to add the Ninth Schedule to the Constitution in the very first amendment of the document, to protect certain laws from judicial review. In 1952 (Sankari Prasad) and 1955 (Sajjan Singh),the SC upheld the constituent power of Parliament as total and uncircumscribed.
In 1967, in Golaknath, a 6:5 majority verdict of the SC gave rise to the germ of the basic structure by holding that the Constitution had some features at its heart that required a more exhaustive protocol than the conventional if they were to tweaked.
The government of the day again appropriated significant powers to amend the Constitution through a series of amendments between July 1971 and June 1972, against the backdrop of the nationalisation of banks and the abolition of the privy purse. These were challenged by the affected parties, and led to the KB verdict. Since then, the basic structure concept has been upheld and bolstered through several SC verdicts, notably in the Election matter (1975), Minerva Mills and Waman Rao.