Honourable vice president of India Mr. Jagdeep Dankar's remarks on Indian judiciary once again created a controversy and dragged the concept of Basic structure doctrine into discussion. This article examines the validity of basic structure in a constitutional democracy by balancing the mandate of the people and the Constitution by which they are governed.
The concept of Basic structure of Indian Constitution is actually a judiciary creativity that makes Supreme Court of India literally supreme. It’s the fundamental values of our constitution that have to be protected to uphold the spirit of Justice. As it’s an ill defined area that give unchecked scope for judiciary to overpower the democratic spirit of the parliament, it has gone through a long way of criticism from different corners of the Indian society.
Starting from the landmark judgment of Kesavanantha bharathi vs state of Kerala, 1973 to the recent judicial review that declared NJAC unconstitutional, basic structure doctrine played an important role in Indian polity. In any democracy, there is an idealistic argument that, mandate of the people should be the ultimate. So, the question is, what if the mandate of the people went wrong or manipulated to an extend that bypass the Justice.?? Should we uphold the Justice or Democracy..?
Why we can’t define basic structure?
Indian constitution is a living document. It incorporate all the moral values of different sections of the people of this country. So, when the ‘law’ fights on the basis of principles, we cant make an objective approach to look into it. Since we can define the validity of a moral value on the basis of circumstances, defining the basic structure of our Constitution will be a self limiting exercise. As the society changes, values changes, circumstances changes and the suitability of law changes, Basic structure have to change in such a way that it can uphold the Justice. In order to find it’s application in such a broadly diversified society, a definite basic structure can not be fruitful. To uphold these constitutional principles, these has to be vague enough for the judiciary to interpret in a multi pronged way.
Inception of basic structure doctrine.
The article points out the landmark judgments through which the judiciary hinted what are the basic structures of our constitution. Then the natural question is why it’s not mentioned in the original constitution? The answer is again simple. Circumstance. While the constitution makers were drafting this document, they debated about all these issues and arrived at a conclusion that’s resulted in couple of articles that are in support of something called judicial review.
Article 372 (1) establishes the judicial review of the pre-constitution legislation. Article 13 declares that any law which contravenes any of the provisions of the part of Fundamental Rights shall be void. Articles 32 and 226 entrusts the roles of the protector and guarantor of fundamental rights to the Supreme and High Courts. Article 245 states that the powers of both Parliament and State legislatures are subject to the provisions of the constitution. Article 137 gives a special power to the Supreme Court to review any judgment pronounced or order made by it. An order passed in a criminal case can be reviewed and set aside only if there are errors apparent on the record.These provisions from the Constitution explicitly talks about the concept of Judicial review that is a base for evolution of basic structure doctrine. Especially during Indhira Gandhi Era, she amended the constitution up to a critical extend of rewriting it by editing it to suit her parliamentary authority over anything, like a dictator.
Theory of checks and balances.
When democracy takes a wrong turn to dictatorship, the justice can only prevail by encompassing constitutional values to curtail the power of authoritarianism using basic structure doctrine. Following the Indira Gandhi era, the judiciary opined some key principles like judiciary review, federalism, fair and free election, Right to life, separation of powers, sovereignty and integrity of India, secularism etc as the basic structure of the Indian constitution through various judgments. Any democratically elected government can bypass the social justice through authoritarianism that parliamentary democracy can easily justify. But the true spirit of democracy in it's ethical sense can be effective only when the aspirations of the minorities too find a place. Since the parliament as an institutions collectively reflects the party politics and it's worst forms of democratic exercises, there must be someone else to question the same as the opposition may fail in the temple of democracy. There comes the relevance of the balancing act that is to be assured by the judiciary to provide complete justice.
Judiciary activism.
The article also highlites the criticism of basic structure doctrine in the backdrop of democratic principles. It quotes former finance minister Arun jaitley who says "it's the tyranny of unelected". Basically , Courts are not meant to uphold will of the people. Though it often comes up with populist verdicts considering the public opinion, it doesn't actually have to stands for it. Public opinion may be manipulated, and most often befriended with emotional aspect of an issue that courts can't completely rely. It's ultimate aim is to uphold justice that may or may not be satisfied with public reaction as it doesn't work on the mandate of the people. So, structurally formed as undemocratic institution, the courts shall not bound to pronounce verdicts that pleases the masses.
Basic structure doctrine vs Parliamentary democracy.
So many of the politicians criticise Basic structure doctrine by saying it as a judiciary over reach. As our constitution upholds separation of Powers between Executive and the judiciary, basic structure doctrine is one way self contradictory. One can also argues that a reform passed in the Parliament thats supposed to be a reflection of the decision of the people can not be scrutinized on the basis of some vague principles. People of this opinion says, Judiciary itself is becoming a dictator by identifying themselves as the protector of fundamental rights of our citizens. When a house of mostly elected members from all parts of this country passes a bill and if judiciary qaushes it in the name of justice, its clearly an act of devalueing the citizens of this country. Such an opinion of the public can't be declared unconstitutional by a non elected body in the opinion of few judges who were not much subjected to public reactions. If Parliament turns into a majoritarian regime, atleast there can be an advocacy with respect to the spirit of democracy. But if the courts do the same without any botheration of the needs and aspirations of the people, it does more damages to the foundational principles of our constitution. When it comes to Right and wrong in a larger social perspective, true justice should seek and address the aggrieved. But judiciary activism defenestrates all such moral and ethical values when they overpowers the Parliamentary decisions. If such an act by the judiciary becomes rampant, the only option infront of the Parliament is to amend the constitution. But, if the amendment itself is declared unconstitutional by the judiciary, then Parliament is absolutely at the dead end without any other options to proceed further. This kind of situation is more an ethical dilemma than a legal tussle. Those who argues against the basic structure doctrine questions such a dictatorship of the judiciary, is also a valid argument.
The ethical solution.
Majoritarianism in the Parliament and the unhindered judiciary overreach are equally dangerous to the society. Since the people of this country respects both of these institutions and still have faith in both. That faith is what ultimate democracy means. So, Judiciary and the Parliament should act simultaneously as a checks and balance of each other to restrict themselves from going to an authoritarian or autocratic regime. So, its fine to have a conflict between judiciary and the executive or else both can be dangerous. As the Parliament have justification in the name of democracy, judiciary can also have their Basic structure doctrine.
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