IIt is well known that parliamentary legislation is subject to two limitations under the Constitution of India. A judicial review is the power of constitutional courts to review a law for possible violations of a fundamental right. The second is that any amendment to the Constitution should not have the effect of destroying any of its essential features. While the first limitation is laid down in Article 13, under which laws inconsistent with or in derogation of the fundamental rights are void, the second limitation is based on the ‘Basic Structure’ doctrine developed by the Supreme Court. Remarks of Vice President Jagdeep Dhankhar inquiry basic structure theory proposed in milestone Kesavanand Bharti Case (1973) does not reflect the correct position of law. In his view, the doctrine of basic structure usurps parliamentary sovereignty and goes against the democratic imperative that the elected legislature should reign supreme. His particular concern seems reasonable: that the Supreme Court stalled National Judicial Appointments Commission, to appoint judges to the superior courts in the country, by repealing the relevant amendment of the constitution and a parliamentary law to give effect to it. But it is hard not to see his attack on the basic structure doctrine as part of an ongoing backlash against the judiciary and as part of its complaint that it does not have enough authority in appointing judges.
The idea that the doctrine of basic structure undermines parliamentary sovereignty is absolutely wrong. Parliament is sovereign in its sphere, but it is still bound by the limits imposed by the constitution. Mr Dhankhar seems to have a problem with any sort of limit on Parliament’s jurisdiction to amend the Constitution. Certainly, he could not forget that the doctrine of basic structure had helped protect the Constitution from being weakened by the misuse of the parliamentary majority. The main objective of the doctrine is to ensure that some of the basic features of the Constitution are not phased out of existence. It has only been implemented in a small number of cases to nullify the amendments, but many others have survived infrastructure challenges. Parliamentary majorities are transient, but essential features of the Constitution such as the rule of law, the parliamentary form of government, the separation of powers, the idea of equality, and free and fair elections must be permanently protected from legislative redundancy. It may be open to a new Constituent Assembly to come up with another constitution that changes these basic concepts, but a legislature constituted under the current constitution cannot be permitted to change its basic identity.