Come April and it will be 50 years since the Supreme Court of India delivered its judgment in Kesavananda Bharati v State of Kerala. The judgment is widely recognized as a milestone in the history of India. Holding that Parliament’s power to amend the Constitution was not absolute, that any change damaging the basic structure of the document would be declared void, it was understood that the Court had failed to preserve the essence of our republic. has helped.
In the years since the judgment – if not immediately afterwards – its importance has been recognized by successive governments. During this time, most criticism of the theory has been limited to the way it is implemented rather than its validity. But last week, India’s Vice President Jagdeep Dhankhar launched a barrage of attacks on the Supreme Court, questioning the veracity of the verdict. As we are with far larger issues of civic concern, this debate could well be considered tiresome, if only the arguments against the decision were not part of a concerted effort to belittle the importance of the judiciary.
collegium as a target
During the last few months, not a single day passed when one member of the political executive or the other condemned the Court for its apparent excesses. Much of this criticism is aimed at the functioning of the collegium – a body of senior judges that makes binding recommendations on appointments and transfers of judges. The Union minister for law and justice, Kiren Rijiju, and in fact Mr Dhankhar, have repeatedly cast doubt on the court’s decision in 2015, in which it quashed efforts to replace the collegium with the National Judicial Appointments Commission (NJAC). With the Vice President’s indictment against Kesavananda, this criticism has now become sharper.
In his first address to the Rajya Sabha in December 2022, Mr. Dhankhar claimed that the dismantling of the NJAC has no parallel in democratic history. A “duly valid constitutional prescription,” he claimed, “has been judicially undone.” Speaking at the 83rd All India Presiding Officers (Legislative Speakers) Conference in Jaipur, Rajasthan on 11 January, he said that “in a democratic society, the core of any infrastructure is the supremacy of the people, the sovereignty of the Parliament…who has the ultimate power”. Legislature is there. Legislature also decides who will be in other institutions. In such a situation, all institutions should remain confined to their own sphere.
Mr. Dhankhar then escalated his criticism by doubting the validity of the basic structure theory. He said, “The correctness of the view of the Court has to be considered…Can Parliament allow that its decision will be subject to any other authority?” I said this in my first address after assuming the office of the Chairman of Rajya Sabha. I have no doubt about it. This can not happen.”
To be sure, genuine criticism of both the functioning of the Collegium and the Court’s decision upholding the legitimacy of the body should be welcomed. But given that the government, as Mr Rijiju confirmed in Parliament last month, has no plans to implement any systemic changes in the way judges are appointed, and given that the government itself has sought transparency in the process The current impeachment is, at its best, unprincipled and, at its worst, an attempt to erode the autonomy of the judiciary. It is likely that the latter is evident from the fact that the Vice President has now escalated his condemnation to a point where his warnings are reserved not only for the collegium but also for the regime in Kesavananda.
foundation of the constitution
If we begin with the initial premise that the Constitution of India as originally adopted consisted of a set of principles which together gave it an identity, we shall see that the reason for the Basic Structure Doctrine is not difficult to understand. On any rational reading of constitutional history, it can be seen that the Constitution is the product of a collective vision. This vision was built on distinct, if interlinked, ideals: among others, that India would be governed by the rule of law, that the structure of our governance would be based on Westminster parliamentarism, that the legislature, executive and judiciary There will be powers. be separate, that the courts would be independent of the government, and that our states would have absolute power over defined areas of governance.
Now, ask yourself the following question: What happens when an amendment to the Constitution damages one or more of these principles in a way that changes the face of the Constitution? Will the constitution remain the same constitution that was adopted in 1950? Should Parliament amend the constitution to replace the Westminster system with a presidential style of governance, will the character of the constitution be preserved? Or consider something more radical: can Parliament, through amendment, abrogate the right to life guaranteed in Article 21? Will this not result in the creation of a document of governance which is no longer the “Constitution of India”?
In considering questions of this nature the majority in Kesavananda found that the German professor Dietrich Conrad’s address to the Banaras Hindu University, Varanasi in February 1965 had much in common. There, Konrad pointed out, that “no revising body organized within a constitutional scheme, however unlimited its power may be, cannot by its structure alter the fundamental pillars supporting its constitutional authority”. Is”.
on ‘amendments’
As the court later explained in Minerva Mills v. Union of India (1980) – and incidentally at stake was the very existence of the idea that fundamental rights are inviolable – “Parliament is also a creature of the Constitution”. Therefore, it can only have such powers as are expressly vested in it. If those powers were viewed as unlimited, Parliament, the Court found, “would cease to be an authority under the Constitution”; Instead it would “supreme over it, as it would have the power to change the whole constitution including its basic structure”. In other words, the principle that Parliament is prohibited from altering the essential features of the Constitution is rooted in the knowledge that the Constitution, as originally adopted, was built on a sensible moral basis.
On this construction, it is possible to see the Basic Structure Doctrine as implicit in reading the Constitution as a whole. But it is also reducible, as Justice HR Khanna wrote in his controlling opinion in Kesavananda, through an interpretation of the word “amendment”. The dictionary defines “amendment” as meaning “a minor change or addition designed to improve a text”. As Justice Khanna observed, when the Constitution which emerges from a process of amendment laid down in Article 368 is not merely a Constitution in an altered form, but a Constitution devoid of its basic structure, the process initiated is a Only amendment does not remain.
Since its decision in Kesavananda, the Supreme Court has identified several features that are immutable. There is no doubt that on occasion, these characteristics of the Court have been interpreted inconsistently. But to suggest that the basic structure doctrine is disallowed in itself is to leave the Constitution at the whim of the legislature. When taken to its extreme, accepting the claims of the Vice President would mean that, in theory, Parliament could abrogate its powers and appoint a person of its choice as the country’s dictator . Consider the consequences.
Suhrith Parthasarathy is an advocate at the Madras High Court.