April 26, 2023
Good morning. In today’s either/view, we discuss whether the Basic Structure Doctrine furthers constitutionalism or squanders it. We also look at the extension of hockey sponsorship by the Odisha government, among other news.
📰 FEATURE STORY
Basic Structure Doctrine: Does it further constitutionalism or squander it piecemeal?
Yesterday, India marked the golden jubilee of the Basic Structure Doctrine (BSD), developed by the Supreme Court, in 1973, during the Kesavananda Bharati v State of Kerala ruling. It’s a landmark case not only because the homegrown doctrine was recognised later in Bangladesh, Malaysia, Pakistan, and Uganda. Its salience, and perhaps the root of the controversy, is that it establishes the constitutional supremacy of the judiciary in the inveterate tussle between the judiciary and Parliament.
Fifty years ago, it was decided that the Parliament had the authority to amend the Constitution but not its “basic structure.” Popular opinion remains split, to this day, over whether BSD is a necessary feature of constitutionalism or a flaw. While Chief Justice of India DY Chandrachud calls it the North Star of democracy, Vice President Jagdeep Dhankhar argues the contrary.
After the Constitution came into force in 1950, two central questions about the powers of the Parliament and judiciary loomed large. Were constitutional amendments within the scope of judicial review? And did the Parliament have the authority to change the fundamental rights enshrined within the Constitution? Put simply, are there any limits to the powers of the Parliament to make changes to the Constitution?
Let’s indulge in legal talk for a moment. In 1951, zamindars in the Shankari Prasad vs Union of India case challenged the First Amendment to the Constitution, which prohibited judicial scrutiny of land reform legislation. The bench, however, held up the Parliament’s power to amend fundamental rights and ruled that courts couldn’t review constitutional amendments.
But when the question was raised again in 1967 in the Golak Nath vs State of Punjab case, the court ruled that Parliament couldn’t alter fundamental rights. The then-Indira Gandhi-led government saw it as a threat to their legislative capacities. They prepared for the upcoming Kesavananda Bharati case by appointing judges expected to rule in its favour.
What followed was a nail-biting verdict.
A paper-thin seven-six majority ruled in favour of the BSD. The bench said that certain fundamental features of the Constitution, like sovereignty, democracy, secularism, and the federal character of the Constitution and the rule of law, were part of its basic structure and couldn’t be changed by Parliament. Some call it a moment of the judicialisation of politics in India.
It meant that if the Parliament enacted a law in conflict with the Constitution’s basic structure, the court could shoot it down. Now, the National Judicial Appointments Commission (NJAC) Act was introduced as the 99th amendment to the Constitution. But, in response to several petitions, the apex court struck it down on the grounds that it impinged on the judiciary’s independence, a crucial piece in the basic structure of the Constitution.
Law Minister Kiren Rijiju and Vice President Dhankhar didn’t agree. They questioned the judiciary’s motivation behind quashing the NJAC. Criticisms of the BSD followed since the principle empowered the judiciary to strike down an act that had a majority in Parliament.
It’s often argued that the doctrine was constituted at a time when it was nothing less than critical for democracy. But has it stood the test of time?
VIEW: Judicial innovation at its best
The Basic Structure Doctrine safeguards democracy and the rule of law. Some experts argue that it prevented fundamental rights from being eroded during the Emergency from 1975 to 1977 and has continued to do so since. With the NDA holding an overwhelming majority in Parliament and petitions challenging high-stakes cases like electoral bonds, CAA/NRC, and dilution of Article 370 in the court’s pipeline, it’s a no-brainer that the BSD is critical.
The doctrine strengthens the principle of separation of powers. The latter doctrine, if unprotected, remains at the whims of the government’s commitment to democratic principles while enacting constitutional amendments. BSD ensures no organ of the Indian State holds absolute power. It preserves the constitutional nature of Indian democracy and prevents it from backsliding into autocratic waters. Besides, it’s not uncommon for democracies to have substantive constraints on the government’s amending power over the Constitution.
BSD allows the Constitution to fulfil its role as an anti-majoritarian institution – because the Constitution itself is so. It spells out the rights of minorities and non-discrimination based on religion, race, caste, sex, and place of birth. Besides, a judicial review doesn’t imply judicial supremacy. The court doesn’t hold undue power over Parliament. It acts as an anti-majoritarian force to check the power of the incumbent.
COUNTERVIEW: A flawed idea
The doctrine is vague at best when it comes to describing elements that form the basic structure of the Constitution. BSD protects abstract, overarching principles. And it does so on a case-by-case basis. Without defined parameters, the constituent parts of the basic structure simply increase with time. As one of the dissenting judges in the 1973 ruling opined later, with no such formulation of the rule of law, it cannot simply be a twinkling star “up above the constitution”.
Vice President Dhankhar argues that BSD set a bad precedent and endows the judiciary with disproportionate powers over Parliament. Some experts level similar criticism against the doctrine. It allows unelected judges to amass unbridled power of judicial review. It poses a real threat to democracy because the exercise is based on an elusive criterion. For the public, it adds another layer of opaqueness to the Indian legal system.
The doctrine has been elastic not just in substance but in application too. BSD has been used to declare ordinary laws, as opposed to constitutional amendments, unconstitutional. It was only in Kuldip Nayar vs Union of India that the apex court limited its application to constitutional amendments.
- Basic structure doctrine a North Star that guides interpreters of Constitution, says CJI Chandrachud – The Print
- 50 years of Kesavananda Bharati: Why the Basic Structure matters – Bar and Bench
- 50 years ago, the SC ruled on the Constitution’s basic structure. What went on behind the scenes? – Scroll
- Golden Jubilee of the Case That Saved the Constitution – The Wire
- Arvind P Datar writes: Basic structure doctrine prevented fundamental rights being eroded during the Emergency – The Indian Express
- The Ninth Schedule Decision: Time to Define the Constitution’s Basic Structure – EPW
- As Courts Rule on Constitution’s Basic Structure, Landmark Doctrine Turns Out to Be Elastic – The Wire
- Supreme Court’s mixed record in 2021 brings its counter-majoritarian role under scrutiny – The Leaflet
What is your opinion on this?
(Only subscribers can participate in polls)
a) The Basic Structure Doctrine is a necessary feature of Indian democracy.
b) The Basic Structure Doctrine is a flawed feature of Indian democracy.
🕵️ BEYOND ECHO CHAMBERS
For the Right:
‘Kashmir’s Silence Didn’t Signal Normalcy’: Uncovering Truth Post Article 370
For the Left:
Why Rahul Gandhi needs to get out of Lutyens Delhi for a while
🇮🇳 STATE OF THE STATES
Why no FIR against Brij Bhushan?: SC (New Delhi) – The Supreme Court issued a notice to Delhi police on Tuesday in response to a petition filed by seven female wrestlers alleging non-registration of an FIR in connection with their sexual harassment charges against BJP MP and Wrestling Federation of India (WFI) president Brij Bhushan Sharan Singh. A panel of CJI DY Chandrachud and Justice PS Narasimha stated the situation warranted the top court’s involvement and directed the Delhi police to explain why no FIR was filed against Brij Bhushan.
Why it matters: Senior counsel Kapil Sibal, representing the wrestlers, stated that despite their complaints regarding sexual harassment by Singh, the authorities have not made any efforts to file an FIR against him, which is a clear breach of the statute established by the Supreme Court. It was also alleged that an FIR is not being filed because the accused WFI president is a BJP MP. Several national award-winning wrestlers have been demonstrating at the national capital’s Jantar Mantar, asking that the government make public the conclusions of the oversight body that probed Singh’s sexual harassment charges.
Guntur village wins ‘healthy panchayat’ award (Andhra Pradesh) – On the occasion of National Panchayati Raj Day festivities on Monday, Nadimpalem village in Prathipadu mandal of Guntur district was awarded the ‘healthy panchayat’ award for its collaborative hard work. Every year on April 24, National Panchayati Raj Day is observed in honour of the historic day when the Panchayati Raj System became operational in the country.
Why it matters: The 73rd Constitutional Amendment Act established the Panchayati Raj system in 1993 with the goal of bringing democracy to the grassroots and empowering people in rural regions. Lam Ratna Kumar, the Sarpanch of Nadimpalem village, praised the community and stated that it is the combined efforts of every villager that has led to a reduction in the number of instances of dengue, malaria, anaemia, and other diseases. Every month, the villagers hold awareness programs on a healthy diet to follow in order to avoid illness and prevent seasonal illnesses. In addition, ANMs and ASHA workers undertake a door-to-door survey to enquire about the health of the residents in each home and give any necessary medical help.
Odisha extends Indian hockey sponsorship (Odisha) – The state government of Odisha stated on Monday that it will extend the sponsorship arrangement for both the men’s and women’s national hockey teams (senior and junior) for another ten years, from 2023 to 2033. The state cabinet, under Chief Minister Naveen Patnaik, supported the request to prolong the sponsorship. The cabinet stated that state government funding would be an important step toward the development and expansion of hockey in India. The Odisha Mining Corporation is the direct sponsor for both teams.
Why it matters: Previously, the mining company agreed to an arrangement with Hockey India that was approved by the government for the sponsorship of hockey teams from 2018 to 2023. The government of Odisha has been a major supporter of the sport, hosting many tournaments, including two FIH Hockey Men’s World Cups. The state government has also constructed the world’s largest hockey stadium, with a maximum capacity of 20,000 spectators, at Rourkela. This will not just ensure that the sport meets its cash demand, but it will also ensure the inflow of young blood into the sport.
Three new wildlife reserves (Rajasthan) – Rajasthan’s Forest Department declared three new conservation reserves on Earth Day 2023, which would conserve the state’s uncommon and endangered species. Sorsan in Baran, Khichan in Jodhpur, and Hamirgarh in Bhilwara are the three new wildlife conservation reserves. Rajasthan now has 26 wildlife conservation reserves, thanks to these three additional acquisitions. Bisalpur Conservation Reserve in Tonk, Jodbeed Gadhwala Bikaner Conservation Reserve in Bikaner, Khetri Bansyal Conservation Reserve in Jhunjhunu, and Jawai Bandh Leopard Conservation Reserve in Pali are among the well-known conservation reserves.
Why it matters: With these additional acquisitions, the Rajasthan Forest Department has raised the conservation threshold significantly. The grasslands of Sorsan in Baran will provide a safe haven for the Great Indian Bustard, a threatened species. According to sources, there are just 200 of these extremely endangered birds left in the world. Sorsan will not only safeguard the Great Indian Bustard but also Blackbucks, Rajasthan’s state animal, whose numbers have plummeted owing to overhunting, habitat degradation, and severe deforestation. By designating these sites as national conservation areas, contractors will be required to obtain authorisation from the forest department for any activity and to follow all relevant processes.
Educational app for schools (Assam) -Ranoj Pegu, Assam’s Education Minister, has announced the creation of the state’s own school education information app. The Siksha Setu Asom Portal App will assist users in gathering detailed information on schools, students, and teachers. Pegu declared that the School Profile Updation Week will be held from April 24-30, during which time schools’ 360-degree material will be uploaded to the Siksha Setu Asom Portal.
Why it matters: The Siksha Setu Asom Portal will employ the UDISE+ (Unified District Information System for Education Plus) School Master, which will be updated on a regular basis. Pegu went on to say that the Siksha Setu App is an innovative idea that would make school administration easier for both government and private institutions. The statistics will help the administration implement the state’s new National Education Policy (NEP). The Assam government has issued the school authorities with around 53,000 tablets for this purpose. The educational app will be beneficial for both students as well as teachers to keep track of the school syllabus as well as projects and assignments.
🔢 KEY NUMBER
4 – Bebinca, malcorada mango, seven ridge okra and Agasaim brinjal are the four Goan items that will be GI-tagged in less than three months.