Monday, June 17, 2024

Light Theesko : Moral compass and India’s Constitution

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amid the current inharmonious relations between the Union government and the Supreme Court of India, despite the checks and balances provided in the Constitution with clear-cut separation of powers among the Legislature, Executive and Judiciary, the bold remarks of Chief Justice of India DY Chandrachud characterizing the basic structure doctrine as the North Star are welcome. The CJI’s point that the craftsmanship of a judge lies in interpreting the text of the Constitution with the changing times while keeping its soul intact is well-taken. “The basic structure of our Constitution, like the North Star, guides and gives certain direction to the interpreters and implementers of the Constitution when the path ahead is convoluted,” he said.

The CJI elaborated for good measure: “The basic structure or the philosophy of our Constitution is premised on the supremacy of the Constitution, rule of law, separation of powers, judicial review, secularism, federalism, freedom and the dignity of the individual and the unity and integrity of the nation.”

The message that the basic structure doctrine provides the moral compass for following the Constitution in letter and spirit must now be amply clear to the Centre, particularly to Vice President Jagdeep Dhankhar, who had the political compulsion to question the landmark 1973 Kesavananda Bharati case verdict that had crystallized the basic structure doctrine. Dhankhar, by claiming that the verdict had set a ‘bad precedent’, has reopened a can of worms. By positing that it would be difficult to say ‘we are a democratic nation’ if any authority (read Judiciary) questions Parliament’s power to amend the Constitution, he has sought to trash a sound doctrine that had evolved over more than three decades, thanks to towering legal luminaries of independent India.

The grouse of the Centre obviously is that the basic structure doctrine guided the apex court in setting aside several Constitutional amendments, including the one brought to prop the National Judicial Appointments Commission (NJAC) Act on the appointment of judges in the higher judiciary. Dhankhar’s assertion that parliamentary sovereignty and autonomy are quintessential for the survival of democracy and cannot be permitted to be compromised by the executive or judiciary should be seen in the present context of who is encroaching on whose territory. The ugly exchange of words between the Supreme Court and the Union government over appointment of judges to the higher judiciary mirrors enough.

The CJI highlighted the basic doctrine opportunely while delivering the Nani A Palkhivala Memorial Lecture. The CJI aptly remarked: “Nani was a true constitutionalist and dedicated his entire life to preserving the integrity of the Indian Constitution. If not for Nani, we would not have had the basic structure doctrine in India…Nani was opposed to the protectionist economic policies of the government. Nani’s fight was not simply against the economic ideology of the day, but it was also against policies which denied people from exercising their liberties.”

Recalling vividly the circumstances under which the verdict containing the basic doctrine was delivered, the CJI observed: “Palkhivala was rather troubled by the barrage of questions directed at him by all the thirteen judges. A young girl accompanied her father to Court to witness the proceedings and after the day’s session, the young girl asked her father ‘who was the young man trying to interrupt the thirteen well-dressed gentlemen?’… In the end, the hearing lasted for 66 days in the span of five months, and Palkhivala argued for the petitioners for a total of 31 days. By a thin majority of 7-6 judges, the Supreme Court held that while Parliament had the power to amend any part of the Constitution (including the chapter on Fundamental Rights), the power cannot be so exercised as to alter or destroy the basic structure or framework of the Constitution.”

Commenting on the decision in Kesavananda Bharati, Palkhivala wrote: “Logically speaking, the limit to the amending power should be that the Constitution cannot be made to suffer a loss of identity through the amending process. The identity of the Constitution is the sum of its essential features. Therefore, if the Constitution is not to suffer a loss of identity, each of its essential features has to be preserved.”

For the unversed, it took nearly three decades for the basic structure doctrine to gel. In 1951, Parliament’s power of amending the Constitution under Article 368 was held to include the power to amend Part III containing the Fundamental Rights in Shankari Prasad v Union of India. In 1965, Parliamentary supremacy and its power to amend any part of the Constitution was upheld again, with two Justices dissenting. In 1967, in a complete reversal in Golaknath v State of Punjab, the Court ruled that Fundamental Rights could not be amended by Parliament, unless another Constituent Assembly is formed.

In 1971, under the 24th Constitutional Amendment, Articles 368 and Article 13 were modified to allow Parliament to unilaterally amend the Fundamental Rights, overturning the Golaknath ruling. In 1973, in the Keshavananda Bharti v State of Kerala case, which has since become a beacon for Courts, the Supreme Court ruled that all parts of the Constitution, including Fundamental Rights, can be amended keeping its ‘basic structure intact. In 1975, under the 39th Constitutional Amendment, the election of President, Vice President, Prime Minister and Speaker was placed beyond the scope of judicial review, of course in the backdrop of Emergency.

The same year, in Indira Gandhi v Raj Narain case, applying the ‘basic structure’ doctrine for the first time, the Court struck down the Amendment. Free and fair elections were held to be part of the basic structure.  In 1976, under the 42nd Constitutional Amendment, Constitutional Amendments were protected against being called in question by any court. Parliament’s constituent power to amend was declared as limitless. In 1980, under the Minerva Mills v Union of India case, the modifications were rejected by the court, which clarified that Parliament’s power to amend the Constitution is limited by the Constitution itself.

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