VP’s right on judiciary’s overreach but SC’s basic structure doctrine must stay, it’s good for robust democracy

In April 1973, a 13-judge bench of the Supreme Court in a 7:6 majority delivered the establishment’s most consequential verdict. Known because the Kesavananda Bharati case, it declared that Parliament’s right to amend the Constitution will not be unfettered. An modification can’t violate the Constitution’s basic structure or elementary structure. The aftereffects nonetheless reverberate. On January 11, Vice-President Jagdeep Dhankhar in a speech questioned the basic structure doctrine. He mentioned that the ability of the Parliament to amend the Constitution and legislate will not be topic to every other authority. In brief, primacy of Parliament is inviolable.

The basic structure doctrine arose out of the working of the Constitution over 20 years. The related article, 368, doesn’t clearly spell out the scope of Parliament’s amending energy. At first, SC held that Parliament has unfettered energy. Subsequent instances noticed the emergence of dissenting views (Sajjan Singh vs State of Punjab) and within the Golak Nath case, the bulk in an 11-judge bench held that elementary rights can’t be abridged. Finally, in 1973 got here the basic structure doctrine. It was not a bolt from the blue or usurpation of the powers of Parliament. Instead, it mirrored the maturation of a democracy.

Take away the basic structure doctrine, the legislature may conceivably knock down the checks and balances that come via the separation of powers between the legislature, govt and judiciary. That would go in opposition to the tenor of the constituent meeting debates that had creation of a robust democracy as the primary objective. Dhankhar recognized SC’s 4:1 verdict in 2015, which invoked the basic structure doctrine to strike down NJAC, for example of incorrect utilization. This paper disagreed with that verdict and shares a lot of politicians’ critiques of the judiciary. However, that doesn’t make a case in opposition to the basic structure doctrine. Instead, it factors to a necessity for the judiciary to tighten it.

The downside is that SC typically interprets the basic structure doctrine loosely. This opens the door to the judiciary to stray into domains of the legislature and govt. And that creates monumental issues. But simply as an ill-conceived legislation doesn’t undermine the primacy of the legislature in making them, problematic judicial verdicts don’t make a case in opposition to the basic structure doctrine. Many facets of judicial functioning want change. The basic structure doctrine will not be certainly one of them.


This piece appeared as an editorial opinion within the print version of The Times of India.



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