What If 'Basic Structure Doctrine' Is Not There & Parliament Has Absolute Supremacy?
We examine how the Constitution, and not the Parliament, is sovereign, contrary to VP Jagdeep Dhankar's recent remarks.
Imagine if the Indian Parliament were to ban women and girls from primary and secondary school education, as well as higher education, restrict them from most forms of employment, or prohibit them from travelling without being accompanied by a male relative. This is the reality for half of the population in Afghanistan under the hard-line fundamentalist rule of the Taliban, which is taking...
Imagine if the Indian Parliament were to ban women and girls from primary and secondary school education, as well as higher education, restrict them from most forms of employment, or prohibit them from travelling without being accompanied by a male relative. This is the reality for half of the population in Afghanistan under the hard-line fundamentalist rule of the Taliban, which is taking away more and more rights from Afghan women with every passing day. But what is shocking is, even amid the tightening of this extreme misogynist ideology, the regime enjoys a great degree of support and solidarity from many conservative sections of the population. The question, therefore, is: Can years of empowerment be reversed overnight by the ruling dispensation enjoying popular support in a horrific display of the might of numbers?
Let us take the example of Iran, which is in the middle of a second violent revolution – this time, led by the traditionally disenfranchised, fighting for their rights. What began as protests against the murder of Mahsa Amini by the state-controlled morality police for allegedly not covering her head, have now mushroomed into a countrywide movement to depose the Iranian supreme leader, Ayatollah Ali Khamenei. In this backdrop, the Iranian government, which enjoys a measure of representative democracy with the popularly elected president being the second highest ranking official in the country, have announced mass executions of protesters for allegedly ‘waging a war against God’.
In the same vein, imagine if a constitutional amendment were passed in India replacing the words ‘procedure established by law’ in Article 21 with ‘procedure determined by the central government’ and the executive wing arrogated to itself the power to determine the circumstances under which a person could be deprived of their life or liberty. Would that be in consonance with our constitutional values?
Let us now turn to Iran’s largest neighbour, the Russian Federation, which made sweeping changes to its constitution in 2020, inter alia, allowing the strongman Vladimir Putin to run for two more six-year presidential terms. The institution of marriage was also strictly defined as a union between a man and a woman, in a move to undermine LGBTQIA+ rights. Several amendments were introduced vis-à-vis the Russian judiciary that had the effect of severely weakening it. This included bestowing on the president, the authority to nominate the chairperson, deputy chairperson and justices of the Constitutional Court, Supreme Court, and other federal courts. In a nationwide referendum, Russians voted overwhelmingly in favour of the package of constitutional amendments proposed by Putin, and accordingly, these amendments were signed into law. Now, imagine if the head of the government were to bulldoze through the Parliament, a power-grabbing attempt thinly veiled as a constitutional amendment, same-sex marriage were to be invalidated constitutionally, or the executive in our country were to usurp the power of judicial appointments. Would such changes, despite having received the imprimatur of the representatives of the people, help realise the full potential of the ‘living’ document that is our Constitution?
Even in vibrant democracies such as the United States of America, with its political tradition steeped in ‘freedom’, parliamentary sanction has historically been given to forced segregation of facilities and services along racial lines, prohibition of interracial marriage, denial of universal suffrage to members of the Black community, and more recently, to near-total abortion bans in conservative states. Imagine if the Indian Parliament were to delete the anti-discrimination clauses from our fundamental charter or include a proviso to Article 21 stating that reproductive autonomy would be recognised under this fundamental right only if it did not infringe the foetal right to life. The architect of our Constitution, Dr. B.R. Ambedkar tirelessly fought for the recognition of the rights of Dalits and Bahujans, who were persistently and violently oppressed and subjugated by upper caste groups. About women, he said, “I measure the progress of a community by the degree of progress which women have achieved.” Therefore, would modifications of the Constitution that give impetus to casteism or sexism, if they managed to pass the parliamentary muster, be in line with the vision of Indian society envisaged by our founding mothers and fathers?
Indian Vice President’s Remarks Against Judicial Review and Basic Structure
The Indian vice president, Jagdeep Dhankar, in his latest blow against the Indian judiciary, has questioned its power to judicially review constitutional amendments on the touchstone of the ‘basic structure’ doctrine. “We cannot have an ostrich-like stance,” he said. “I have been a soldier of the judiciary. I have the highest respect for the judiciary,” Dhankar exclaimed, “But I cannot be a party to the move to emasculate the power of the legislature.” In his scathing criticism of the judicially evolved doctrine, on the basis of which, constitutional courts in India have sought to protect the spirit and the essence of our ‘grundnorm’, the Vice President insisted that the ‘basic of any basic structure’ in a democratic society was the supremacy of the people manifesting as the sovereignty of the Parliament, which comprises of the people’s representatives. “The ultimate power is with the legislature. In such a situation, all institutions must confine to their domains. One must not make incursion in the domain of others,” Dhankar said.
One of the most influential metaphors in all of the Indian constitutional discourse is that of the ‘basic structure’ of the Constitution setting out the part of the code which is so inviolable and sacred that it is insulated from legislative whims by being placed outside the purview of the Parliament’s amending power under Article 368. However, on Wednesday, the vice president made a rash of comments, making his refusal to ‘subscribe’ to the ‘basic structure’ doctrine developed in the landmark Kesavananda Bharti case plainly known and strongly recommending that the principle be revisited, and its soundness reassessed. “Can the Parliament allow its verdict to be subject to any other authority?” the vice president asked. He has made similar remarks on two other occasions, once during his maiden Rajya Sabha speech, and again, while speaking at a public function, much to the chagrin of the apex court.
India’s Refusal to Follow British Model of Parliamentary Sovereignty
As the war of words between the executive and the judiciary intensify, let us analytically examine the correctness of the vice president’s claim of the supremacy of the parliament. In order to do this, it is crucial to understand the distinction between the Westminster model of parliamentary sovereignty and the unique Indian adaptation, which borrows heavily from both the British unitary framework, with the parliament as its centrepiece, as well as American federalism. In Sub-Committee on Judicial Accountability v. Union of India, 1991 (4) SCC 699, a Constitution Bench led by Justice Bankim Chandra Ray explained the difference as follows:
“But where, as in this country and unlike in England, there is a written constitution which constitutes the fundamental and in that sense a ‘higher law’ and acts as a limitation upon the Legislature and other organs of the State as grantees under the Constitution, the usual incidents of parliamentary sovereignty do not obtain and the concept is one of ‘limited Government’. Judicial review is, indeed, an incident of and flows from this concept of the fundamental and the higher law being the touchstone of the limits of the powers of the various organs of the State which derive power and, authority under the Constitution and that the judicial wing is the interpreter of the Constitution and, therefore, of the limits of authority of the different organs of the State. It is to be noted that the British Parliament with the Crown is supreme, and its powers are unlimited, and courts have no power of judicial review of legislation. This doctrine is in one sense the doctrine of ultra vires in constitutional law. In a federal set-up, the judiciary becomes the guardian of the Constitution.”
Centrality of the Basic Structure Doctrine in Indian Democracy
The doctrine of basic structure, arguably the most important instrument devised in Indian jurisprudential history, was developed at a time when the judiciary was severely weakened owing to a series of blows to its authority and jurisdiction, by the Lok Sabha, under the leadership of the then-prime minister, Indira Gandhi. The Supreme Court was the biggest roadblock in Gandhi’s attempt to carry out a spate of socialistic reforms, often at the expense of constitutionally guaranteed individual liberties and freedoms. The crescendo of the face-off between the executive and the judiciary, quite reminiscent of the situation today, was reached when the top court excluded all fundamental rights from the scope of amendability in the I.C. Golaknath case, triggering the twenty-fourth constitutional amendment, by which the Parliament restored to itself the undisputed authority to amend or even repeal the Constitution. Finally, in Kesavananda Bharti, while conceding to the legislature the power to amend any part of the Constitution, the Supreme Court consecrated its underlying structure, which was fundamental to its being, as unchangeable. This was in keeping with the balance struck by our constitutional framers between the rigidity of having a written constitution and the flexibility required to move with the times. The evolution of the basic structure doctrine can be understood with the help of the following infographic.
Before the Kesavananda Bharti case was decided by a thirteen-Judge Bench headed by Chief Justice S.M. Sikri, the underlying apprehension that not all constitutional amendments would necessarily have a representative character in that some could chip away at values central to the constitutional ethos of the country, was unprecedented. However, as it turned out, this apprehension was not misplaced, and the basic structure doctrine had to be pressed into service a number of times over the next decades.
Without the basic structure doctrine, the election of the highest constitutional functionaries such as the prime minister, president, vice president and the speaker of the house would have been safely parcelled up beyond the reach of judicial review. Such an effort was made by none other than Indira Gandhi when her election was set aside by the Allahabad High Court while hearing the plea of her political rival, Raj Narain who alleged electoral malpractices. This is the case that led to the darkest period in Indian history ushered in by the proclamation of Emergency in 1975. Fortunately, the Supreme Court set aside the thirty-ninth constitutional amendment and held that disputes relating to the election of such functionaries would be subject to scrutiny by the constitutional courts. Similar attempts by the government to, inter alia, exclude the newly inserted Tenth Schedule from the ambit of judicial review, confer on state governments the power to modify or annul the final order of administrative tribunals, or constitute a national commission for the appointment of judges to High Courts and the Supreme Court, were also repelled by the top court to protect the ‘basic structure’ of the Constitution.
Supremacy of the Constitution, and not Parliament
Therefore, by drafting the largest and perhaps the most exhaustive constitutional charter in the world and placing the said charter at the centre of our political life, India has demonstratively refused to walk in the steps of its colonial master. The separation of the powers of the state’s organs is one of the pillars of the Indian democratic project. The writers of the Constitution were also understandably wary of attempts by any one organ to expand its sphere of influence and power and arranged them in such a manner so as to create a web of accountability amongst themselves. While the Indian Parliament is representative in nature, it is far from the truth that the legislative and its decisions were intended to be unimpeachable. The inclusion of the provision of judicial review makes this evident. The power of judicial review, which is exercised to predominantly preserve our constitutional morality and protect the people and the country from legislative and executive excesses, has been described by Babasaheb Ambedkar as “the very soul of the Constitution and the very heart of it”. Thus, contrary to the remarks made by the vice president, the Constitution, and not the Parliament, is sovereign, and the judiciary discharges and must continue to discharge its crucial function as the ‘sentinel on the qui vive’, repelling the attacks on the Constitution and constitutional ethos, both from outsiders and insiders.