'Democracy Has Nowhere Collapsed Due To Judiciary Overprotecting Human Rights' : Arvind Datar Defends Basic Structure Doctrine

While delivering the 19th Justice P. D. Desai Memorial Lecture on the topic 'Fifty Years of Basic Structure - Judicial Overreach or Constitutional Necessity', Senior Advocate Arvind Datar on Saturday said that the basic structure does not act as a stumbling block or thwart an elected government's proposal for social reform. He also said that the Supreme Court has never come in the way of social reform by using the basic structure doctrine. During his lecture, Mr. Datar also said that history does not have one example where a democracy has collapsed because of judiciary overprotecting the human rights of its people.   

At the beginning of the lecture, Datar mentioned that he chose the topic given the controversy which basic structure doctrine has created recently. It may be recalled that Vice President Jagdeep Dhankhar had created a furore by questioning the basic structure doctrine and by saying that the Kesavananda Bharti judgment set a bad precedent for diluting the supremacy of the Parliament.

Datar divided his lecture into four parts.

Firstly, what led to the basic structure doctrine in 1973.

Secondly, what was the formulation of the basic structure?. What does it mean?.

Thirdly, how was it applied - what was its role in saving democracy?

Finally, is it really a stumbling block? Does the basic structure doctrine require revisitation? Has the Supreme Court gone wrong?

Speaking about the events that led to the Keshavananda Bharati case, Datar said, “Right from the start of the constitution, the series of land reform legislations were struck down by the high courts mainly on the ground of Article 31. These judgments threatened to derail the entire process of agrarian reform. Therefore we had this proposal to have a IX Schedule and Article 31B so that anything that was a part of IX Schedule would be insulated from challenge. Fast forward to 15 years, in 1965, the 17th Amendment was passed which inserted 44 land reform laws in IX Schedule. This was challenged in Sajjan Singh. Earlier in Shankari Prasad (AIR 1951 SC 458), Chief Justice Patanjali Shashtri made it clear the the power of the parliament to amend the constitution could not be trammelled with.”

Referring to the Sajjan Singh judgment, Datar said, “In Sajjan Singh (AIR 1965 SC 845), Justice Hidayatullah and Justice Mudholkar sounded the words of caution or warning for the first time. They were not technically dissenting judgments because they upheld the amendment that was challenged, but they sounded the words of caution for the first time.”

Datar added, “Justice Hidayatullah said that fundamental rights are not the play things of the majority while Justice Mudholkar said in his judgment, ‘Are there not certain basic features of our constitution that cannot be amended’. He used the word basic features thrice. He also asked ‘What are the essential features?’ And answered by pointing to the Preamble. He said that our Preamble consists of the essential features.”

"Then came Golaknath (AIR 1967 SC 1643) two years later which went to another extreme. Bank Nationalisation Case and the Privy Purses Case came in the years to follow before Keshavanda Bharati Case," Datar added. 

Datar then discussed the Keshavananda Bharati Case (AIR 1973 SC 461). He said, “Four amendments (24th, 25th, 26th & 29th) were under challenge in Keshavananda Bharati. What is interesting is that all these amendments were upheld. So in Keshavananda everything up for challenge went in favour of the government, except second part of Article 31C.”

While referring to the judgment of Justice HR Khanna in Keshavananda, Datar said, “Justice HR Khanna’s judgment (specifically para 14.26) was the Lakshman Rekha that separated democracy from dictatorship in the years to come. Justice HR Khanna discarded the will of the majority. He said that the essence of a constitutional democracy is that the minority is also protected by the constitution. All these arguments these days of will of the majority was debunked by Justice Khanna in his judgment.”

Datar further added, “It is important to note that the government of the day never accepted basic structure. There was a clumsy attempt to review the basic structure. 13 judges assembled to review Keshavananda and none of them knew what basic structure was…but since it later became clear that nobody had asked for a review, the bench was dissolved.”

There is also a Jurisprudential basis for basic structure

Datar said, “In a written constitution, the legislature, the executive and the judiciary are delegates. They have been delegated powers by the Constitution. Just like an agent in the Principal Agent Theory cannot go against the Principal, these delegates cannot go against their mother document i.e. the Constitution. Once there is a written constitution, a delegate cannot destroy the essential features of the constitution. That’s the jurisprudential basis of this doctrine.”

Datar then gave an example to show how the basic structure protected democracy from collapsing in the country during the emergency. He said, “Because of the basic structure in place, when the emergency came and 39th Amendment was passed, which immunised the election of the prime minister and president from judicial review, the Supreme Court held it unconstitutional as violative of basic structure. So you could say that no body is above the law because of the basic structure.”

Datar then said, “Those who want to do away with the basic structure, go home and read the 42nd Amendment. Read it’s clauses. It was the worst of all. It made judicial review almost impossible.”

Referring to the cases of Indira Gandhi (AIR 1975 SC 865), Minerva Mills (AIR 1980 SC 1789), Sambamurthy (AIR 1987 SC 663), Kihoto Holohan (AIR 1993 SC 412), L. ChandraKumar (AIR 1990 SC 2263), IR Coelho (AIR 2007 SC 861), etc., Datar said, “I ask simple question to those who want to do away with basic structure? Which proposal that an elected government wants to do is thwarted or interdicted by the basic structure? Give me one example.”

Referring to the NJAC Case, Datar said, “In NJAC, it was an unworkable principle. Just because it was struck down does not mean you say do away with basic structure and attack the Supreme Court saying that it is against the will of the people. Redo the law, bring it again. SC has never come in way of social reform. I am puzzled by critics who want to say you want to revisit this doctrine.”

“Which part do you want to revisit? Are you trying to say equality is not basic structure?Right to speech is not basic structure?Judicial review is not basic structure? What are you trying to say? Which part of basic structure do you want to be removed? I don't understand,” Datar added.

Datar ended his lecture by stating, “Recorded history does not have one example where a democracy has collapsed because of judiciary overprotecting human rights. But no democracy has survived where the executive power does not have adequate checks. For a republican democracy, if it has to be in Amrit Kaal, then most important Saptarishi is the rule of law. The most important pillar of rule of law is written constitution. Most important pillar of written constitution is the basic structure.”