Introduction: A Struggle for Constitutional Supremacy
After independence, India has repeatedly encountered instances of intense conflict between its vital democratic institutions. A notable episode in this ongoing saga was the power struggle between the judiciary and the parliament, which escalated dramatically during the mid-1970s. Against the backdrop of a relentless battle for constitutional supremacy between judiciary and parliament, the Supreme Court issued a decision on April 24, 1973.The ruling established the Doctrine of Basic Structure, that is arguably the most undemocratic in its history which can be viewed as an unconstitutional usurpation of democratic authority from the Indian Parliament. This decision not only altered the balance of power but also raised critical questions about the fundamental principles upon which India’s democracy is built, provoking huge controversy and necessitating doctrinal expositions to figure it out. Some of the contentious issues include illegitimacy, anti-democracy, judiciocracy, counter-majoritarianism, anathema to popular sovereignty, non-textual and abstract formulation, and more.
Evolution of the Doctrine
Professor Dieter Conrad, drawing from his insights and possibly inspired by Germany’s experiences with radical constitutional amendments during the Weimar regime, is responsible for the genesis of the basic structure doctrine. The Doctrine of Basic Structure, as we understand it today, has evolved through landmark judicial decisions, none more pivotal than the Kesavananda Bharati case (1973). Prior to Kesavananda Bharati, the Golak Nath case (1967) laid the groundwork by asserting that fundamental rights could not be amended by Parliament. However, Kesavananda Bharati introduced the concept of the basic structure, significantly altering the landscape of constitutional law.
The most important decision made by the court, determined by a razor-thin 7:6 margin, laid down that while Parliament had the power to alter any component of the Constitution, it could not use this power to alter or eliminate the Constitution’s “fundamental structure or framework.” To put it another way, the Supreme Court claimed that the term “amendment” did not include changing the Constitution to the point where it loses its essential character which is being decided by it. The court held that all constitutional modifications made following the Kesavananda decision must pass through the “basic-structure filter” mandated by the Supreme Court. The court empowered itself to judge the constitutionality of amendments and revoke any that compromised the essential features of the Constitution usurping the Parliamentarian Democracy.
The Doctrine’s Absence in the Constitutional Text:
It is important to recognize that the Doctrine of Basic Structure finds no explicit mention in the language of the Indian Constitution. It opposes the original intent of the Constituent Assembly and amounts to an unauthorized rewriting of the Constitution. In essence, the doctrine is more rooted in the spirit of the Constitution rather than its literal text. The Doctrine of Basic Structure takes significant liberties with the constitutional text, effectively granting the judiciary powers that are not explicitly granted in the Constitution usurping the Parliamentarian power. The Golak Nath case is often cited as having more textual support in the Constitution, as it directly dealt with the question of amending power and constitutional amendments.
In Golak Nath, the Supreme Court asserted that fundamental rights were beyond the reach of Parliament’s amendment powers. This decision was grounded in the literal reading of Article 13, which defines ‘law’ to include “laws in force,” thereby subjecting constitutional amendments to judicial review. On the other hand, Kesavananda Bharati invoked a more indirect route by deriving the power to review constitutional amendments from the basic structure doctrine. The court held that constitutional amendments would be considered ‘law’ under Article 13, thus subject to judicial review if they violated the basic structure. Such judicial audacity, such as in Kesavananda, is a damage to the very nature of the democratic principles and inclined towards oligarchy, where a small segment of society rules.
Challenges to Parliamentary Sovereignty:
Parliamentary sovereignty and autonomy are important for the survival of democracy and cannot be permitted to be compromised neither by executive nor by judiciary. The Doctrine of Basic Structure has evolved from a substantive limit on the amending power of the parliamentarian members into a general restriction on democratic conduct. Courts have invoked the doctrine in challenges to the constitutionality of ordinary conduct based on this unconstitutional doctrine which opposes the original intend of the Constituent Assembly. Although some authors have argued that doctrine is supported by textual constructs , the link between the constitutional text and the basic structure doctrine is very remote. Indeed, the doctrine has very little to do with what is written in the Constitution.
In representative form of democracy, democracy is “power of the people”: a way of governing which depends on the will of the people. Democracy, then, it is not oligarchy, where a small segment of society rules. Democracy doesn’t recognize east or west; democracy is simply people’s will .
In an elected representative system of democracy people after considering their wills and needs, elect the parliamentarian representatives whereas judiciary is a self-appointed body which is not responsible to the people. So, in a representative form of democracy, Parliamentarian Supremacy is the best way to protect the democratic principles and maintain the very nature of the democracy. But in current scenario Indian Supreme Court has the final say on what form of our constitution takes at any given point of time, thus giving the Supreme Court the ‘custody of the constitution’ and establishing supreme court’s supremacy in the realm of the interpretation of the Constitution. Which is against the democratic nature of governance and a damage to the representative form of democratic principles.
In a democratic system, elected representatives in the Parliament are expected to reflect the will of the people. However, when a doctrine such as the basic structure gives an unelected judiciary the power to override or review decisions made by elected representatives, it raises concerns about democratic legitimacy. This doctrine has led the judiciary to usurping on parliamentarian power. All of this labour was aimed at answering a single question: Does Parliament have the unrestricted right to amend the Constitution? On a simple reading, Article 368 did not restrict Parliament’s ability to change any provision of the Constitution. Nothing barred Parliament from removing a citizen’s right to free expression or religious freedom.
It is very difficult to say what these lofty principles constituting the basic structure really mean. The only certainty is that judges will be free to mould the ‘basic structure corpus to emasculate any constitutional amendment that strikes at the ‘spirit of Indian democracy’. It is not the Supreme Court which has to decide the restrictions on the amendment power of the constitution as it is subjective that Parliament’s power to amend is not limitless and is always coextensive with that of the people. Therefore, the Supreme Court should refrain from overstepping its boundaries by establishing doctrines that elevate its authority above that of the parliament.
Counter-Majoritarianism
The most significant denunciation of the Doctrine of Basic Structure is that it is counter-majoritarian. The term “counter-majoritarian” refers to actions or decisions that run counter to the will of the majority. Critics argue that the doctrine disrupts the democratic balance of power by granting significant authority over constitutional amendments to the Supreme Court, an unelected and self-appointed body. This charge has profound implications for the functioning of Indian democracy. In a democratic system, elected representatives in the Parliament are expected to reflect the will of the people. However, when a doctrine such as the basic structure gives an unelected judiciary the power to override or review decisions made by elected representatives, it raises concerns about democratic legitimacy.
Rethinking Basic Structure
A significant matter arises, necessitating a re-evaluation of the Doctrine of Basic Structure: How can the basic structural doctrine be properly destroyed? As so will restore the true democratic principles by placing representative parliament above judiciary. Its breakup is essential as people’s representative democracy cannot be controlled by judiciary over parliament. Doctrine of Basic Structure, by its very essence, resists being overruled through the legitimate exercise of legislative power. The only alternative avenue for its dissolution would be through extra-constitutional means, a course of action fraught with uncertainty and potential peril. Scenarios appear highly probable, particularly in the foreseeable future to protect the democratic principles. we must contemplate the urgency of dissolving the basic structure doctrine, as it holds the key to reshaping the legal landscape and safeguarding Indian democracy.
Conclusion
For the first time in the court’s history, the judges gave a summary of their decision, which Justices A.N. Ray, K.K. Mathew, D.G. Palekar, M.H. Beg, and S.N. Dwivedi, refused to sign as it was inaccurate and they collectively believed that Parliament had unrestricted authority to amend the fundamental rights. The Doctrine of Basic Structure conveys the concept that amending the Constitution is not a task easily accomplished with a simple parliamentary majority; instead, it mandates approval from the Supreme Court. It elevates the judiciary to a higher plane. The courts’ robust underpinning on the doctrine that puts ‘an embargo or a limit upon the parliamentary supremacy’ . Parliament’s power to amend the Constitution is a limited power and it cannot be enlarged into absolute power, this is an absolute attack to the democratic nature of government. Through the jurisprudence of the basic structure doctrine, the Supreme Court has not only affirmed the supremacy of the judiciary in constitutional adjudication but has also elevated its authority to a level surpassing that of the parliament. Democratic form of government does not subscribe to the idea that the judiciary can strike down amendments passed by the legislature on the ground that they violate the ‘basic structure’ of the Constitution as in true sense Doctrine of Basic Structure is against the basic structure of Constitution.
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