16 Sep 2023 9:56 AM GMT
The basic structure doctrine has achieved constitutional permanence not only in India, but also in six other nations globally that have both acknowledged and embraced the principle of placing a restraint on the legislative power of constitutional amendment, renowned Indian lawyer Fali S Nariman, Senior Advocate, said on Friday. He also urged people to maintain faith in the overarching integrity of the higher judiciary as an institution, even though occasional concerns may arise regarding specific judgments handed down by individual Supreme Court judges –
Nariman was delivering a keynote address at the 2023 Ram Jethmalani Memorial Lecture, in which he explored the significance of the basic structure doctrine within India’s constitutional framework. The event, organised by the Sunday Guardian Foundation, was presided over by Chief Justice of India DY Chandrachud. Law minister Arjun Ram Meghwal and Attorney-General for India R Venkataramani were the guests of honour. On the panel debating whether the basic structure doctrine has served the nation well were Nariman, former Chief Justice of India Dipak Misra, Thuglak editor S Gurumurthy, and senior Supreme Court lawyer Shyam Divan.
During his speech, Nariman highlighted how the basic structure doctrine, which placed restraints on Article 368 of the Constitution – the sole article dealing with substantive constitutional amendments – were intrinsically tied to an effort by courts worldwide to safeguard democratic institutions and ‘serve the nation well’. In this connection, he also outlined the doctrine’s evolution, starting from its inception in the landmark 13-judge-bench Kesavananda Bharti judgment of the apex court and tracing its development to the present day. He spoke about the two instances where an attempt was made by the Supreme Court to doubt this historic precedent. One of these attempts was in November 1975 when the-then chief justice AN Ray constituted another bench comprising 13 judges to reconsider the ruling’s correctness –
In 2007, another attempt was made in IR Coelho to doubt the basic structure or essential features doctrine. A bench of nine justices, however, unanimously reaffirmed the doctrine. Consequently, it has now acquired a place of permanence in constitutional adjudication itself. He also pointed out that not only had it gained in importance in India, but has also been acknowledged and embraced by six nations globally: Bangladesh, Pakistan, Uganda, Israel, Malaysia, and Belize in Central America.
Interestingly, Nariman also argued that the Indian Parliament itself had endorsed the basic structure doctrine by enacting the 44th constitutional amendment of 1978 which expressly declared that the fundamental right against self-incrimination (Article 20) and the right to life and liberty (Article 21) cannot be suspended even during the proclamation of an emergency. Nariman insisted that this declaration, coming in the wake of the lifting of the internal emergency imposed by the Indira Gandhi-led government in June 1975, was an essential recognition of the basic structure doctrine by the legislature itself –
While tracing the doctrine’s application in India over the past five decades, Nariman pointed out that the basic structure doctrine has been invoked sparingly by the Supreme Court. Out of 22 reported cases challenging constitutional amendments on the basis of this doctrine, only seven have seen provisions being struck down, highlighting the court’s circumspection. 15 reported cases have upheld the validity of challenged constitutional amendments. To offer a contextual perspective on the frequency with which the apex court has invoked this doctrine, Nariman also highlighted the number of times the Constitution has been amended since 1950 –
Whenever the basic structure doctrine has been invoked by the Supreme Court to strike down a constitutional amendment, it has always been on the principle of good judicial governance, and not ‘interfering’ judicial governance, the senior lawyer asserted. In aid of this contention, Nariman drew support from renowned jurist Ronald Dworkin’s theory. Dworkin noted that judges, through their decisions, contribute to the ongoing interpretation and evolution of the constitution, acting like ‘partners’ with the framers of the original constitution –
Nariman highlighted India's incorporation of the ‘Hercules technique’ of constitutional adjudication through Article 142, which empowers the Supreme Court to do 'complete justice' –
It is this imperative to do complete justice that has led the Supreme Court, at critical junctures in history, to deal with parliamentary excesses by invoking the basic structure doctrine. In illustration, Nariman spoke about the 1975-77 internal emergency, when the Indian Parliament introduced clauses attempting to exclude judicial review of constitutional amendments –
On veteran lawyer Ram Jethmalani, in whose honour the eponymous lecture series was organised, Nariman said at the outset of his speech –
At the end of his speech, Nariman remembered Ram Jethmalani again, whom he referred to ‘a superb advocate, a great maverick, and my friend’. While delivering his concluding remarks, Nariman linked the continued relevance of the basic structure doctrine with Jethmalani’s enduring legacy, observing –