Justice Vivek Chaudhary: “Is there a need to revisit the Basic Structure Doctrine?”

Introduction

Justice Vivek Chaudhary visited UPES, Dehradun for a Guest Lecture conducted by the SCLHR, a constitutional law committee of the School of Law, UPES. The Honorable Justice discussed the facets of the Basic Structure doctrine in detail during the visit.

He stated the journey from Shankari Prasad v. UOI to the Keshavnanda Bharti Judgment. He pointed out that in the period of 22 years from Shankari Prasad to Keshavnanda Bharti, the ratio of the Supreme Court changed. He then continued to discuss the development of basic structure doctrine after its inception.

“Principle of Equality is necessary for democracy to survive.”

Justice Vivek Choudhary.

Evolving facets of constitution

The Hon’ble Justice Vivek Chaudhary started his lecture by stating the meaning which Article 13 and 368 carries. He continues to define the limit and scope of both the articles. Then, he begins to define the conflict of Article 13 and 368 which led to development of basic structure doctrine.

Article 13 of the Constitution gives power to the court to declare any law void which is inconsistent or in derogation to the fundamental rights whereas Article 368 gives powers to the parliament to amend the constitution. There was conflict between both the articles. The conflict was whether the law as stated under Article 13 would cover the constitutional amendment made under Article 368.

Cases that shaped the doctrine

The first case that appear before the Supreme Court was Shankari Prasad v. UOI, where the court applied literal interpretation and stated that Amendments are not covered under Article 13. Second case was Sajjan Singh v. State of Rajasthan, where the court held the same principle that article 13 is limited to ordinary laws and not the constitutional amendments.

Further, Case of Golak Nath was discussed where the court held that fundamental rights of the constitution cannot be amended. Lastly, the case of Keshavnanda Bharti was discussed which upheld the principle of Basic Structure.

Advantages of Basic Structure Doctrine

The Hon’ble Justice Vivek Choudhary pointed out some of the advantages of Basic Structure doctrine, these are:

1. It limits and check the legislative powers.
2. Its gives new interpretation to the constitution.
3. It prevents the abuse of majority power in the parliament.
4. It helps achieving principle of equality by upholding basic ethos of democracy.

The Hon’ble Justice emphasized on emergency situation in India where rights were curtailed. The situation was so drastic and state order was in misery. For such a situation, there is need of basic structure doctrine but at that time, the doctrine failed.

The Hon’ble Justice pointed out that Telegraph Regulation Bill was passed in both the Houses of Parliament, but it never received the President Assent to becomes an Act. He pointed out that in age right to privacy we cannot think of these kinds of legislations now. All these are the advantages of Basic Structure doctrine.

Disadvantages of Basic Structure Doctrine

The Hon’ble Justice Vivek Chaudhary listed certain disadvantages of Basic Structure doctrine:

1. It is Judicial Overreach as it is not written anywhere in the constitution. Judges cannot read the constitution according to their whims and fancies.
2. The Doctrine Cannot prevent the situation raised in ADM Jabalpur Case during emergency.
3. The doctrine creates scope for unnecessary litigation.
4. Judges are not elected, they are selected. So, they should not take the power of decision making from elected candidates.
5. It is in conflict with the principles upheld earlier by supreme court. Example: Constitution is a living document.
6. It takes away power from the democratically elected government.
7. There was no certainty of Basic structure as in SR Bommai, Federalism was accepted as basic structure but when it comes to taxation, Individual states have not been given any rights.

Conclusion

It was a wonderful session on Basic Structure by Justice Vivek Chaudhary. The student at UPES posted many questions after the session which Hon’ble justice was delighted to answer. During the session, one question remains the highlight, that is related to appointment of judges post-retirement, asked his opinion by saying “You represent the Judiciary” to which he replies, “I represent the people”.

He stated that revisiting the settled principle of law is important for the law student and legal luminaries. The conclusion was that Basic Structure doctrine is a generational doctrine and it need a test of time and it can be improved and improvised by the future generation according to the need of society.

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