Day 5 – Q 2. The ‘basic structure’ doctrine has gone a long way in ensuring that the State doesn’t circumvent the implicit foundational principles enshrined of the constitution. Critically comment

2. The ‘basic structure’ doctrine has gone a long way in ensuring that the State doesn’t circumvent the implicit foundational principles enshrined of the constitution. Critically comment

‘मूल संरचना‘ का सिद्धांत यह सुनिश्चित करने के लिए एक लंबा रास्ता तय कर चुका है कि राज्य संविधान के निहित मूलभूत सिद्धांतों को दरकिनार नहीं कर सकता। समालोचनात्मक टिप्पणी करें

Demand of the question:

It expects students to write about role played by basic structure doctrine in ensuring implicit foundational principles of constitution in state action along with limitations of basic structure doctrine in such role.

Introduction:

Basic structure doctrine as evolved in the Keshavananda Bharti case (1973) seeks to resolve a legal conundrum which arises out of the interplay between those provisions of the Constitution which guarantees the fundamental rights and those which enable the Parliament to amend the Constitution.

Body:

There is no such exclusive definition of basic structure given by the judiciary. Judicial approach has been on case to case basis to define what basically includes in the doctrine of basic structure.

Role of Basic structure doctrine in protection of founding principles of Indian constitution: 

• This doctrine has an anti-majoritarian flavour and is of prime importance as it prevents the Parliament from abusing its majoritarian power. This doctrine protects our basic rights and every acts of the Parliament is now subject to this doctrine, and puts a full stop on the unconstitutional Constitutional amendments. 
• Judiciary came forward with this theory of ‘implied limitation’ in the form of basic structure that the Parliament can amend whatever it wants to, but cannot amend the basic structure of the Constitution as Article 368 itself says that the Constitution shall stand amended in accordance with the Bill. 
• Minerva Mills (1980) case observed that the Indian Constitution is founded on the bedrock of the balance between Parts III (fundamental rights) and Part IV (directive principles). To give absolute primacy to one over the other is to disturb the harmony of the Constitution. This harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution. 
• The rule of law and judicial review was held as basic structure in Waman Rao(1981), Sampath Kumar (1986), and Sambamurthy ( 1986) cases. Effective access to Justice is part of the basic Structure, according to the ruling in Central Coal Fields case(1980). 
• In Kihoto Hollohon (1992), the Supreme Court has declared that democracy is a basic feature of the Constitution and election conducted at regular prescribed intervals is essential to the democratic system envisaged in the Constitution. So is the need of protect and sustain the purity of the electoral process that may take within it the quality, efficiency and adequacy of the machinery for resolution of electoral disputes.
• Bommai case (1994) have observed: Democracy and Federalism are essential features of our Constitution and are part of its basic structure. In the same case, the Supreme Court has ruled that secularism is a basic or an essential feature of the Constitution.
• In M. Nagraj v. Union of India case (2006) the court observed that the amendment should not destroy Constitutional identity and it is the theory of Basic Structure only to judge the validity of Constitutional amendment. Doctrine of equality is the essence of democracy accordingly it was held as a Basic Structure of the Constitution.
• In I. R. Coelho v. State of Tamil Nadu (2007), the Supreme Court applied this doctrine and held that: All amendments to the Constitution made on or after 24th April, 1973, even though an Act is put in the Ninth Schedule by a Constitutional amendment, its provision would be open to attack on the ground that they destroy or damage the Basic Structure if the fundamental right or rights taken away or abrogated pertains or pertain to the Basic Structure.

However, this doctrine is not the result of an extra judicial effort but what actually led was the attempts which were made by the Parliament many times to bring changes in the Constitution in exercise of its constituent power, then only judiciary came forward with this theory of ‘implied limitations’ in the form of basic structure that the Parliament can amend whatever it wants to, but cannot amend the basic structure of the Constitution. 

Limitations of basic structure doctrine in protecting foundational principles:

• Basic structure doctrine not always helped to ensure constitutional founding values as it acted as shield to resist judicial transparency and accountability in the name of independence of judiciary due to which judiciary remains accountable to none but themselves.
• Basic structure doctrine remains ineffective to reduce threats to federalism despite of S. R. Bommai judgement of 1994. Though use of article 356 has reduced it has not ended altogether. It is often circumvented by using the institution of governor to create troubles for state governments, which defeats the founding value of constitution. 
• Pressure on judiciary itself is increasing, unprecedented press conference of judges couple of year back, appointments of judges after retirement increases questions of integrity of judges, which also goes against the separation of power as basic feature.
• Despite of parliamentary democracy being one of the principles of basic structure, there is consistent decline in the importance of parliament as number of bills referred to the standing committee drastically reduced in 16th Lok Sabha and further in 17th Lok Sabha. It is true that parliamentary structures remain intact formally but on weak grounds.

Day by day it is becoming difficult to maintain basic structure doctrine as check on the instincts of majoritarian executives and legislatures. Recent laws like Citizenship amendment act questions secular characteristics of Indian constitution however it remains sub-judice issue.   

Conclusion:

Basic structure is an open ending document without definition and codification which maintains it fluid and ready tool against state initiatives of unconstitutional features. There is need of constant vigil and proactive measures by the judiciary at the same time equal insistence in reforming itself is also critical.