DOCTRINE OF BASIC STRUCTURE AND CONSTITUTIONAL GUARDIANSHIP OF INDIAN JUDICIARY BY - MD. ASADULLAH & SHER ASLAM KHAN

DOCTRINE OF BASIC STRUCTURE AND CONSTITUTIONAL GUARDIANSHIP OF INDIAN JUDICIARY
 
AUTHORED BY - MD. ASADULLAH & SHER ASLAM KHAN
 
 
Abstract
Supreme court of India is the sentinel on the qui vive, it is the supreme interpreter of the constitution. The purpose of the present research paper would be to look into the aspect of constitutional guardianship particularly with respect to Indian judiciary. Ever since the historic pronouncement of doctrine of basic structure in 1973, the Indian Judiciary has taken over the role of guardian of the constitution, its judicial activism has been shaping the constitution ever since post-1973 era. This paper would look into this aspect whether the basic structure doctrine has acted as an impediment in evolution of society, considering Parliament is entrusted to bring in this transformation of society. Lastly, the paper would try to delve into as to whether Indian judiciary is actually guardian of the constitution?
 
Keywords- Constitutional Guardianship, Basic Structure, judicial activism, judicial overreach.
 
                                                                                                                                           I.            Introduction
As a first question to answer before delving into this paper is as to what is constitutional guardianship? Guardian means a protector of something or someone, legally guarding that something essentially. Constitutional guardian is one that protects the constitution against any encroachments, or any subversion. It is this guardian that is responsible for maintaining sanctity of the constitution, it is this guardian that is responsible for ensuring that constitution as our basic document is secured. Ever since the constitution of India came into being, there was an acceptance that the judiciary is going to play a pivotal role in safeguarding the constitution. One of the essential ways in which judiciary plays a role of constitution’s guardianship is through its unique power of judicial review, which means that it can look into the vires of a legislation and any executive action on the bedrock of essential principles of the constitution.
 
 
The Indian Constitution has empowered the judiciary with this power of judicial review under Article 13[1] to act as the guardian of the constitution. It is this power that has enabled the judiciary to act as the guardrail of our constitution. One striking feature or development that has happened in the history of our Indian constitution, has to be of the pronouncement of the basic structure of the constitution in 1973.[2] This doctrine has elevated this role of Indian judiciary as the guardian of constitution, protecting the constitution against any whims and fancies of those in power.
 
Basic structure in its usual term means those essential features of the constitution which make the core of the constitution, without which the essential nature of the constitution will get subverted. It is these essential features that require the judiciary to step up its role as the guardian of this document. However, coming to the point of this statement, the basic purpose of this paper would be to analyze if the judiciary is actually the guardian of the constitution. Moreover, the researchers will even look into the fact as to whether after the pronouncement of the basic structure doctrine, the evolution of Indian society has been curtailed. In this regard former Union Minister Arun Jaitley even called that democracy can’t be tyranny of the unelected. [3]
 
The basic structure doctrine is thus safeguard of the sanctity of our constitution, but it would not be suitable if it acts as a hindrance in the welfare state’s welfare activities, which is for the purpose of which elected representatives are elected.
 
                   II.            Basic Structure doctrine supplementing Guardianship role of Judiciary
The pronouncement of the basic structure doctrine paved the way for judiciary to be guardian in the true sense of our constitution. This guardianship role can be explained by the fact that, judiciary has called itself as the sentinel on the qui vive[4], it is the watchdog of our constitution. The basic structure doctrine was defined by the supreme court as a method to secure identity of the constitution, wherein the parliament can amend the sacred document in accordance with their generation, but not the basic foundational identity of the constitution.[5]
 
In this regard “foundational identity” principle of the constitution, the judiciary has come in the forefront, effectively taking over the role that was assigned to it of safeguarding our constitution. If we look at the way India as a state function, it is a quasi-federal structure.[6] The Indian federalism is designed in a way that disputes are bound to happen between the general government as well as the regional governments, even inter-state tussles as well. Presence of this independent judiciary[7], which is the guardian of constitution is necessary for resolving this dispute so that it remains within the four walls of constitutional spirit. Having a basic structure doctrine enables the judiciary to effectively oversee these disputes so that even if differences arise, they don’t transform themselves into one that overlooks the basic spirit of our constitution.
 
Basic structure doctrine has evolved into a “sacred reservoir” where with time, the judiciary keeps on adding certain essential features, which come under the ultimate protection of their guardian which is the judiciary. Several features such as federalism and secularism[8], equality of opportunity and free and fair elections[9], etc. were added to this sacred reservoir. The reservoir so created by the judiciary happened to supplement the essential role of judiciary as the guardian of the constitution. Several instances in the history of this doctrine supplementing the judiciary can be looked into-
v  In the case of Waman Rao v. Union of India[10], the supreme court said that anything that is added to the 9th schedule of the constitution, will not be immune from being tested by the judiciary on the anvil of basic structure, if they are after the date of 24 April, 1973.[11]
v  In M. Nagaraj v. Union of India (2006), the Apex Court said that formal equality was not a part of basic structure of the constitution, but substantive equality, which requires the state to take affirmative actions is part of it.[12]
v  Lastly, in NJAC case[13], apex court while striking down the 99th constitutional amendment[14], which sought to establish a national level judicial appointments commission, the court said that independence of judiciary was part of basic structure of the constitution.
It is apparent that the pronouncement of the basic structure of the constitution, has definitely had an impact in supplementing the role of judiciary as guardian of the constitution. It has elevated the judiciary to the position of critic of the executive actions and legislations.
 
                                         III.            Is Indian Judiciary really the guardian of the constitution?
The Supreme Court is India's highest judicial court. It supports and elevates the rule of law while also ensuring and protecting citizens' constitutionally guaranteed rights and liberties. As a result, the Supreme Court is often regarded as the Constitution's Guardian. It was often (and irritably) stated that the judiciary's role was to interpret the law, the legislature's job was to enact the legislation, and the executive's responsibility was to put it into action. It was stated that there was no bridge between law and justice since the law, no matter how unfair, had to be followed. In extremely restricted instances, executive or cabinet action was susceptible to judicial review. The current strident minority demand to rein in so-called judicial overreach indicates an opportunistic attempt to return to that unholy, evil past, ignoring the critical truth that we now have a democratic constitution. In India, the ideas of parliamentary and constitutional sovereignty coexist. The definition of judicial independence is the independence of judges in carrying out their tasks in an unbiased way.
 
Our constitution mandates a distinct understanding of separation of powers and, as a result, judicial overreach. There is no hard and fast rule about the separation of powers or judicial overreach. The precise outlines or bounds are specified by the constitution. [15]The relationship between the legislative and the administration on the one hand, and the judiciary on the other, has been substantially altered by our constitution. The constitution proclaims that it is the ultimate law, that any law that contradicts it is null and void, and that the responsibilities imposed by it must be followed. Furthermore, a court is required to declare invalid any legislation or action that is inconsistent with the constitution, and to issue a just and equitable order in response to the declaration. This constitutional framework severely limits the authority of Parliament and the cabinet. Parliament can no longer enact legislation at will. All laws must now be in accordance with the constitution. So, too, must the executive's behaviour. And it is up to the courts to determine whether Parliament, the government, or the president have acted in accordance with the constitution. Courts are increasingly responsible for more than merely interpreting the law.
The judiciary is the protector of the constitution, particularly the Bill of Rights. These rights, in general, benefit everyone in the country and impose duties on the legislature and the administration not to infringe on them. As a result, courts serve as the protectors of rights. Members and supporters of the administration frequently assert that policymaking is solely their domain and has nothing to do with the courts. Indeed, it is claimed that judicial rulings affecting presidential policy violate the separation of powers. This defence of the cabinet ignores the reality that once executive policy is translated into legislation or activity, such law or conduct must be compatible with the constitution. Otherwise, judges are forced to do their job and find that statute or action unconstitutional. This is what our courts have done to the best of their abilities in the contentious cases that have enraged some segments of society. According to our constitution, it is not up to the administration, the legislature, or segments of the public to determine whether the constitution is being followed or if legislation or practise contradicts the constitution. The courts, and only the courts, have this authority and responsibility. This is understandable.
 
The Supreme Court has given the notion of social justice a dynamic shape and broadened the envelope of social justice by adjudicating on varied social issues like as education, livelihood, gender, and the environment. The court, notably the Supreme Court, is tasked with protecting basic rights. In accordance with that duty and obligation, the Court cannot refuse to hear claims for protection against violations of basic rights. A petition under Article 32 must be considered if the existence of a basic right and its actual or threatened violation are asserted and prima facie proven. In this sense, the High Courts' stance under Article 226 is no different.[16]
 
Every action taken by the state, whether legislative, executive, or judicial, is null and unlawful if it infringes basic rights. It is widely established that a writ can be issued against the judiciary when it performs non-judicial responsibilities such as administrative or executive-level appointments of officials and legislative-level rule making. However, it has been determined that the judiciary is not included in the definition of "State" in Article 12 inasmuch as it relates to the exercise of judicial authority, and hence no writ would lie against it. The reason for this is because a judicial judgement made by a court of competent jurisdiction cannot impact basic rights, and no writ of certiorari may be granted against a court. The concept that court orders cannot in any way undermine basic rights appears to have several serious faults. To say that the application of fundamental rights has a narrower scope in the face of a judicial decision is not the same as the radical proposition that the Judiciary is excluded from the definition of "State" in Article 12, implying that there is no collateral constitutional remedy against a judicial decision.
 
 In Indian democracy, the Supreme Court is crucial. It is the highest court in the Indian judicial system, as well as one of the three coequal branches of the national government. It bears major, if not sole, responsibility for interpreting the Indian constitution and establishing the extent and content of its crucial role. As the primary defender of the constitution, the courts are regularly called upon to determine the constitutionality of legislation enacted by parliamentary majority. The Supreme Court of India also serves as a check and balance on the other two branches of government. The Supreme Court has generally performed admirably in its constitutional duties, upholding the principle of constitutionalism. The judiciary must keep out of the political sphere by not taking on political roles. It is a well-established fact that the Supreme Court's judicial activism has aided in enforcing citizens' rights and interests, as well as in keeping the other branches of government within their constitutional boundaries; however, the judiciary should constantly remind itself that the need of the hour is the supremacy of the Constitution, not the supremacy of the judiciary.
 
                                                                                       IV.            Basic Structure and Indian Society.
One of the most serious criticism of basic structure doctrine is that the basic structure doctrine tracks down no notice in the language of the constitution[17] and goes against the original expectation of the constituent Assembly. Sathe has even depicted the basic structure doctrine as "an endeavour to rewrite the constitution[18]". Although a few scholars have contended that Kesavananda is upheld by textual constructs[19], the connection between the constitutional text and the basic structure doctrine is exceptionally remote. Without a doubt, the doctrine has very little to do with what is written in the constitution. The nexus between the doctrine and the constitution as it has been arranged can be ascribed more precisely to spirit than to text.
 
 Apart from this, the Kesavananda has been denounced for being excessively lengthy, accordingly causing uncertainty regarding what the eleven opinions aggregately mean and what the basic structure really comprised. The judgment has likewise been portrayed as one that gives an "outstanding study on lack of consensus"[20]. The risk with the ambiguity of the basic structure doctrine is that each judge's opinion relies upon his own inclinations and practically vests amending power in judges, resting on variable judicial perceptions and majorities.
 
The basic structure doctrine has likewise been sharply scrutinized as being counter-majoritarian, and one that causes a popularity-based unevenness since it gives unreasonable control over constitutional amendments to supreme court[21], an unelected and self-selected body. Some have gone to the degree of saying that acts of judicial temerity, for example, in kesavananda case, can harm democratic principles as much as the authoritarian tests of Indira Gandhi, although this appears to be exaggerated. Notwithstanding, the supreme court's message in kesavananda case was clear that in case any constitutional authority planned to employ considerable control over constitutional interpretation conflicting with the traditional democratic process, it would be judiciary.
 
A hotly challenged question among scholars of constitutional law is whether the basic structure doctrine, formulated at the height of a harsh time of single-party dominance, has crossed its expiry date. In the time of alliance government politics, it is unlikely that any party will use the power that Indira Gandhi government practiced during the 1970s. however, assuming one needed to pick either the law-making body and the judiciary as the custodian of the constitution, it would be likely be the latter. 
 
Although the kesavananda decision doesn't find favour with those who have been raised with the conventional concept of judicial review, even sceptics would concede that it was the judiciary's rescue operation that saved Indian judiciary. According to a practical viewpoint, contentions against the basic structure doctrine have been largely speculative, in light of how some helpful structure changes would be vitiated by its activity. In spite of the fact that scholars have thought on the possible evils of the tenet, it has not slowed down any beneficial constitutional amendments up until now and Indian courts have invoked it sparingly. Simultaneously it has not contributed in the evolution of society.
 
Assuming we acknowledge the contention of the individuals who go against the basic structure doctrine, how might we dispose of it? Since the system of binding precedents in India rests on the principle of law that a judgment represents a decision of the entire bench of judges (not only those in the majority), another bench consisting of at least thirteen judges would have to be constituted to reconsider kesavananda Bharti case[22]. Besides, since kesavananda Bharti case, by its temperament, can't be overruled by the exercise of legislative power, the only other method of doing so would be through extra -constitutional. Both of these situations seem highly improbable, at least in the contemporary times.
 
After analysing the nature of basic structure doctrine and opinions of some scholars, it may be concluded that basic structure doctrine has contributed to some extent to Indian judiciary but at the same time it caused hindrance in the evolution oof Indian society.
 
                                                                                                                                           V.            Conclusion
To conclude it is safe to say that the basic structure doctrine has enhanced the role of Indian judiciary, it has also paved the way for safeguarding the democratic values which have been enshrine in the constitution. Our constitution is an organic living document, and to ensure that it is constantly evolving and embarking on this transformative role it is imperative to have an independent body, which looks after the evolution of the constitution in line with the changing dynamic of the society, while at the same time balancing it with the core values which make up the identity of the constitution, which we call as the Basic Structure of the constitution. As a guardian of our constitutional values, the judiciary has and is evolving into essential gatekeeper as well as guardrail of this organic document. With concerted efforts on the part of each organ of the state, the transformation of society is inevitable towards good of all.
 
                                                                                                                                    VI.            Bibliography
1.      List of cases
·         Supreme Court Advocate on Record Association and Another v. Union of India, Writ Petition (Civil) No. 13 of 2015.
·         VG Row v. State of Madras, 1952 SCR 957.
·         Minerva Mills v. Union of India, AIR 1980 SC 1789.
·         Chandra Kumar v. Union of India, 1995 AIR 1151
·         SR Bommai v. Union of India, 1994 AIR 1918.
·         Indira Nehru Gandhi v. Raj Narain, 1975 AIR 865.
·         Waman Rao v. Union of India 1981 2 SCR 1
·         Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr, AIR 1973 SC 1461
 
2.      Books
·         Sudhir Krishnaswamy “Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine” Oxford University Press (2012)
·         J.N Pandey “Constitutional Law of India” Central Law Agency, Allahabad (2020)
·         Zia Moody “10 Judgments that changed India” Penguin Random House India 2013
·         V.N Shukla, “Constitution of India” Eastern Book Company 13th Edn. 2019
 
 
3.      Articles
·         Chintan Chandrachud, “the supreme court’s practice of referring cases to larger benches: A Need for Review”, Supreme Court Cases (Journal), vol. 1 (2010)
·         Kemal Gozler “Judicial Review of Constitutional Amendments: A Comparative Study” Bursa: Ekin Press, 2008.
·         Sathe “Judicial Activism in India” Oxford University Press 2003.
·         Andrew B. Coan “The Irrelevance of Writtenness in Constitutional Interpretation” University of Pennsylvania Law Review, Vol. 158 (2010).
·         Gul Bukhari, “Resounding Silence”, Daily Times, 15 November 2010.
·         Madhav Khosla, “Addressing Judicial Activism in the Indian Supreme Court: Towards an Evolved Debate”, Hastings International and Comparative Law Review vol. 32 (2009)
·         Reetika-Bansal, The role of judiciary in India, Research Gate Publication, July 2020.
·         V. Venkatesan, as courts rule on constitution’s basic structure, Landmark Doctrine turns out to be elastic, The Wire, 29 October 2020
·          Express News Service, Arun Jaitley on NJAC verdict: Democracy can’t be tyranny of the unelected, The Indian Express, Oct 19, 2015
 
 
 
 
4.      Internet Sources
·         (The Guardian For One And All Or The Judiciary Is The Sentinel Qui Vive)https://www.livelaw.in/columns/the-guardian-for-one-and-all-or-the-judiciary-is-the-sentinel-qui-vive-165833
·         Reetika-Bansal, The role of judiciary in India, Research Gate Publication, July 2020. https://www.researchgate.net/publication/342766261_The_Role_of_Judiciary_in_India
·         V. Venkatesan, as courts rule on constitution’s basic structure, Landmark Doctrine turns out to be elastic, The Wire, 29 October 2020
 
5.      Statutes
·         Constitution of India 1950
·         The Constitution (Ninety-Ninth) Amendment Bill, 2014
 

[1]Article 13 of the Constitution of India
[3] Express News Service, Arun Jaitley on NJAC verdict: Democracy can’t be tyranny of the unelected, The Indian Express, Oct 19, 2015.
[4] VG Row v. State of Madras, 1952 SCR 957.
[5] Minerva Mills v. Union of India, AIR 1980 SC 1789.
[6] Prof. KC Wheare called India as quasi-federal.
[7] L. Chandra Kumar v. Union of India, 1995 AIR 1151, stated independence of judiciary as being part of basic structure of constitution.
[8] SR Bommai v. Union of India, 1994 AIR 1918.
[9] Indira Nehru Gandhi v. Raj Narain, 1975 AIR 865.
[11] Date when Kesavananda Bharati case was pronounced.
[14] The Constitution (Ninety-Ninth) Amendment Bill, 2014.
[15] (The Guardian For One And All Or The Judiciary Is The Sentinel Qui Vive)https://www.livelaw.in/columns/the-guardian-for-one-and-all-or-the-judiciary-is-the-sentinel-qui-vive-165833.
[17] Kemal Gozler “Judicial Review of Constitutional Amendments: A Comparative Study” Bursa: Ekin Press, 2008.
[18] Sathe “Judicial Activism in India” Oxford University Press 2003.
[19] Andrew B. Coan “The Irrelevance of Writtenness in Constitutional Interpretation” University of Pennsylvania Law Review, Vol. 158 (2010).
[20] Gul Bukhari, “Resounding Silence”, Daily Times, 15 November 2010.
[21]Madhav Khosla, “Addressing Judicial Activism in the Indian Supreme Court: Towards an Evolved Debate”, Hastings International and Comparative Law Review vol. 32 (2009).