Basic structure must remain inviolate

EducationWorld February 2023 | Editorial Magazine

The clarion call of vice President Jagdeep Dhankar and Lok Sabha Speaker Om Birla, for review of the Supreme Court’s judgement in the landmark Kesavananda Bharati Case (1973) in which (accepting the argument of eminent jurist Nani Palkhivala (1920-2002)), the Supreme Court held that legislation enacted by Parliament which violates the “basic structure” of the Constitution is invalid, is fraught with danger. It should be opposed by all right-thinking members of society.

The argument of proponents of judicial review of this historic judgement is driven by belief that Article 368, which permits a two-thirds majority of Parliament to alter and amend any provision of the Constitution, ipso facto acknowledges the supremacy of a duly elected Parliament in the national governance schema. To grasp the fallacy of this argument based on the example of unlimited power exercised by the British parliament (“the mother of all parliaments”), it’s important to recall the evolutionary history of the Constitution of India.
The first point to bear in mind is that unlike the UK, which doesn’t have a written constitution, the Constitution of India is a written document whose every provision was extensively debated by a distinguished Constituent Assembly for almost four years. As such, it’s binding upon all estates of the realm — parliament, executive, the judiciary, media and citizenry.

However as it became manifest later, the Constitution contained some anomalies, if not contradictions. Therefore in 1967 in Golak Nath’s Case, the apex court ruled that Article 368 notwithstanding, Parliament does not have power to alter or abridge citizens’ fundamental rights enshrined in Part III of the Constitution, and the seven freedoms contained in Article 19. The court ruled that Parliament/government may impose reasonable restrictions on fundamental rights subject to endorsement by the Supreme Court. But with Parliament dominated by the socialist Congress party continuing to enact legislation imposing restrictions on the right to free speech and property ownership, in the Kesavananda Bharati Case (1973), the apex court ruled that legislation enacted by Parliament which violates the basic structure of the Constitution — designed to safeguard the fundamental rights of minority citizens — is invalid even if passed unanimously.

In light of this history and evolution of checks and balances and separation of powers, it’s plain that the Dhankar-Birla proposal which posits that Parliament has the final word in national governance, is misconceived. Rather than Parliament/executive, it’s the Constitution as interpreted by the judiciary, that’s supreme.

If absolute authority to amend the Constitution is conceded to a transient Parliament with a five-year term, the BJP government with its two-thirds majority could enact legislation declaring India a Hindu state, an initiative that would be totally contrary to the intent of the founding fathers of the Constitution. Therefore, the proposal to reconsider the verdict of the apex court in the Kesavananda Case should be firmly rejected by all right-thinking members of society.

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