What safeguards a Democracy?

Regularly in papers and on TV we hear requests from periphery bunches calling to change the social fabric to an oppressive system from a parliamentary popular government, limiting a network from casting a ballot and so on. The knight in sparkling protection that spares India from these crazy requests is the ‘Basic Structure Doctrine’. I will try to examine the causes of the principle; it’s development in India and its repercussions.

Before a conversation on the framework is embraced, clarifying the structure of modern democracies is necessary. Democracies on the planet are normally administered by a Constitution, which is their supreme law. The Constitution sets down bury alia the standards and methodology of law-making, administration and privileges of the individuals and so forth. It likewise makes the mainstays of administration for example Chief, Legislature and the Judiciary. The assembly makes the law, the chief executes the law and the legal executive settles questions emerging out of that law. Legislature, commonly referred to as the Parliament is relevant for our discussion.

Parliament is the body entrusted with the responsibility of making law, which invariably includes the power to modify or repeal that law. However, often it is asked if the Constitution, which established the parliament also contains the power to modify/repeal the law. The common answer is yes and the procedure is called an amendment, whereby the Constitution makes a change by inclusion, exclusion or correction. However, the scope i.e. which parts of the Constitution can be amended witnesses see divergence of opinions.

The origin of the doctrine can be traced back to Germany from where our Courts borrowed it. The experience taught the Germans two lessons. First, mere procedural limits were not sufficient safeguards against anti-constitutional forces as evil could be imposed by following the procedure. Second, even the said rules of procedure could be changed by such regimes.

Article 368 of the constitution gives the impression that Parliament’s amending powers are absolute and encompass all parts of the document. This power, however, must be exercised by following a said procedure.

It is also clear that the Constitution has put procedural and not substantive limitations on the power of amendment. Therefore, theoretically the Parliament was empowered to completely overhaul the Constitution if it abided by the said procedure. Tiny steps to this effect were taken and accepted in earlier cases like Shankari Prasad v. Union of India and Sajjan Singh v. State of Rajasthan, wherein the Parliament restricted the guaranteed fundamental right to property of its citizens. The Supreme Court upholding the amendments seconded the proposition that Parliament’s power is ‘constituent’ and unlimited.

The danger in this absolute proposition was highlighted by Justice Mudholkar and Justice Hidayatullah separately (in their dissenting opinion in Sajjan Singh) wherein they argued that every Constitution has certain fundamental features that are beyond the reach of the Parliament and cannot be changed. The dissents became the majority in the latter case of I.C. Golaknath v. State of Punjab, which overruled all the previous decisions.

The Court through itself added a substantive restraint on the amending power, by providing immunity to Part III of the Constitution i.e. fundamental rights, which it believed were so transcendental that no authority could take them away.

The government however did not budge and the final chapter on this issue was set to be decided in the landmark case of Kesavananda Bharati v. State of Kerala. The case is unique for several reasons namely, it is the longest reported judgment in the Indian Supreme Court’s history, was heard by the largest bench ever constituted i.e. 13 judges with 11 opinions and had the longest hearing ever.

The Constitutional Bench ruled by a 7–6 verdict and modified its earlier ruling but stuck to the substantive restrictions imposed. It held that although the Parliament has the power to amend the Constitution so long as it did not alter or amend the basic or fundamental feature of the Constitution (this came to be called ‘the basic structure’ doctrine). It is important to note that what is fundamental was left to the courts to determine as and when they arise.

The grounds which could be garnered from the several opinions and subsequent judgments include:

• Articles 32 and 226 i.e. Right to approach Courts
• Supremacy of the Constitution
• The Sovereign, Democratic, Republic structure
• Federalism & Secularism
• Principle of Free and Fair Elections
• Limitations upon the power conferred by Article 368
• Judicial Review
• Rule of law
• Principle of Separation of Powers

Therefore, if an amendment curtails/modifies any of the above listed principles, the amendment could be struck down for violating the basic structure doctrine.

Therefore the doctrine adds to the already existing extra-constitutional substantive restrictions to the already existing procedural restrictions. Practically, no government can thwart the parliamentary democracy in India, stifle the minorities, make the nation dominated by one particular culture or impose other such evils due to the doctrine (as democracy and secularism are considered basic features of our Constitution).

The constitutional doctrine has been criticised by scholars as a case of the judiciary subsuming legislative powers. In other languages, there has been an accusation of un-elected judges taking the position of elected officials. In the opinion of the author, however, the doctrine is very much required in India, Where governments have shown a propensity to intervene with the minorities.

In the world’s largest democracy, with conflicting interests emerging constantly, our Constitution deserves to be praised for its ability to sustain and protect the nation.

About The Author

Bhaskar Dhandharia is currently pursuing post-graduation in law from OP Jindal Global Law School.