Critics of the doctrine of basic structure argue that, through this doctrine, guardians of the constitution have become guardians over the constitution.
The phrase ‘basic structure’ was introduced for the first time by M.K. Nambiar and other counsels while arguing for the petitioners in the Golaknath case (1967), but it was only in Kesavananda Bharati case (1973) that the concept surfaced in the text of the apex court’s verdict. The amending provision of the Indian Constitution is a combination of rigidity and flexibility.
CONCEPT OF BASIC STRUCTURE DOCTRINE
Initially, judiciary was of the view that the amendment power of the parliament is unrestricted because it can amend any part of the constitution including Article-368. But in Golak Nath case, the Supreme Court adopted a new vision to see the powers of parliament that it cannot amend the part III of the constitution i.e Fundamental rights and thus awarded fundamental rights a “Transcendental Position”. However, in the Kesavananda Bharati case, the Supreme Court held that the Parliament can amend any part of the Constitution including the fundamental rights but it cannot dilute the “basic structure” of the constitution. However, the basic structure was not precisely defined. Different judges gave different opinions regarding the components of the basic structure.
CRITICISM OF THE BASIC STRUCTURE DOCTRINE
- Many critics have questioned the anti-democratic character and legitimacy of the basic structure doctrine. Granville Austin notes that there are several discrepancies between the points contained in the summary signed by the judges and the opinions expressed by them.
- The doctrine does not have a textual basis. There is no provision stipulating that this Constitution has a basic structure and that this structure is beyond the competence of the amending power.
- The concept of the “basic structure of the Constitution” cannot be defined and each judge views the basic structure concept according to his/her own subjective satisfaction. This leads to the fact that the validity or invalidity of the Constitution Amendment lies on the personal preference of each judge and the judges will acquire the power to amend the constitution.
- An amendment to the Constitution may be necessary even to change the original intention of the Constitution framers, which may not augur well for the subsequent generation which is to work with the Constitution. Therefore, to hold that an amendment not falling in line with the original intention of the founding fathers is not valid.
- The attempt by a constitutional court to review the substance of the constitutional amendments would be dangerous for a democratic system in which the amending power belongs to the people or its representatives, not to the judges.
- The basic structure doctrine goes against the spirit of the separation of powers under the Indian Constitution. It creates a tyranny of judges whom are unelected and restricts the will of the people by putting limitations on the amending power of the Parliament.
- The Basic Structure doctrine has been cited as a reason by judiciary for overturning the National Judicial Appointments Commission (NJAC) proposal of the government. The apex court said that the independence of the judiciary is a part of the basic structure. The NJAC was meant to promote transparency in judicial appointments. The appointments in our judiciary smack of nepotism and corruption which creates a situation of judges appointing themselves. So, it is a clear-cut instance of misuse of basic structure doctrine.
Hence, it is said that through this doctrine guardians of the constitution have become guardians over the constitution.
POSITIVE DIMENSION OF THE BASIC STRUCTURE DOCTRINE
Despite multiple criticisms the basic structure doctrine has served the noble purpose of safeguarding cardinal values of the constitution like parliamentary democracy, secularism etc. It drives home the point that any government by its sheer brute majority cannot alter the basic structure of the constitution.
The basic structure doctrine encompasses those values which were dear to the founding fathers of the constitution and hence were enunciated in the noble document in the constitution.
Thus, the basic structure doctrine plays a cardinal role in the sustenance of constitutionalism and democracy in India. The judiciary has truly acted as the guardian of the constitution as desired by the founding fathers of the constitution.