Basic Structure Doctrine A North Star Which Guides Interpretation Of Constitution : CJI DY Chandrachud

The basic structure doctrine had evolved in the celebrated 13-Judge Constitution Bench judgement of the Supreme Court almost five decades back. It, however, had come under attack by the Vice President of India Jagdeep Dhankhar recently, when he said that the judgment set a bad precedent and questioned if the judiciary could put fetters on the Parliament’s powers to amend the Constitution and frame laws in a democratic nation.

The doctrine had evolved in the famous Kesavananda Bharati v. State of Kerala where well known jurist Nani Palkhivala had represented Bharati. Talking about Palkhivala’s contribution to the doctrine the CJI said, “If not for Nani, we would not have had the basic structure doctrine in India.”

“The basic structure of our Constitution, like a north star, guides and gives a certain direction to the interpreters and implementers of the Constitution when the path ahead is convoluted,” he added.

CJI also added, “Amend as you may even the solemn document which the founding fathers are committed to your care for. You know the best needs of your generation, but the Constitution is a precious heritage. Therefore, you cannot destroy its identity. The only thing which I will add to this expression is the use of the phrase founding mothers, along with founding fathers of the Constitution”.

The CJI also charted out the global migration of the basic structure doctrine through the years. “Whenever a legal idea is transported from another jurisdiction, it ends up undergoing a transformation in its identity dependent on local markets. After India adopted the basic structure doctrine, it migrated to our neighbouring countries such as Nepal, Bangladesh and Pakistan. Different formulations of the basic structure doctrine have now emerged in South Korea, Japan, certain Latin American countries and African countries as well. The migration, integration and the formulation of the doctrine of basic structure in constitutional democracies across continents is a rare success story of the diffusion of legal ideas of the world. What greater tribute can we have than this?” he said.

Justice Chandrachud also emphasised that the journey of the doctrine of basic structure had shown that it might be beneficial for a judge to look at how other jurisdictions have dealt with similar problems. “Nonetheless, the larger picture of legal culture and local dimensions of law, which are dictated by the context, should never be obfuscated. Law is always grounded in social realities. Just as the House must be in harmony with its environment and then context, so must law and legal ideas become part of the landscape and embody the express embody and express our local values”, he added.

“If you look at our institution then it does not favour unbounded economic liberalism. Rather, our Constitution seeks to find the right balance.”

On how the judges should interpret the Constitution, Justice Chandrachud said, “The craftsmanship of a judge lies in interpreting the text of the Constitution with the changing times while keeping its soul intact”. The CJI Chief was delivering a lecture in Mumbai on ‘Traditions & Transitions: Palkhivala's Legacy in an Interconnected World’. The event was organised by the Nani Palkhivala Memorial Trust.

The CJI sought to contextualise Nani's life and ideas from the standpoint of the historic events which shaped his own personal evolution. "In living through these times, Nani shaped the history of contemporary India as well.”

“And he was a true constitutionalist who revealed the Constitution of India and dedicated his entire life to preserving the integrity of our Constitution, protecting the rights and liberties of Indian citizens. Nani was always in the vanguard to defend the spirit of constitutionalism”, CJI added.

CJI recalled that once emergency was declared, Nani Palkhivala stopped representing former Prime Minister Indira Gandhi.

CJI spoke about a hearing in the Minerva Mills case in which a judge was talking about the merits of socialism. He recalled Palkhivala’s response to the judge – “Only an imbecile would try and jump the Berlin Wall from the West to the East”.

The CJI shared that Nani suffered from a stammer as a child and overcame it. “At the age of 11, Nani participated in an elocution competition. To overcome his stammer, his father encouraged young Nani to practice speaking while rolling almonds in his mouth. Fittingly, Nani gave a speech on the topic ‘try and try until you succeed’…True to the essence of the topic, Nani overcame his stammer and then went on to become an orator, par excellence”, the CJI recalled.

“Nani’s life has been a witness to historic traditions and transitions in India both in the fields of law and economics. Modern nations often require the great imaginative capacity of individuals to transcend the barriers of space and time”, he added.

He said that, from time to time, we require people like Nani Palkhivala to hold candles in their steady hands to light the world around us. “He told us that our Constitution has a certain identity which cannot be ordered. That we as a people are entitled to a rights-based democracy. And that we as a nation can aspire for a better economic future. Cultures across the world believe in prophets who appear during times of despair, to warn people that they are walking on the wrong path. Nani was one such prophet,” the CJI said.

He concluded the lecture by referring to a poem by Alexander Pushkin stating that it succinctly summarises what he (Justice Chandrachud) believed:

And long the people yet will honour me
Because my lyre was tuned to loving-kindness
And, in a cruel Age, I sang of Liberty

And mercy begged of Justice in her blindness

This year's Nani Palkhivala Memorial Award was given to former Police Commissioner Julio Ribeiro.