Basic Structure Doctrine Is Here To Stay, It Has Been Embraced By Other Countries Too : Senior Advocate Fali S Nariman

The basic structure doctrine has achieved constitutional permanence not only in India, but also in six other nations globally that have both acknowledged and embraced the principle of placing a restraint on the legislative power of constitutional amendment, renowned Indian lawyer Fali S Nariman, Senior Advocate, said on Friday. He also urged people to maintain faith in the overarching integrity of the higher judiciary as an institution, even though occasional concerns may arise regarding specific judgments handed down by individual Supreme Court judges – “Individual members of the public may from time to time get worried, as I sometimes am, with orders and decisions given by individual judges of the Supreme Court. But please never lose faith in the higher Judiciary as an institution, as one of the three constitutional organs of good governance.” Nariman was delivering a keynote address at the 2023 Ram Jethmalani Memorial Lecture, in which he explored the significance of the basic structure doctrine within India’s constitutional framework. The event, organised by the Sunday Guardian Foundation, was presided over by Chief Justice of India DY Chandrachud. Law minister Arjun Ram Meghwal and Attorney-General for India R Venkataramani were the guests of honour. On the panel debating whether the basic structure doctrine has served the nation well were Nariman, former Chief Justice of India Dipak Misra, Thuglak editor S Gurumurthy, and senior Supreme Court lawyer Shyam Divan. During his speech, Nariman highlighted how the basic structure doctrine, which placed restraints on Article 368 of the Constitution – the sole article dealing with substantive constitutional amendments – were intrinsically tied to an effort by courts worldwide to safeguard democratic institutions and ‘serve the nation well’. In this connection, he also outlined the doctrine’s evolution, starting from its inception in the landmark 13-judge-bench Kesavananda Bharti judgment of the apex court and tracing its development to the present day. He spoke about the two instances where an attempt was made by the Supreme Court to doubt this historic precedent. One of these attempts was in November 1975 when the-then chief justice AN Ray constituted another bench comprising 13 judges to reconsider the ruling’s correctness – “In this bench of 13 judges, there were eight new judges, all appointed after Kesavananda, replacing those who had retired. And this new bench of 13 judges heard arguments for two days, but on the morning of the third day, when the court reassembled, Chief Justice Ray suddenly and peremptorily announced, “This bench stands dissolved.” All the judges rose and went back to their chambers. And this was only because Chief Justice Ray was satisfied that the doctrine of basic structure was not to be reconsidered by any of his 12 colleagues.” In 2007, another attempt was made in IR Coelho to doubt the basic structure or essential features doctrine. A bench of nine justices, however, unanimously reaffirmed the doctrine. Consequently, it has now acquired a place of permanence in constitutional adjudication itself. He also pointed out that not only had it gained in importance in India, but has also been acknowledged and embraced by six nations globally: Bangladesh, Pakistan, Uganda, Israel, Malaysia, and Belize in Central America. Interestingly, Nariman also argued that the Indian Parliament itself had endorsed the basic structure doctrine by enacting the 44th constitutional amendment of 1978 which expressly declared that the fundamental right against self-incrimination (Article 20) and the right to life and liberty (Article 21) cannot be suspended even during the proclamation of an emergency. Nariman insisted that this declaration, coming in the wake of the lifting of the internal emergency imposed by the Indira Gandhi-led government in June 1975, was an essential recognition of the basic structure doctrine by the legislature itself – “After the lifting of the oppressive internal emergency imposed in 1975, and after the sixth general election of March 1977, India’s newly constituted Parliament met and expressly declared by Section 40 of the Constitution Amendment Act, 1978 that the right to move any court for the enforcement of rights conferred by Articles 20 and 21 even during the period of an emergency can never be suspended. Therefore, it was the considered view of India’s Parliament – not the view of India’s higher judiciary but of India’s Parliament – that the fundamental right to life and liberty in Articles 20 and 21 were a part of the basic structure of the Constitution. Because in the statement of objects and reasons for this amendment, it had been expressly stated by the then government in office that this was done in order to check the misuse by the executive, of the emergency provision. In other words, the right to life and liberty from then...

Basic Structure Doctrine Is Here To Stay, It Has Been Embraced By Other Countries Too : Senior Advocate Fali S Nariman

Awstika Das

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