'What If There Is No Basic Structure Doctrine?' : Ex-Judge Deepak Gupta Cites Example Of Hitler Using Majority To Pass Amendments

While delivering the guest lecture at 2nd BR Ambedkar Memorial Lecture 2023 organised by Hidayatullah National Law University, Justice Deepak Gupta, former Judge of the Supreme Court said that the government wants to pack the courts with men and women who will toe their line and those who will not be critical of them and will uphold every action of them.Delivering his lecture on the topic 'Will of the People or Rule of Law', Justice Gupta also highlighted the importance of 'basic structure doctrine' as a check on abuse of majority power. In his speech, he cited the example of Adolf Hitler using his "brute majority" to make sweeping amendments so as to take away the rights of people. It may be recalled that Vice President Jagdeep Dhankhar had created a stir recently by criticising 'basic structure doctrine' by saying that it diluted the supremacy of the Parliament.While extolling the legacy of Dr. BR Ambedkar and Justice Hidayatullah, Justice Gupta started his lecture by saying, “Look within yourselves. Have we any where achieved the dreams of Dr. Babasaheb Ambedkar? I don’t think so.“He added, “The men and women who drafted our constitution were not bogged down by vote bank politics. They had no communal thought. They had no caste based prejudice. They never thought which place they belonged to. They thought only of the country. We go wrong because we think not of the country but other things.Reading out the Preamble to the Constitution, Justice Gupta said, “What did we promise to ourselves? Justice, Liberty, Equality ad Fraternity. All these four things have to be read together…They can never be divorced from each other.”Governments can’t claim to represent the will of the people While reading out voting patterns in India, Justice Gupta said, "We have the first past the post system which means that the one who gets the most number of votes poured, gets in...does this system ensure that the one who gets elected represent the will of the people? You will see that almost none of the candidates get 50% of the votes. 2/3rd of the people don’t even vote. The present government has 1/3rd of the votes poured. If you extrapolate this number to total number of eligible voters, it is less than 25%. They have been given the constitutional mandate tog over. But can they claim that they are the will of the people with less than 25% of the votes?"Elections are not fought on the Basic Structure Debate Justice Gupta added, "We never fight elections on policy. We fight elections on vote bank politics. We fight elections on communal..caste…religion...freebies basis. Have you ever heard a candidate before the election talk about Rule of Law, Collegium System or Basic Structure of the Constitution. When these issues are not before the electorate, then where is the will of the people to say that we will take away the basic structure of the Constitution."Justice Gupta argued, "Assuming for the sake of the debate that you do have the will of the people. In that case, can you over ride the Rule of Law? Every law has to be in sync with the Preamble of the Constitution."It is the Constitution that is Supreme Holding the Constitution in his hand, Justice Gupta said, "We have a system of separation of powers. These three wings have been created to ensure checks and balances. The system can work when each wing respects the other. When each wing does not encroach on the other. No wing is supreme. What is supreme is the Constitution of India."Rule of LawWhile speaking about the Rule of Law, Justice Gupta said, “Magna Carta was the first document that propounded Rule of Law. What led to the Magna Carta? It was the tussle between the Judge on the one hand saying he is supreme and the King on the other saying he is supreme. In between these two were the citizens who were being crushed. Finally the Magna Carta came.”He added, "Rule of Law stands in sharp contrast to the idea that the ruler is above the law. There are discretions on the exercise of discretionary power.""In my view the concept of Rule of Law implies that the laws must be framed in a manner that they do not impinge upon the human rights of individuals. All human beings should be treated equally. Once the law has been framed it must apply with equal vigour to each and every person which includes those who rule…every authority is subject to and governed by the law. When there is rule of law there is fairness and when there is no rule of law there is arbitrariness…anarchy. Another important aspect of rule of law is judicial review of executive action. And that is why there is a system of separation of powers. Access to courts is also a part of rule of law. Rule of Law is to do something which is right, something which is honest, something which is fair, something which is truth," Justice Gupta added. Role of the Judiciary Talking about the role of judiciary in a democracy, Justice Gupta said, "During my time as a judge, when I went for my morning walk, I would remember my oath...

'What If There Is No Basic Structure Doctrine?' : Ex-Judge Deepak Gupta Cites Example Of Hitler Using Majority To Pass Amendments

Anurag Tiwary

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