'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 Law

While 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 every day. I would revisit my oath every morning. I would not recite any mantras. When you sit as a judge, it is the Constitution of India which is my Gita, Bible, Guru Granth Sahib and my Quran."

He further added, "The importance that Dr. Ambedkar and his team gave to the rights of citizens and the courts is best reflected in Article 32 of the Constitution of India. Probably we are the only country in the world where the right to approach the highest court of the land for enforcement of fundamental rights is itself a fundamental right. Rule of Law and Separation of Powers is an integral part of our body polity. It is the golden thread which runs and binds our constitution. If we don’t have the rule of law then this constitution wouldn’t survive. Freedom not tyranny, democracy not dictatorship, rule of law not the rule of men. And therefore it necessitates that we must have an independent and fearless judiciary which is not bowed down by anybody. The first word in the oath for judges is without ‘fear and favour’. If rule of law disappears we will be ruled by idiosyncrasies and whims of the rulers. My request to you, never let that happen."

Replying to the recent remarks made by the Vice President of India Jagdeep Dhankar on the Basic Structure Doctrine, Justice Gupta said, "Recently the Hon’ble Vice President said he does not believe in Basic Structure doctrine. He is entitled to his views. I am not surprised, if not shocked, that almost 50 years after Keshavananda Bharti was decided and a number of judgments after that..this comes."

While speaking about German experience under Adolf Hitler, Justice Gupta made an important comparison. He said, "In 1933 Adolf Hitler was elected to be Chancellor of Germany. He was elected by popular vote. Germany had a constitution known as The Weimar. That Constitution had a provision like ours that Constitution can only be amended by a 2/3rd majority. Using their brute majority in Germany, they made so many amendments that they took away the rights of the citizens including the right of freedom of speech, residence, association and habeas corpus. He also passed a law that hereinafter you do not have to bring anything to the Parliament. The executive was supposed to bring in laws. And we know what happened. Millions of jews who belonged to the minority community were killed. So after the Second World War when the Federal Republic of Germany was drafting its new Constitution, they said, we will have some basic clauses that can never be removed. They took out rule of law, fundamental rights, separation of powers from the amending power of the Parliament. They said these basic laws are eternal and nobody can remove them."

Justice Gupta further added, "What will happen if you do not follow the basic structure today?. If we say that the will of the people is supreme and the you can change everything and you do not have to follow the basic structure then parliament can say anything. It can say we do not want this country to be a democracy. Let it be a monarchy or worse a dictatorship. It can say we take away all the fundamental rights. Parliament could delete Article 32 or worse, delete the Part III of the Constitution. Can this ever be the will of the people. So, even if the parliament represents the will of the people, it cannot change the basic structure of the Constitution."

Collegium System

Justice Gupta then spoke about the collegium system and the recent controversy surrounding the procedure of appointment of judges. He said, "I myself am not a very huge fan of the collegium system. It has to become more objective and more transparent. However, despite these shortcomings I do not see a better alternative.Those of us who have seen the emergency never want to go back to days like those. No doubt, some may argue that the collegium does not find place in the Constitution. But we had the first, second and the third judges case. There is also an argument that in no other country judges appoint judges. But that is not the case." 

Justice Gupta then pointed out the entire exhaustive process undertaken by the collegium before suggesting a name for elevation. It is not that the government does not have a say in the process. Many times collegium accepts whatever the government has to say.

Referring to the appointment of Saurabh Kirpal and Somasekhar Sundaresan, Justice Gupta said, "Recently there has been two cases whose reports the collegium has put out in the public domain. Saurav Kirpal, who is openly homosexual and has never hidden this fact, his name was recommended more than 5 years back. No body denies his competence. Nobody denies his intelligence and integrity. But his sexual orientation…and that his partner is not Indian. there are many Indians whose spouses are not Indian. Mr. S. Jaishankar, his wife is Japanese. So, that cannot be a ground."

"The other person’s name has been rejected because he had shared an article against the prime minister. In my view, even if he was the author of the article that could not be held against him. What does this show? This shows that they want to pack the courts with men and women who will tow their line. Who will not be critical of them and will uphold every action of them. Is this the judiciary?" Justice Gupta added. 

At the end of his speech, Justice Gupta said, "You have to fight for your own rights and for the rights of your brother and sister citizens. It is my request and plea to you don’t let the heart and soul of the constitution die. Let it eternally lie. You young students are leaders of tomorrow. If you work to protect the constitution nothing can go wrong."