India has the lengthiest written constitution in the world. This carefully crafted document created by the constituent assembly is the most supreme authority of this nation. Every individual is bound by this document. The three pillars of government namely the – executive, legislature, and judiciary derive all their power and legitimacy from the constitution. The three pillars are to function in harmony with one another to ensure that neither pillar oversteps its jurisdiction.
In light of the recent tussle between the Judiciary and Executive over the Collegium System of appointing judges, Vice President Jagdeep Dhankar has shared his views on the Basic Structure Doctrine followed by the courts. Mr Dhankar has contended that the Judiciary cannot violate “parliamentary sovereignty,” by following this doctrine. This opened a debate on the doctrine of separation of powers and judicial overreach. The Basic Structure Doctrine, laid down by the Supreme Court in its landmark Kesavananda Bharti verdict says that the Legislature can amend the provisions of the constitution including the Fundamental Rights enshrined in Part III, as long as it does not interfere with the basic structure of the Constitution.
THE ORIGIN OF THE DOCTRINE
The Kesavananda Bharti verdict was delivered during a period of controversy between two pillars of government. Four Constitutional Amendments were under challenge in this case, surprisingly the court upheld the amending power of the Parliament, however, it created a limitation. Amendments could not change the basic structure of the constitution, these were basic features of the Indian State such as the supremacy of the constitution, democracy, equality, liberty, etc. It emphasized that the judicial review was a system of “checks and balances,” to ensure harmony among the pillars of government and avoid improper use of power by Parliament.
The doctrine was first applied in the case of Indira Gandhi v Raj Narain, convicting the then Prime Minister India Gandhi of electoral malpractices, declaring her candidature invalid. After the 1975 emergency, the doctrine was applied again in the Minerva Mills case, about the 42nd constitutional amendment. This upheld the court’s power to review constitutional amendments.
Over the years, several cases were decided that used this doctrine and increased its ambit. In the case of S.R. Bommai v Union of India the court opined that federalism was a basic feature of the Indian Constitution. The states had constitutional validity and were not agents of the centre. The I.R. Coelho case decided that all laws and actions of the Center were subject to judicial review, despite being in the ninth schedule. Earlier laws in the ninth schedule were valid and could not be reviewed by the judiciary, which would often lead to the centre adding laws declared unconstitutional into the concerned schedule. This application of the basic structure doctrine again ensured that laws in force were always constitutional and the centre would be bound by certain limitations.
This doctrine has been criticized by the centre time and time again, often in the context of judgments striking down certain laws or amendments. Arguments often claim that the power of judicial review is “undemocratic,” as judges are not elected by the people. Vice President Dhankar’s major argument defending parliamentary sovereignty was that it is an elected body, expressing the will of the majority. He states he does not subscribe to such a view. Cites the National Judicial Appointments Commission Act and the states how it stands as an example of judicial overreach. He backs his argument by saying that the act had no dissenting voice in either house of Parliament, except one in the Rajya Sabha, only for it to be struck down by the top court.
In response to these statements, Hon’ble Chief Justice of India D.Y. Chandrachud stated that the basic structure doctrine is a “north star, which guides interpretation of the constitution.” He argued that the migration of this doctrine in neighboring nations like Pakistan, Bangladesh, and Nepal is a great triumph, and proof of the need for such a doctrine in a democracy.
CRITICALLY ANALYSING THE SITUATION
With a rapidly developing India, the needs of society are indeed changing. This calls for a liberal interpretation of the constitution and amending it. The Indian Constitution has been amended by the legislature several times to meet the current needs, some amendments upheld, and some have been struck down.
It is important to acknowledge that until and unless a law or action is challenged and brought to the court, it is considered valid and enforceable. Mere passing of a law does not render it subject to judicial review. The system requires the active participation of citizens, committed to enforcing their rights. Judicial review serves as a means to regulate the activities of the legislature. The Basic Structure Doctrine does widen the ambit of Judicial Review to protect democracy. If parliament has unlimited power to amend elements of the constitution, it can completely change the character of the Indian State. It can give itself arbitrary powers and create an India that was unforeseeable for our forefathers.
The Basic Structure doctrine is challenged often on the ground that it is not anywhere mentioned in the constitution. However, it has merely been derived through interpretation, to protect the Constitution. We have seen former governments making amendments that give them arbitrary powers to make amendments that strip citizens of basic fundamental rights. A strong-standing example of this is the passage of the 39th Constitutional Amendment, which immunized the appointment of the President and Prime Minister for Judicial Review. The Court used the Basic Structure Doctrine to declare this amendment unconstitutional, without this Doctrine, there would be grave consequences.
To conclude that the Basic Structure Doctrine in no shape or form violates the Doctrine of Separation of Powers or Parliamentary Sovereignty. It further solidifies the system of checks and balances that Indian polity is reliant upon. It protects not only the rights of the majority, but the minority too. The parliament’s will is not supreme, the constitution is. This Doctrine protects the constitution and preserves its true form while keeping it in check with modern needs.
Author(s) Name: Mahek Gupta (Hidayatullah National Law University, Raipur)
 Sumeda, Understanding the ‘basic structure’ of the Constitution and Jagdeep Dhankar’s criticism of it, The Hindu, (Jan. 25, 2023, 11:05 PM), <https://www.thehindu.com/news/national/explainer-basic-structure-constitution-jagdeep-dhankar-criticism-kesavananda-bharati-supreme-court/article66379371.ece>
 Kesavanda Bharti v. State of Kerela, AIR 1973 SC 1461.
 SUMEDA, supra note 1.
 Indira Nehru Gandhi (Smt.) v. Raj Narain, 1975 SCC (2) 159.
 Minerva Mills Ltd. & Ors v. Union Of India & Ors, 1980 AIR 1789.
 S.R. Bommai v. Union Of India, 1994 SCC (3) 1.
 I.R. Coelho v. State Tamil Nadu, 2007 2 SCC 1.
 Sharmeen Hakim, Basic Structure Doctrine A North Star Which Guides Interpretation Of Constitution: CJI DY Chandrachud, Live Law (Jan. 21, 2023, 12:54 PM), <https://www.livelaw.in/top-stories/cji-the-basic-structure-doctrine-a-north-star-219592>
 INDIA CONST. art. 71, amended by The Constitution (Thirty-Ninth Amendment) Act, 1975.