Basic Structure doctrine guides judges like North Star, says CJI DY Chandrachud after Vice President Dhankhar calls doctrine incorrect

The basic structure of our Constitution, like the North Star, guides those who interpret the Constitution and comes to the aid of judges when the path ahead is convoluted, Chief Justice of India (CJI) DY Chandrachud on Saturday..The craftsmanship of a judge lies in interpreting the text of the Constitution with the changing times while keeping the soul intact, the CJI said."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. The basic structure or the philosophy of our Constitution is premised on supremacy of the Constitution, the rule of law, separation of powers, judicial review, secularism, federalism, freedom and dignity of the individual and unity and integrity of the nation," he stated.He was delivering the 18th Nani Palkhivala Memorial Lecture organised by the Bombay Bar Association in Mumbai.The lecture which largely revolved around Palkhivala, his contributions to law and economics and the CJI's recollections of the eminent jurist, however might have perhaps been a little more than that.The CJI seems to have given a veiled but effective response to Vice President (VP) Jagdeep Dhankhar on the latter's statements about Basic Structure doctrine. On January 11, Vice President had said that the Supreme Court's Kesavananda Bharati judgment of 1973 which restricted the power of the parliament to amend the Constitution is incorrect and started a wrong tradition.The judgment, the VP said, gave the idea that parliament can amend the Constitution but not its basic structure."With due respect to judiciary, I cannot subscribe to this. Can this be done? Can Parliament allow that its verdict will be subject to any other authority? In my maiden address after I assumed the office of Chairman of Rajya Sabha, I said this. I am not in doubt about it. This cannot happen," the VP had said. The Vice President was speaking at the 83rd All India Presiding Officers’ Conference in Jaipur.Prior to that, Dhankar had also said that India might be the only country where amendments made by the parliament to the Constitution have been struck down by courts..In what can only be considered as a detailed rebuttal to the Vice President's claims, the CJI in his speech went on to highlight how the doctrine originated in Germany and was expressly adopted by India before it was approved by many other nations. The CJI began by highlighting Palkhivala's role in the Basic Structure case.But for Palkhivala, India would not have had the basic structure doctrine, the CJI said."Nani shaped the history of contemporary India. When I was thinking what to speak today, I was thinking economics which was his passion. In a way this lecture is a tribute to the lawyer and economist. He dedicated his life to preserve the rights given in the Constitution. If not for Nani we would not have the basic structure doctrine," the CJI said..Specifically on Palkhivala's contribution to the basic structure doctrine, the CJI recounted how the hearing happened before the 13-judge bench, the largest ever in Supreme Court."He represented the petitioners in Kesavananda Bharati, the largest ever Constitution Bench. And he brought about the doctrine of basic structure....But the hearing did not go about as planned. He was stormed with a barrage of questions from the Bench...He prepared thoroughly. There was a young girl who visited the hearing. She asked one day who is this young man who is interrogating these well dressed sitting gentlemen....The hearing lasted for 66 days for 5 months and he argued for petitioners for 31 days. While Parliament had power to change any part of Constitution it could not do so by changing the basic structure of Constitution. It was a slime 7-6 ratio, but it is still a judgment of 13," the CJI said..The CJI then chose to highlight the importance and utility of the doctrine in India. "The Constitution was carefully drafted over a long period of two years by the popular leaders of the nationalist movement and gained legitimacy in the eyes of the Indian citizens. The Constituent Assembly created a truly transformative and eclectic Constitution. The identity of the Indian Constitution has evolved through the interaction of Indian citizens with the Constitution and accompanied by judicial interpretation," he said.He also traced the roots of the doctrine to German scholar Professor and how the doctrine has travelled to different jurisdictions since then. "The influence played by a German Scholar, Dietrich Conrad, in sowing the seeds of the doctrine of basic structure in India in the groundbreaking judgement of Kesavananda is perhaps now well known. Professor Conrad was influenced by the works of German jurist Carl Schmitt. Conrad contended that the key component of Schmitt’s theory - that an amendment could not change the basic structure of the Constitution was relevant to the Indian context.13 According to Conrad, any amendment which effects changes amounting to a practical abrogation or total revision of the constitution was impermissible. During his tour in India, Conrad delivered a number of lectures and authored multiple articles, which often made use of extreme hypothetical examples to emphasise why implied limits were necessary — his hypotheticals included imagining the Parliament using Article 368 to change Article I by dividing the entire India into two just states," the CJI said.On how the doctrine came to India, the CJI elaborated,"The theory of implied limitations migrated from Germany to India in a politically fraught time of the 1960s. The executive and judiciary were charting their own paths of judicial review on Parliament’s plenary power to amend the constitution in the backdrop of Parliament’s expansive economic policies. In fact, Professor Conrad had delivered a lecture at the Banaras Hindu University on the basic structure doctribe only months after the India Parliament had introduced the contentious 17th Constitutional Amendment which included 44 more land reform legislations in the Ninth Schedule. One of the articles written by Professor Conrad, titled “Limitations of Amendment Procedures and the Constituent Power”, published in the Indian Yearbook of International Affairs in 1970, was relied upon by Palkhivala during his oral submissions in the Kesavananda Bharati case. The Supreme Court actually cites Conrad’s article at 5 different places in the Kesavananda Bharati judgement," the CJI explained..After India adopted the basic structure doctrine, it migrated to our neighbouring countries such as Nepal, Bangladesh, Pakistan, the CJI further said."The Appellate Division of the Supreme Court of Bangladesh adopted the Indian basic structure doctrine in its 1989 case, Anwar Hossain Chowdhury v. Bangladesh, which expressly refers to Kesavananda case, where it struck down a constitutional amendment which affected the Judicial Review jurisdiction. Yaniv Roznai, a constitutional law scholar, says that there is a global trend towards accepting the idea of limitations — explicit or implicit — on constitutional amendment powers. Different formulations of Basic Structure doctrine have now emerged in South Korea, Japan, certain Latin American and African countries. The migration, integration, and reformulation of the doctrine of basic structure in constitutional democracies across continents is a rare success story of diffusion of legal ideas in our interconnected world," the CJI underlined. .Over the last 12-odd months, the executive has taken potshots at the judiciary.Union Law Minister Kiren Rijiju has not held back at expressing his reservations with the existing system of appointing judges through the Supreme Court Collegium.Among other things, Rijiju had said that until the procedure for appointment of judges is changed, questions regarding pendency of cases in Indian courts will continue to be raised.He had recently to written to CJI DY Chandrachud suggesting that government representatives be included in the Supreme Court and High Court Collegiums.Vice President Dhankhar, himself a Senior Advocate, has also been critical of the Collegium.The Collegium had recently hit back with a series of resolutions publish on the Supreme Court website on Thursday highlighting in detail why the Law Ministry was blocking the candidature of many lawyers for judgeship..The fact that the CJI chose to elaborately dwell upon the Basic Structure at a time when the Supreme Court and the executive are at loggerheads over manner of appointment of judges might be the indicator that the top court will back the Kesavananda Bharati judgment, at least in the near future.

Basic Structure doctrine guides judges like North Star, says CJI DY Chandrachud after Vice President Dhankhar calls doctrine incorrect

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