7 December 2024 : Daily Answer Writing
Q1) The basic structure doctrine has the potential to disrupt the principle of separation of power in favour of the judiciary. Critically Examine.
(150 Words/10 Marks)
Solution:
The basic structure doctrine is a judicial principle introduced by the Supreme Court in the Kesavanada Bharti Case [1973]. It stipulates that there are certain basic features of the Indian Constitution which cannot be altered or removed by the legislature.
Potential to disrupt separation of power in favour of the judiciary:
- Foraying into the domain of Legislature: (a) asserting the power to review and potentially invalidate laws and constitutional amendments; (b) Verdicts using Doctrine of Essentialism on Sabarimala and Triple Talaq leading to the phenomenon of ‘Judicio Papism’.
- Limiting Parliamentary Sovereignty: (a) undermining the sovereign will of the elected representatives; [e.g., Vishakha guidelines]; (b) binds the Parliament in perpetuity; problem of super-parliament above the parliament. E.g., striking down 99th CAA meant for judicial reforms; (c) Pre-emptive direction on critical social reforms like same-sex marriage etc.
- Foraying into the domain of Executive: (a) giving executive directions without domain expertise and mandate. E.g., Ordering that BS IV cannot be sold after March 30,2020; Banning of Liquor outlets 500 metres around National and State Highways.; (b) imposition of rules at the whims/ideas of judges e.g., Mandatory playing of National Anthem in movie theatres
- Resulting in an activist judiciary: (a) Comments on environmental issues like Cheetah reintroduction. (b) Using Article 142 (to do complete justice) cancelled coal block allocation (c) Reforming private bodies like BCCI.
However, the Basic structure doctrine it has led to some positive outcomes, such as:
- Filled legislative void in important areas where legislature/executive failed to sere public interest. E.g., Vishakha guidelines on sexual harassment; Prakash Singh guidelines on Police reforms.
- Protection of individual rights: (a) Made passive Euthanasia legal to ensure dignified death (b) right to choose partner brought under the ambit of Article 21.
- (a) Placing checks upon majoritarianism in the legislature and arbitrary use of power by the executive; (b) protected the constitution from political mutilation.
- Making sure that constitutional amendments do not lead to rewriting of the constitution.
- Basic structure has often been credited to have prevented the Indian state from collapse after independence as has been the case in India’s neighbourhood.
Zia Mody in her book “Ten Judgements That Changed India”, gives an important place to Kesavananda Bharti Judgement which propounded the Basic Structure Doctrine, because it safeguards the spirit of the constitution. However, any modern democracy is based on the principle of Separation of Powers. Therefore, it is incumbent on the part of Judiciary to practice Judicial restraint
