Thursday, April 25, 2013

Basic Structure Doctrine

It would be safe to assume that a large number of Indians feel that had it not been for the Supreme Court, the country would have been up for grabs. To grab, in the pecking order, would be the nefarious political class and various kinds of mafias from media to mining. The existence of democracy, however kinked, whether we agree or not, or delineate all its pitfalls, is at the very core of the nation. It is power of people, even though muted and suppressed, which is responsible for checks and balances. Any idea of subversion of this fundamental structure, detailed in lengthy and well constructed English in the constitution of India, would in all likelihood lead to chaos, anarchy, authoritarianism, and its entire evil ilk.
Such an attempt at subversion was thwarted exactly 40 years back by the Supreme Court; in the now famous Kesavananda  Bharati vs State of Kerela case. On 24th of April, 1973, the honourable Supreme Court ruled, by a slender margin of 7-6, that the Parliament is not enabled to change the basic structure or framework of the Constitution. Thus the ‘basic structure’ doctrine came into being which has saved the Indian democracy in dire situations.
Well for the simple civics of it, as we have read in school books; the parliament of the country comprising of members of parliament, chosen from amongst the people, frame laws. Laws are established based on the Constitution. Reforms and amendments can be made to the constitution if the Parliament in majority agrees to do so. Therein lays the catch. Thus the question arises whether a majority of MP’s change the constitution so as to alter the fundamental rights? Or provide immunity against laws to themselves or others? It was this very answer which was provided by the Supreme Court ruling 40 years back.
In February of 1970, Kesavananda Bharati, a senior seer of a Hindu Mutt in Kasargod, Kerela, challenged the government of Kerela, which using land reforms act placed restrictions on the Mutt’s management of property. The case was taken up by legendary Nani Palkhivala, a champion of civil democratic reforms. The hearing of the case took a long 5 months. In the two years that the case was fought, great deal of citations of cases of several countries, constitutions of several countries, were brought to the fore.
In the end the Supreme Court judges ruled in favour of Kesavananda Bharati, and as fallout described the basic structure of Constitution. They allowed for amendments and changes to it by the Parliament, but changing it in which changes the basic fundamental nature was restricted. But why is it so important? In the context of past the best example was the case of Indira Gandhi, whose majority government during Emergency wished to amend the constitution which would provide immunity to PM, Governors, President for all their life; she wished to subvert her disqualification from Allahabad constituency. And such an impact on democracy was protected by ‘basic structure’ doctrine.
In contemporary times, given the quality of Indian polity, the disenchantment of the masses, the scale of devious acts by representatives, it could be a scary thought if totalitarianism, autocracy, religious high-handedness, regionalism, would be formulated as laws of the land. In the backdrop of such possibilities, exactly 40 years back, thanks to spirited efforts of Supreme Court judges and arguments of Nani Palkhivala, the subversion of democracy, the fiddling with fundamental rights is kept under check.


  1. Democracy: Boon or bane? The bedrock of Indira Gandhi's prime ministerial regime was based on quashing the option of democracy and tampering with the fundamental rights. Interestingly, it is said that the day when emergency was relaxed, train started arriving late. Regardless of the regime(autocracy or democracy), the victory has always been of the people with vested interests.

  2. A good piece on an aspect which has kept some faith in our system. But it is handicapped by the no support from the government and continuous snubbing.


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