Vice President Dhankar’s stance on basic structure doctrine ominous for Indian democracy

The basic structure of the Constitution has been given to us by the Constituent Assembly, which was not a partisan body and cannot be overridden by a fractured will mandated through an election.

Jagdeep Dhankar.
Jagdeep Dhankar.

K Raveendran/IPA

Are Vice President Jagdeep Dhankar and law minister Kiren Rijiju waging a proxy war on behalf of the Narendra Modi government? It would seem that the Supreme Court Collegium happens to be just a prop and the real target is the Constitution, which the ruling party considers as a hindrance to the pursuit of its isolationist agendas.

While it began as potshots on the judiciary, the fight has transformed into a full-fledged war, with Dhankar lately taking direct aim at the Constitution.

Addressing the All India Presiding Officers Conference the other day, Dhankar did not disguise his displeasure against the judiciary, which he considers as an adversary in his idea of parliamentary democracy. He asserted that parliamentary sovereignty and autonomy are quintessential for the survival of democracy and cannot be permitted to be compromised by the executive or judiciary.

The Rajya Sabha chairman had in his maiden speech to the house described the Supreme Court’s action in striking down of the National Judicial Appointments Commission Act in 2015 a severe compromise  of parliamentary sovereignty and disregard of the of the people.

At the presiding officers’ meeting, he went a step further and challenged the basic structure doctrine, established in the landmark 1973 Kesavananda Bharati case verdict, which mandated judicial review of all laws made by legislatures to ensure they were in accordance with the basic structure of the Constitution.

According to him, the Kesavananda Bharati case verdict set a bad precedent and if any authority questions Parliament's power to amend the Constitution, it would be difficult to say 'we are a democratic nation'.

“If any institution on any basis strikes down the law passed by Parliament then it will not be good for democracy and it would be difficult to say we are a democratic nation,” he said.

There is no doubt that the will of the people are supreme. But the will that Dhankar has in mind is a fractured will that is valid for only five years for which the people have elected a government. People can change that ‘will’ after five years and there is no permanency to it as the Vice President and the loyal bhakths of Narendra Modi seem to believe.

The will that adopted the Constitution is much larger than the will given expression to through an election. The basic structure of the Constitution has been given to us by the Constituent Assembly, which was not a partisan body and cannot be overridden by a fractured will mandated through an election. This is where Dhankar, in spite of having been a lawmaker as well as lawyer, has made a grave error.

A government voted to power for five years cannot usurp the rights and privileges of posterity and its mandate is limited to administering the nation for the limited period of its tenure. It will be gross injustice to the future generations if the present government decides their affairs on the basis of its limited wisdom and outlook. Such policies have to be formulated after broad discussion and consultations, similar to the proceedings of the Constituent Assembly, and not on the basis of what the ruling party may be thinking at a particular point of time.

It is a dangerous proposition to consider the limited mandate given to a government as a blank cheque for all times to come. Parliament cannot pass a law for self-annihilation, even if the ruling party enjoys 100 percent majority in the house.

No single legislature can claim to represent the entire body of people, which is comprised of diverse elements that do not lend themselves to a single approach, faith or party affiliation. A democracy allows play for each of these and majoritarianism is the very antithesis of democracy.

The basic structure doctrine was established in a 7-6 verdict by a 13-judge Constitution Bench which ruled that the basic structure of the Constitution is inviolable, and cannot be amended by Parliament.

The power of judicial review enjoins on the courts the mandate to strike down any law that is found to damage or destroy the basic features of the Constitution. It takes sustenance from the concept that the fundamentals of the Constitution are beyond the means of legislatures elected for limited periods.

 (IPA Service)

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