Explained: The Basic Structure Of Indian Constitution

The Supreme Court's use of the "basic structure" doctrine to invalidate the constitutional amendment supporting the National Judicial Appointments Commission (NJAC) Act, according to Vice President Jagdeep Dhankar, is a serious violation of "parliamentary sovereignty."

Vice-President Jagdeep Dhankar attacked the principle itself, saying that it set a "wrong precedent" and that he "doesn't subscribe" to the idea, while criticising the Supreme Court's decision to invalidate the NJAC Act as a violation of the basic structure of the Constitution, a principle that the high court established in its 1973 Kesavananda Bharati verdict.

What is NJAC?

The Constitution (99th Amendment) Act, which created the NJAC and the NJAC Act, was approved by Parliament in 2014 in order to replace the Collegium system with a commission for appointing judges. In essence, this would increase the government's influence over judicial selection.

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The Union Minister of Law and Justice, two senior-most Supreme Court judges, the Chief Justice of India, the Prime Minister, and the Leader of the Opposition in the Lok Sabha were to serve as ex officio members of the NJAC. Two eminent members of civil society, one of whom would be nominated by a committee made up of the CJI, the Prime Minister, and the Leader of the Opposition in the Lok Sabha, and the other from the SC/ST/OBC/minor

The laws were repealed in October 2015 after the Supreme Court struck them down.

What does the basic structure doctrine mean?

The "basic structure doctrine," or any similar principle by another name, asserts that a nation's Constitution or any other founding document contains certain elements that cannot be changed, superseded, or entirely eliminated. This was derived from Kesavananda Bharati (KB) as case law in India and has been used as a benchmark for the constitutionality of many laws through judicial review.

The doctrine defends the fundamental principles of the legislative branch's potential majoritarian tendencies. In the KB ruling, the SC says, ¡°After World War II when the disastrous effects of the positivist doctrines came to be realised, there was reaction in favour of making certain norms immune from amendment or abrogation. This was done in the Constitution of the Federal Republic of Germany.¡±

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What is the Basic structure of India¡¯s Constitution?

In KB, the full SC bench held (by a 7:6 majority) that while Parliament had both legislative and constituent powers (including the ability to change the Constitution), the constituent power itself was subject to substantive restrictions. However, there was disagreement regarding what made up the fundamental structure. For example, only six of the judges agreed that basic rights were a part of the framework. However, some of the 11 judgements (including the minority-view judgements) in the case indicated significant "inviolable" boundaries.

The supremacy of the Constitution, the republican and democratic forms of government, secularism, the separation of powers, federalism, fundamental rights, and guiding principles are a few of these. However, the SC determined in KB that this list was not all-inclusive. The SC upheld judicial independence as a component of the fundamental structure in the NJAC ruling in 2015.

The ongoing evolution

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The constitutional authority of Parliament has been contested almost continuously since the Constitution's adoption. Parliament added the Ninth Schedule to the Constitution in the very first amendment to the document in order to shield some laws from judicial review following unfavourable rulings in the majority of the early challenges. In the cases of Sankari Prasad (1952) and Sajjan Singh (1955), the SC upheld the total and unrestricted nature of Parliament's constitutional authority.

The foundation of the basic structure was laid in 1967's Golaknath case, where a 6:5 majority decision of the Supreme Court found that the Constitution's core provisions required a more thorough procedure than was customary if they were to be changed.

In response to the nationalisation of banks and the elimination of the privy purse, the government of the day again appropriated significant powers to amend the Constitution through a number of amendments between July 1971 and June 1972. These were contested by the parties involved, which resulted in the KB verdict. Since then, numerous SC rulings, including those in the Election Matter (1975), Minerva Mills, and Waman Rao, have upheld and strengthened the basic structure concept.