Is Constitution the new ‘dhancha’ to be brought down?

When Vice President Jagdeep Dhankhar recently raged against the Supreme Court (SC), questioning the Kesavananda Bharati (1973) judgement, what he was in effect questioning was the Basic Structure doctrine that the SC evolved in that ruling, and specifically the court’s power of judicial review over laws passed by parliament. He posited that judicial review was an affront to democracy and parliament’s “sovereignty”. In doing so, Dhankhar knew well that he was reviving an old war for supremacy between the organs of the State -- one that masquerades as a battle between parliament and judiciary for supremacy but is actually the executive’s bid to gain dominance over both judiciary and parliament while using the latter, and notions of “will of the people” and “elected vs unelected” offices, as weapons against the judiciary.

The earlier war for supremacy was waged through a series of cases that brought the Indira Gandhi government and the judiciary into confrontation in the 1960s and 1970s, culminating in the Kesavananda Bharati case judgement in 1973. That judgement essentially answered the question “Is the power of parliament to amend the Constitution unlimited or is it subject to limits?” Put another way, is parliament supreme or is its legislative output subject to judicial review? The Supreme Court settled the matter by asserting that it had the power to review laws passed by parliament in order to safeguard the Constitution.

V-P Dhankhar has now restarted that war by criticising the SC’s 2015 ruling that struck down as unconstitutional the 99th Amendment and the National Judicial Appointments Commission Act, which sought to give the executive a dominant role in judges’ appointments.

To answer the question in Kesavananda Bharati, the Supreme Court evolved the Basic Structure doctrine, to lay down that while parliament had the power to amend any part of the Constitution, it could not do so in a way that damages certain basic principles that underlie the Constitution. While the Supreme Court has never formally and fully fleshed out the whole ‘Basic Structure’, it gave some clarity on the doctrine in the Minerva Mills case, a case that came up after a further attempt by the Indira Gandhi regime to achieve executive supremacy via parliament through the 42nd Amendment.

The ‘Basic Structure’ of the Constitution is essentially the set of principles and fundamental ideas that underpin the provisions of the Constitution and our democracy. Shorn of this ‘soul’, the Constitution would be merely words without force. Fundamental Rights, federalism, secularism, free and fair elections, the separation of powers between the organs of the State and the checks and balances amongst them, etc., are some of the elements of the ‘Basic Structure’. If these are to be preserved against the depredations of a powerful executive – as the Indira Gandhi government was or the Modi government is – and against parliament abridging these features or undermining them, then it must follow that parliament’s power to amend the Constitution must be limited.

And if parliament’s power is to be restrained, it is only a judiciary with the power of judicial review that can do so. The power of judicial review exists therefore to ensure that the Supreme Court as the guardian of the Constitution can do its job.

While the judiciary won the battles in the Kesavananda Bharati and Minerva Mills cases, Indira Gandhi left the judiciary wounded by superseding judges to appoint favourites as Chief Justices and Judges to ensure a committed judiciary and also because the scars on the Constitution due to the several amendments made during her reign (from the 24th Amendment of 1971 to the 42nd Amendment of 1976) remain.

It was in reaction to this tendency of the executive to seek supremacy, to amend the Constitution as it pleased, and to appoint pliant judges, that the Supreme Court enunciated the Basic Structure doctrine and later, using that doctrine and to safeguard it, evolved the collegium system of judicial appointments through a series of Judges Cases, substantively shutting out the executive from judges’ appointments to maintain the judiciary’s independence.

These are, in the main, the lessons our republic learnt and applied from Indira Gandhi’s war for supremacy and the Emergency. Now, those who claim to have fought the Emergency and who have risen to prominence and power on that claim are seeking to tear up those lessons so that they themselves can do what Indira Gandhi could not fully achieve. One may not expect Union Law Minister Kiren Rijiju to understand these deep issues or to respect the wisdom and courage of the judiciary, but to hear V-P Dhankhar attack the Basic Structure doctrine and for him to claim that parliament is sovereign is either a case of lessons forgotten or an attempt to fit into the political climate of the present – which resembles that during the Emergency -- and serve a master other than the Constitution on which he has taken the oath of office.

Indira Gandhi’s attempts to hammer the Constitution into a shape that suited her purpose had left the Constitution weakened by 2014. It had become the new ‘dancha’, as it were. ‘Dancha’ – unused, dilapidated structure -- was how the BJP described the Babri Masjid, which its Sangh Parivar cadres tore down in December 1992, egged on by cries of “Ek dhakka aur do”. Now, it seems, some elements in the BJP want to do the same to the Constitution. In the silence of the Prime Minister and in the cheerleading of Rijiju and Dhankhar, one can hear “Ek dhakka aur do.”

Thus, we have not only Rijiju attacking the collegium system and Dhankhar hitting at the power of judicial review, but also governors in non-BJP-ruled states shredding constitutional morality and the idea of federalism to become political actors on behalf of the Centre and the ruling party; and then, there’s the Parivar’s Sarsanghchalak, Mohan Bhagwat, launching a broadside against secularism – another part of the Basic Structure. Some say these are all individual actors acting on their own, some to please Prime Minister Modi, some to gain relevance in his shadow, some just mindlessly. Whatever the motivations and intentions of the actors involved, the consequences for the Constitution and our democracy cannot be good.

A cautionary tale

The Indian Supreme Court’s ‘Basic Structure’ doctrine was inspired (as far back as 1965, cited by Justice Mudholkar) by the “fundamental features” doctrine enunciated by the Chief Justice of Pakistan A R Cornelius in 1963, when he held that the President of Pakistan, who had been given executive powers by the country’s 1962 Constitution, could not alter the “fundamental features” of the Constitution. But 10 years later, in 1973, the Pakistani Parliament went on to write a new Constitution, which required all laws to be in conformity with Islamic injunctions and created Shariat courts. We know where Pakistan has ended up today with that rewriting of the Constitution by Pakistan’s parliament. Do we want our parliament, whether dominated by Indira Gandhi’s Congress or by Narendra Modi’s BJP, to amend our Constitution as it sees fit and take us down a similar path?