Sunday, September 02, 2007

Defining the 'basic structure' of the Constitution

'Judicial overreach' has become a vexed issue for the political class and even those outside it will agree that the judiciary sometimes goes overboard in its activism. More than anything else, the Supreme court's ruling in 2007 ( IR Coelho vs state of Tamil Nadu) has the potential to create big waves on this subject.

In that case, the SC ruled that the power of judicial review extends to the Ninth Schedule of the Indian constitution. Under the Constitution, as amended in 1951, legislations inserted into the Ninth Schedule cannot be challenged on the ground that they violate the fundamental rights of the Constitution. In the 2007 ruling, however, the SC pronounced that it had the power to review legislations in the Ninth Schedule if they violated the 'basic structure' of the Constitution. The doctrine of 'basic structure' was propounded by the SC in the now famous Kesavananda Bharati case in 1973.

In the EPW (August 4-10), Madhav Khosla notes that following the ruling in the Coelho case in 2007, it is now open to the SC subject all legislations incorporated into the Ninth Schedule post April 24, 1973 to judicial review. One immediate implication, as others have pointed out, that the provision of quotas upto 69% in Tamil Nadu can now be challenged.

Khosla believes that, given the record of judicial activism in the recent past, such 'unbridled power of judicial review' is not desirable. He suggests that the SC clearly define what it means by 'basic structure' instead of preferring to apply the test of 'basic structure' on a case by case basis.

I am no legal expert but I doubt that it is possible or desirable for the SC to define the 'basic structure' to encompass all possibilities. Situations could arise that are incompatible with the spirit of 'basic structure' but that had not been taken into account in any definition. It is far more preferable for the courts to exercise judicial restraint and, of course, to push ahead with proposals to usher in greater accountability in the judiciary in general.


Sushant Sinha said...

I think you make two points. Is it desirable for the court to define basic structure? Is it possible to define basic structure in "all cases"?

The answer to the first one is clearly yes. If the court did not bring about the doctrine of basic structure, then the legislatures will amend the constitution to suit their needs. This renders the constitution completely impotent with no protection of individual rights. So court oversight on unconstitutional laws is clearly

It is not possible to define "basic structure" in all possible conditions. But that is the interesting part of "basic structure". It only protects the basic structure of the constitution and allows legislators to make laws to change every other thing. In the keshavananda bharti case, the court took significant effort to say what in constitution constitutes "basic structure". For example, Part 3 of the constitution that covers fundamental rights is with in the "basic structure" doctrine.

Though we may like and even trust legislatures to make laws for the overall good of the society, they often fail in their judgement. In these circumstances, having a Constitution to restrict legislatures and court to enforce its dictates is required.

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