Senior Advocate Arvind Datar says “Basic Structure was never accepted by the Government”
Last Updated on February 6, 2023 by Administrator
Senior advocate Arvind P. Datar delivered the 19th justice PD Desai Memorial lecture on the subject “Fifty years of Basic Structure Doctrine: Judicial Overreach or Constitutional Necessity” on 04th February 2023 where he defended the doctrine of basic structure.
This speech can be seen as a befitting reply to Jagdeep Dhankar, the vice president who, last month, criticized the supreme court for striking down the NJAC act 2015 for being violative of basic structure. He said that basic structure has set a bad precedent. Datar’s speech was divided into four parts-
- What led to the basic structure,
- What was the formulation of it,
- How was it applied, and lastly
- Is it really a stumbling block?
In the first part, starting from the judgement of Shankari Prasad v. UOI (AIR 1951 SC 458), he put light on the history. Further, he explained the journey of the establishment of basic structure doctrine in the landmark judgement of Kesavnanda Bharti v. State of Kerala, 1973. He said that immediately, after the introduction of the doctrine of basic structure in 1973, we were able to protect constitutional integrity by upholding article 329 A, which was added in the 39th amendment 1975, as violative of the basic structure. It was recognized that nobody is above the law whether a Prime Minister or a common man. He also Referred to the cases of Indira Gandhi (AIR 1975 SC 865), Minerva Mills (AIR 1980 SC 1789), Sambamurthy (AIR 1987 SC 663), Kihoto Holohan (AIR 1993 SC 412), L. Chandra Kumar (AIR 1990 SC 2263), IR Coelho (AIR 2007 SC 861), etc. to further elucidate the applicability of basic structure.
He said,
Basic Structure was never accepted by the then government. Clumsy attempts were made to review the basic structure which was no less than an embarrassment for the supreme court.
Finally, he discussed whether this doctrine is a stumbling block. He said,” I want to ask the simple question to all those who criticise the basic structure and want to review it again, to give one example of a proposal made by the elected government which has been interdicted or thwarted by the basic structure and was proved to be the hindrance in the social development of the nation.”
He also mentioned NJAC (national judicial appointment commission) act, 2015 which the supreme court struck down as being unconstitutional. he denoted it as an unquestionably, unworkable principle. He said, “when an amendment is struck down by the supreme court, rather than attacking the judiciary, the government should focus on re-doing the law.” He also added that the supreme court has never come in the way of social reform or interrupted the intention of parliament to implement social policy.”
He further said, “I am shocked by the critics of the doctrine and want to ask them, which part of the constitution they wish to revisit. is equality, judicial review and right to speech, not the basic structure? Till today, there is no answer to which part of the basic structure acts as the stumbling block .”
“I sincerely hope that we don’t have to face the occasion to review the basic structure again”
He concluded his speech by stating a quote, “Recorded history does not have one example where a democracy has collapsed because of judiciary overprotecting human rights but no democracy has survived where the legislature legislated an executive power does not have adequate checks.”
He strongly believes that “if this is the start of an Amrit kaal, then the most important sap rishi of republican democracy is rule of law and the basic structure of the written constitution.”
Written By – Shagun
