Saving the Constitution from the BJP’s onslaught

  • Rajiv Sharma

In a momentous speech, which is perceived by the observers as a set back to the BJP’s dubious designs aimed at emasculating the Apex Court’s powers of ‘Judicial Review’, Dr. D.Y Chandrachud, Chief Justice of India, stoutly defended the ‘Basic Structure Doctrine’ authored by a 13-judge Constitution bench 50 years ago. The CJI was speaking in an event in Mumbai organized by Nani Palkhiwala Memorial Trust. The Constitution Bench, which gave the path-breaking ‘basic structure doctrine’ to the country in Kesvananda Bharti case in 1973, stipulated that although the Parliament possesses the powers to amend the Constitution but any such amendment that attempts to alter, dilute or violate the basic structure of the Constitution would be invalid. While commenting on the judgment, the CJI stated with a sense of fulfilment, “The doctrine of basic structure is like the North Star, which guides and gives a certain direction to the interpreters and implementers of the Constitution, when the path ahead is convoluted”.

Indeed, the ‘basic structure doctrine’ came about like a shining star over the legal horizon of India in 1973 with a pious objective to prevent a possible majoritarian driven assault on the Constitution of India. Although the judgment did not define the contours of the ‘basic structure of the Constitution’ subsequent case laws and Judicature have made it amply clear that the features like Supremacy of the Constitution, Secularism, Parliamentary system of democracy, Rule of Law, Apex Court’s power of Judicial review, Sovereignty, Liberty, Federal structure, Unity and Integrity of the country, Republic nature of Indian polity and rights of equality among other Constitutional provisions form the basic structure of the Constitution. The significance of this theory can be gauged from the fact that many eminent jurists have, on numerous occasions, expressed their opinion with satisfaction that the doctrine has been instrumental in safeguarding and strengthening democracy in India in the face of the right-wing onslaught on the legacy of the freedom struggle and constitutional values accrued the reforms.

It is pertinent to recall that Constitution of India is a visionary document, which contains many wonderful humanitarian, pluralistic and right-based provisions. Such provisions could find their way into the Constitution as a result of the philosophy and the ethos that emerged out of India’s glorious freedom struggle. However, the events during the freedom struggle and thereafter in the passing decades after independence, suggest that an antagonistic ideological stream, which ran contrarian to the humanistic ideals of equality, secularism, inclusiveness, social and economic justice and provision of special provisions for the weak and the downtrodden, has always been running in Indian polity. Obviously, the forces of Hindutva represented by the RSS, the BJP and erstwhile ‘Jan Sangh’ found it hard to fully accept and adopt the vision and ethos of the Constitution of India as their ideas and mindset shaped by the fascist forces flourishing in 1920s and 30s and their seminal belief in feudalistic and Manuvadi ideology, placed them in a position of direct conflict with the aforementioned lofty principles, so emphatically enshrined in the Constitution.

This ideological conflict was albeit, unequal, till the last decade of the last century, when the BJP began to gain political mileage in some parts of the country. Nevertheless, the protagonists of democratic traditions were always concerned since independence that if and when the Sangh Parivar became capable of gaining majority in the Parliament, it could make serious attempts to subvert the foundational provisions of the Constitution. The conduct of the BJP governments during last eight years both in and outside the Parliament has undoubtedly demonstrated that such fears were not unfounded. The citizens are now forced to bear with a pliant Media, a compromised Election Commission and the yielding Law enforcement agencies, which has severely undermined the fundamental rights and privileges of the common people as well as of the political adversaries, who are not scared to express their opposition to the divisive and anti-Constitution ideology of the BJP.

The Modi government went overboard to pursue BJP’s hidden agenda. In order to interfere in and influence the appointment of High Court and Supreme Court judges a ‘National Judicial appointments Commission’ (NJAC Act) through 99th Constitutional amendment was passed in 2014, which gave a crucial role to the government in judicial appointments. However, the Supreme Court invoked the doctrine of basic structure to quash the NJAC Act, 2014. Peeved at the setting aside of the Amendment, various organs of the government began to put pressure on the higher judiciary in many ways. Common among them was delaying the recommendation of the collegium for appointment of judges. In addition, the Union ministers never missed an opportunity to attack the working of the Supreme Court collegium, where five Senior-most judges make recommendations of judicial appointments and transfers.

While all this was going on, a very potent and serious salvo was fired by none else than the Vice President of India and Chairman of Rajya Sabha, who attacked The Supreme Court for declaring the doctrine of basic structure of the Constitution as law of the land. The Rajya Sabha Chairman opposed the 1973 judgment and categorically asserted that he did not agree with the restrictions imposed by the Apex Court to curtail the powers of the Parliament to amend the basic structure of the Constitution. The onslaught by Jagdeep Dhankar on the Supreme Court is probably aimed at testing waters for a more vicious design of Modi Government to subvert certain Constitutional provisions, which hinder and restrict their communal and divisive agenda, from taking effect. The salvo by the Vice President was promptly supported by Kiren Rijiju, the Union Law minister. The systematically orchestrated attack by the Government functionaries reinforces the suspicion that Modi government considers the doctrine of basic structure as one stumbling block in its way to temper with the pro-people and pro-democracy provisions of the Constitution.

It is worth mentioning here that India is the first country in the world, where the basic structure theory evolved and was adopted 50 years ago. Later, the world began to realize its merits as a remarkable legal thought. The doctrine has since migrated to our neighbouring countries Bangladesh, Pakistan and Nepal. Besides this, varied formulations of the doctrine have also been adopted by Japan, South Korea and many countries in Latin America and Africa. As the Chief Justice of India so aptly articulated during his speech in Mumbai, “Migration, integration and the formulations of doctrine of basic structure in Constitutional democracies across continents is a rare success story of the diffusion of legal thought around the world. What can be the greater honour for us than this!” he proudly asked.

Like the CJI, we the citizens of India should also proudly cherish the fact that the basic doctrine theory, which evolved in India due to intellectual prowess and legal acumen of the indigenous legal luminaries, has been instrumental in stabilizing the shaky political system in some countries around the globe. It is extremely unfortunate that the BJP and its government at the center are desperately attempting to challenge and subvert this wonderful doctrine. It is a matter of grave concern that even a miniscule degree of success for them here could have ominous portents for our country. As Former Union Home Minister P. Chidambaram, while responding to no holds bar criticism of the Supreme Court by the Chairman of the Rajya Sabha, so astutely stated, “Honourable Chairman’s views should warn every Constitution loving citizen to be alert to the dangers ahead”. Elaborating further, the former Home Minister said. “Suppose, Parliament, by a majority, voted to convert the Parliamentary system into a Presidential system or repealed the state list in schedule VII and took away the exclusive legislative powers of the states, would such amendments be valid?” he asked. Obviously, such a scenario would lead to anarchy and chaos of unimaginable proportions.

It is, therefore, the national duty of every enlightened citizen to record their opposition to the criticism of the basic structure theory by the Vice President of India and other BJP leaders to defeat their unholy attempts to dilute the powers of judicial review of the Apex court. All democratic forces who believe in the glorious traditions and ethos of the country as enshrined in the Constitution of India must come together to safeguard the unity, integrity and polity of our secular republic.

The writer is a Spokesperson, Chandigarh Territorial Congress Committee