Tuesday, January 26, 2010

Is the Basic Structure Doctrine counter-majoritarian?

Guest Blogger: Rohan Alva, II Year, Campus Law Centre, Delhi University.

[Synopsis of the lecture delivered by Mr.Raju Ramachandran, Senior Advocate,Supreme Court of India on January 23 at CLC]

Mr. Ramachandran began by pointing out that subsequent to the enunciation of the Basic Structure Doctrine, Parliament had acquiesced to judicial review and had failed to counter the limits imposed on its ability to amend the Constitution and that unfortunately the doctrine has been absorbed without question.

He defined majoritarianism in the constitutional sense as the will of the majority that must prevail; terming it an important essence of democracy and a basic feature of the constitution as well as constitutionalism. However, the definition did not imply brute majoritarianism or that the views of the minority must be ignored. Quoting from the statements made by Mahavir Tyagi and H.V.Kamath in the Constituent Assembly Debates, Mr. Ramachandran pointed out that the Assembly itself was undecided whether it fully represented the will of the people to whom it delivered the Constitution and that the will of a non-majority Assembly was now being interpreted by unelected judges who culled out features and termed them to be beyond the power of amendment.

Mr. Ramachandran argued that the Doctrine has led to a situation where the courts have full freedom to interpret the constitution and in the same vein can hold that the constitution to be supreme; a situation that has met with meek acceptance by Parliament.

Mr. Ramachandran suggested that in order for an amendment to enjoy the support of the majority, it can be subjected to a referendum. However, the Doctrine precludes a referendum for there is no constitutional provision for it and moreover, an amendment, even after a successful referendum cannot be made for it can be hit directly by the Doctrine. This has lead to an anomalous situation in which even the will of the majority cannot be put into action.

On a different note and speaking illustratively, he pointed that if India were to join a SAARC Parliament, it would involve partial but positive surrender of sovereignty but such a step cannot be taken for it is hit by the Doctrine which enumerates sovereignty as a basic feature.

Commenting on Article 112 of the Norwegian Constitution, Mr. Ramachandran stated the Article provides that whilst amending the constitution, the principles embodied in the constitution must not be contradicted. Nothing of this sort is provided in Article 368 of the Indian constitution thereby meaning that Parliament had wide powers to amend the constitution but the Doctrine has limited the ability to amend even though the constitution does not explicitly provide for such limits.

In the interactive session, Mr. Ramachandran suggested that the scale of illiteracy in the country had no bearing on the efficacy of a referendum, for even the illiterates have shown their wisdom during elections. On the question, whether the Doctrine embodies the tussle for supremacy between the Legislature and the Judiciary, Mr. Ramachandran noted that the essence of separation of power is the existence of ‘creative tension’ between these two wings and that each must have the ability to check the other but the supremacy of the judiciary over Parliament has been fortified with the Basic Structure Doctrine.

On a question as to how Parliament could circumvent the Doctrine, Mr. Ramachandran said that would be unable to do so as long as the Doctrine remains applicable and only the Supreme Court is in a position to review it. As a concluding remark, Mr. Ramachandran said that the Doctrine may have saved India from tyranny but in this day and age it no longer served a positive purpose and deserves to be buried.
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