Time’s Come To Draw New Lines

Source– The post is based on the article “Time’s Come To Draw New Lines” published in “The Times of India” on 22nd August 2023.

Syllabus: GS2- Judiciary

Relevance: Issues related to functioning of judiciary

News– Ranjan Gogoi, a former Chief Justice of the Supreme Court, put forth the notion that the concept of the basic structure is subject to debate.

What are some facts about basic structure?

The Kesavananda Bharati judgment was delivered by a 13-member constitutional bench in 1973. It introduced the concept of “basic structure”.

The bench said that there are some things in the Constitution that even Parliament cannot change.

What are issues with the basic structure?

Lack of clarity– There is a question regarding the extent to which SC can interpret the concept of the “basic structure.” The judiciary has not yet provided clear guidance on this matter.

Varying perspectives among judges– As per Ranjan Gogoi, the concept of the basic structure is subject to debate.

The current Chief Justice had expressed that the basic structure serves as the “North Star” guiding jurisprudence.

 Historical perspective– When the Kesavananda verdict was delivered in April 1973, it carried a narrow majority of 7-6. The panel of 13 judges produced a total of 11 separate opinions.

The consensus was shaped by the then Chief Justice, SM Sikri. He presented a six-point “majority view” in open court. However, four of the judges declined to do so.

The second proposition stated that “Article 368 does not empower Parliament to modify the fundamental structure or framework of the Constitution.”

The concept of the basic structure did not organically arise from this judgment. Its frequent use to justify judicial interventions is questionable unless the entire idea is thoroughly examined by another constitutional bench.

Political backdrop– Indira Gandhi held considerable power. She wants amendments that would enhance the authority of the executive in pursuing its social agenda.

The judiciary was divided between progressive and conservative factions, and some believed that curbing executive power was imperative.

Extraordinary circumstances can lead to flawed laws. The notion of the basic structure was a product of its era. It warrants a reevaluation and clarification in the context of our times.

Other issues– Certain common-sense “basic” features have been disregarded by the judiciary. A fundamental aspect of the Constitution should involve checks and balances.

There are questions regarding the Supreme Court having authority to exclusively appoint all judges to the higher judiciary.

A dissenting judge in the NJAC case, Justice J Chelameswar, argued that the independence of the judiciary isn’t compromised simply because the Chief Justice isn’t the primary influencer in judicial appointments.

There is assumption that the concept of the basic structure was derived from the thoughts of the constituent assembly that drafted the Constitution.

However, the chapter on fundamental duties was not part of the original Constitution. This was added in 1976 as Article 51A.

A provision introduced a quarter century after the initial Constitution was classified as an element of the basic structure.