V-P Jagdeep Dhankhar sparks debate with remarks on Basic Structure of Constitution; what is it?

Source: The post is based on the following articles

“V-P Jagdeep Dhankhar sparks debate with remarks on Basic Structure of Constitution; what is it?” published in the Indian Express on 13th January 2023.

“Jagdeep Dhankhar’s criticism of the basic structure doctrine should ring alarm bells” published in the Indian Express on 13th January 2023.

Syllabus: GS 2 – Structure, organization and functioning of the Executive and the Judiciary.

Relevance: About basic structure doctrine.

News: The Vice President of India has addressed the 83rd All-India Presiding Officer’s conference. In that, he criticised the Supreme Court once again, for using the doctrine of basic structure to strike down the constitutional amendment that introduced the National Judicial Appointments Commission Act.

What are the major highlights of the Vice President’s address?

What is the basic structure doctrine, and how was the doctrine developed?

The Doctrine of Basic Structure is a form of judicial review that is used to test the legality of any legislation by the courts.

Under this, the Parliament has vast powers to change the Constitution, but it cannot touch certain “basic features” or foundational principles that give the Constitution its coherence or identity, make it what it is. In short, the Parliament can amend, but not destroy the Constitution.

In the Kesavananda ruling, the Supreme Court cited several aspects of the Constitution that could be identified as “basic features” of the document but added that it was not an exhaustive list.

For example, judicial review, rule of law, federalism, and democratic republic structure are identified as basic features.

In 2015, while striking down the National Judicial Appointments Commission Act, the court held “judicial independence” as a basic feature of the Constitution.

What is the history of basic structure doctrine?

The origins of the basic structure doctrine are found in the post-war German Constitution law. After the Nazi regime, the German Constitution amended some provisions to protect some basic laws.

What are the criticisms associated with the basic structure doctrine criticised?

The Basic structure is a) Not found in the text of the Constitution itself, b) Enables the judiciary to encroach on the Parliament’s powers, c) Makes “unelected judges” to strike down amendments to the Constitution on the basis of this doctrine. This is “anti-democratic and counter-majoritarian.”

Why the basic structure doctrine is essential for the smooth functioning of the Constitution?

Both the legislature (governed by the majoritarian principle) and the court are an integral part of the democratic framework. These constraints help India to maintain the fine balance that makes democracy work better for the people.