Day 2 – Q 1.Does in your opinion the basic structure doctrine undermine parliamentary sovereignty? Critically examine.
1. Does in your opinion the basic structure doctrine undermine parliamentary sovereignty? Critically examine.
क्या आपकी राय में मूल संरचना सिद्धांत संसदीय संप्रभुता को कमजोर करता है? समालोचनात्मक जांच करें।
Basic structure as a doctrine was devised by supreme court in Kesavananda Bharati case on April 24th 1973. This doctrine puts restriction on amending powers of constitution guaranteed under article 368 and made basic structure an important element among the Laws of land.
Basic structure doctrine undermines parliamentary sovereignty:
- Restriction on amendment powers: It restricts parliament to introduce new laws or scarp any old laws which are no more required. For instance, preamble states India has a socialist country but since 1991, India has followed capitalism in principles.
- Due process of law: Constitution established “procedure established by law” but it was replaced by “due process of law”, which gives power to judiciary to scarp any laws. Even though not arbitrarily, but still it affects law making power of parliament.
- Against constitution: Preamble of the constitution says people are sovereign (Give to ourselves this constitution) and they passed on this power to elected representatives but judiciary has taken over to itself in name of Judicial review.
- Ambiguous in nature: There is no proper definition or what constitutes basic structure. With passage of time, the contents of basic structure are increasing and over time it is feared that parliament may lose its value and power to judiciary to enact and implement laws.
- There are various instances where it can be proved that judiciary has restricted parliamentary powers like in case of NJAC bill ( 99th amendment to constitution), Aadhaar bill ( diluted provisions of bill), Set aside reservations in promotion and above 50% reservation in states granted by certain state governments.
Basic structure doctrine enhances parliamentary sovereignty rather than undermining it:
- Check on arbitrary use of power: Judiciary does not take away amendment powers or power to make laws, it just places certain restrictions in order to enhance democratic principles.
- Effective and efficient laws: Basic structure helps in increasing culture of debate which helps in bringing effective and efficient laws for welfare of people.
- Democracy: Basic structure has protected and promoted democracy or else India would have become a dictatorship or taken over by armed rebellions like Pakistan, Afghanistan etc.
- Supremacy of constitution: It places restriction on any institution gaining immense power or power over others. It helps in maintaining supremacy of constitution and its principles.
- Political ideology: It prevents India from becoming battle ground for different ideologies or change the country according to specific ideologies or ideologies of party in power.
- Certain instances where basic structure has enhanced parliamentary sovereignty can be, Ordinance for SC/ST act to nullify SC order, placing Fundamental rights and DPSP on equal footing, Triple talaq ordinance to give effect to SC order on Triple talaq etc.
India is the only country with basic structure doctrine, there has been criticism as well has appreciation for the same. There is no such thing as entirely good or entirely bad but we have to decide between which offer more good than the other.
Best answer: Ankita