Comments on: A Re-examination of the Basic Structure Doctrine http://www.criticaltwenties.in/lawthejudiciary/a-re-examination-of-the-basic-structure-doctrine Powered by Webshore Fri, 03 Apr 2015 22:46:07 +0000 hourly 1 http://wordpress.org/?v=3.3.1 By: Syeda nasrin, Bangladesh. http://www.criticaltwenties.in/lawthejudiciary/a-re-examination-of-the-basic-structure-doctrine#comment-2535 Syeda nasrin, Bangladesh. Thu, 10 Feb 2011 08:21:05 +0000 http://www.criticaltwenties.in/?p=1128#comment-2535 Basic structure is one of the fundamenal method for effectively check and balance of the 3 organs of state. Specially this is crucial in a country written constitution prevails and that constitution empower legislature to amend the constitution. It is a judicial safeguard against the capricious will of the majority autocratic democracy. It also acts as a safe guard against violation of human rights or individual liberty by an autocratic government. Basic structure is one of the fundamenal method for effectively check and balance of the 3 organs of state. Specially this is crucial in a country written constitution prevails and that constitution empower legislature to amend the constitution. It is a judicial safeguard against the capricious will of the majority autocratic democracy. It also acts as a safe guard against violation of human rights or individual liberty by an autocratic government.

]]> By: Shantanu http://www.criticaltwenties.in/lawthejudiciary/a-re-examination-of-the-basic-structure-doctrine#comment-485 Shantanu Thu, 07 Oct 2010 09:19:19 +0000 http://www.criticaltwenties.in/?p=1128#comment-485 Also, Hat Tip for the case- Mihir Naniwadekar. Also, Hat Tip for the case- Mihir Naniwadekar.

]]> By: Shantanu http://www.criticaltwenties.in/lawthejudiciary/a-re-examination-of-the-basic-structure-doctrine#comment-484 Shantanu Thu, 07 Oct 2010 09:17:45 +0000 http://www.criticaltwenties.in/?p=1128#comment-484 Hi Arghya, Thanks for your comments. I am in partial agreement with both the points you make. As to the tests for determining whether the basic structure has been violated, I say 'replace' only because 'does the violation require a rewriting of the Constitution, or result in Parliamentary autocracy at the cost of judicial review' subsumes within it the question of whether the provision being violated forms a part of the basic structure. In other words, the Court is saying that the basic structure is that which, if amended, will require a rewriting of the Constitution or result in Parliamentary autocracy at the cost of judicial review. Hence, while you are right that the provision which is violated still does need to form part of the basic structure, the requirement as phrased by the Court includes this consideration. Secondly, I don't think 'rewriting' is being used in a narrow sense. A quote by Justice Kapadia [para. 8] is particularly useful, where he observes that if principles such as judicial review or separation of powers are violated, it would "require changes to be made not only in Part III of the Constitution but also in Articles 245 and the three Lists of the Constitution resulting in the change of the very structure or framework of the Constitution". I think this explains very clearly what was meant by 'rewriting the Constitution'. As to the whether the inclusion of laws in the Ninth Schedule results in Parliamentary autocracy at the cost of judicial review, I would love to argue that it does, but unfortunately the law doesn't favour that interpretation. What the Court seems to be saying is that individual cases of putting laws beyond the ambit of judicial review is fine (subject to the basic structure doctrine), but reserving to Parliament the absolute right to determine which laws shall be beyond judicial review is impermissible. Now, this may lead one to argue very persuasively that the very inclusion of the 9th Schedule in the Constitution is violative of the basic structure. However, much as there is strength in this argument, the judicial history of the inclusion makes a reconsideration of that question improbable. Thus, one is left only with the question- if the 9th Schedule itself is not violative of the basic structure, is including a particular law in it impermissible? The answer to that has to be in the negative, unless of course, the law strikes at one of the basic features of the Constitution, in which case, even including it within the 9th Schedule does not place it beyond judicial scrutiny. Hi Arghya,

Thanks for your comments. I am in partial agreement with both the points you make.

As to the tests for determining whether the basic structure has been violated, I say ‘replace’ only because ‘does the violation require a rewriting of the Constitution, or result in Parliamentary autocracy at the cost of judicial review’ subsumes within it the question of whether the provision being violated forms a part of the basic structure. In other words, the Court is saying that the basic structure is that which, if amended, will require a rewriting of the Constitution or result in Parliamentary autocracy at the cost of judicial review. Hence, while you are right that the provision which is violated still does need to form part of the basic structure, the requirement as phrased by the Court includes this consideration.

Secondly, I don’t think ‘rewriting’ is being used in a narrow sense. A quote by Justice Kapadia [para. 8] is particularly useful, where he observes that if principles such as judicial review or separation of powers are violated, it would “require changes to be made not only in Part III of the Constitution but also in Articles 245 and the three Lists of the Constitution resulting in the change of the very structure or framework of the Constitution”. I think this explains very clearly what was meant by ‘rewriting the Constitution’.

As to the whether the inclusion of laws in the Ninth Schedule results in Parliamentary autocracy at the cost of judicial review, I would love to argue that it does, but unfortunately the law doesn’t favour that interpretation. What the Court seems to be saying is that individual cases of putting laws beyond the ambit of judicial review is fine (subject to the basic structure doctrine), but reserving to Parliament the absolute right to determine which laws shall be beyond judicial review is impermissible. Now, this may lead one to argue very persuasively that the very inclusion of the 9th Schedule in the Constitution is violative of the basic structure. However, much as there is strength in this argument, the judicial history of the inclusion makes a reconsideration of that question improbable. Thus, one is left only with the question- if the 9th Schedule itself is not violative of the basic structure, is including a particular law in it impermissible? The answer to that has to be in the negative, unless of course, the law strikes at one of the basic features of the Constitution, in which case, even including it within the 9th Schedule does not place it beyond judicial scrutiny.

]]> By: Arghya http://www.criticaltwenties.in/lawthejudiciary/a-re-examination-of-the-basic-structure-doctrine#comment-480 Arghya Thu, 07 Oct 2010 05:05:15 +0000 http://www.criticaltwenties.in/?p=1128#comment-480 Hi Shantanu, wonderful post on a crucial area of the law. Thanks much. While I agree with the general tenor of the judgment seeking to limit rather than enlarge the scope of the basic structure doctrine, there are a few points I would like to make: 1. It seems to me that (a) and (b) which were the tests to identify violations of the basic structure remain intact. The question you raised "does the violation require a rewriting of the Constitution, or result in Parliamentary autocracy at the cost of judicial review?" doesn't logically replace (a) but can be seen more in the nature of (c), a third criterion to be satisfied. Second, as far as this test itself is concerned, I agree with the direction the Court tends towards (which is restrictive) but I think as a doctrine it is unhappily worded. Any amendment is technically rewriting of the Constitution and there should have been greater clarity on what rewriting entails. On merits, I also think 'whether something amounts to rewriting' or not is not a good test to judge basic structure violations and restrict the doctrine- instead, we must focus on elaborating what the provisions which constitute the basic structure are. Now admittedly, the second part of the test which talks about "result(ing) in Parliamentary autocracy at the cost of judicial review" does that. But again I fail to see how in this case, this test is not met. Constitutional Amendments to put offending statutes in the 9th Schedule are the classical examples of parliamentary autocracy at the cost of judicial review, aren't they? Hi Shantanu, wonderful post on a crucial area of the law. Thanks much. While I agree with the general tenor of the judgment seeking to limit rather than enlarge the scope of the basic structure doctrine, there are a few points I would like to make:
1. It seems to me that (a) and (b) which were the tests to identify violations of the basic structure remain intact. The question you raised “does the violation require a rewriting of the Constitution, or result in Parliamentary autocracy at the cost of judicial review?” doesn’t logically replace (a) but can be seen more in the nature of (c), a third criterion to be satisfied.
Second, as far as this test itself is concerned, I agree with the direction the Court tends towards (which is restrictive) but I think as a doctrine it is unhappily worded. Any amendment is technically rewriting of the Constitution and there should have been greater clarity on what rewriting entails. On merits, I also think ‘whether something amounts to rewriting’ or not is not a good test to judge basic structure violations and restrict the doctrine- instead, we must focus on elaborating what the provisions which constitute the basic structure are. Now admittedly, the second part of the test which talks about “result(ing) in Parliamentary autocracy at the cost of judicial review” does that. But again I fail to see how in this case, this test is not met. Constitutional Amendments to put offending statutes in the 9th Schedule are the classical examples of parliamentary autocracy at the cost of judicial review, aren’t they?

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