India must be grateful to Vice-President Jagdeep Dhankhar for sparking off this debate, when he questioned the judiciary, and contextualised the 1973 landmark Supreme Court verdict in the Kesavananda Bharati versus the State of Kerala case, and argued that since the phrase constructed for the first time by the judiciary in its ruling, “... basic structure of the Indian constitution...”cannot be amended, it was a forced reduction in the Parliament’s powers to legislate.
Since it was delivered nearly 50 years ago, the Supreme Court verdict has been held as a truism, a tenet of Indian politics, with several past leaders and parliamentarians, including past Prime Ministers, Lok Sabha Speakers and, predecessors of Mr Dhankhar, having praised it and accepted it as the larger legal boundary of the scope of ambition for Parliament.
The deeper meaning lies in the understanding that the Indian Constitution, created after much deliberations and study by our founding fathers in the Constituent Assembly, that it has envisaged and brought into legal and political effect a system of governance, in which, with clear separation of powers, and internal checks and balances, the three pillars of government operate — legislature, executive and judiciary.
The Indian Constitution is supreme herewith as the legal, and moral and political, codified wisdom which gave birth to the entire independent India’s political system, and is the fountainhead of all of the system, the powers, the procedures, the law, and the three pillars, and none of them can therefore, by definition, or chronology, be above it.
At another level, the supremacy of the Constitution lies in the clear unambiguous separation of power, and roles, of each of the principal pillars of the government. Neither the legislature, nor judiciary, or at the Central highest level, neither Parliament, nor the Supreme Court, can legitimately conduct an overreach to cut down the power, or reduce the scope, of each other.
The Constitution is the custodian of this holy truth.
The Kesavananda Bharati case is a judicial reflection on the meaning and limitation of the popular dictum — Parliament can make laws — by asking, can Parliament make any law? Can Parliament pass a law saying the Constitution no longer holds good, or that the Indian parliamentary system should be replaced by a presidential form of democracy, or that the judiciary is defunct?
The answer is an emphatic nada, a big no. Parliament, as envisaged, created and empowered by the Constitution, does not enable Parliament to change those aspects which are central to the design of the Constitution, which the Supreme Court, aptly, collectively, phrased as “the basic structure”.
The Vice-President raises important questions — including, did the Constitution itself use the phrase, or if the judiciary created it, can it be binding on Parliament, and if so, has the judiciary overtaken the power of Parliament to legislate, or amend the sacred parchment?
The answer is simple — with or without a guiding phrase — the judiciary can, should and must reflect on the legality of any legislation, or amendment, of Parliament — it is not a reduction of the powers of Parliament but the proper exercise of the powers, and function, of the judiciary.
