The intent of the Constituent Assembly and Dr Ambedkar’s words that the fundamentals of the Constitution should not be nullified resonated in the basic structure doctrine expounded by the Supreme Court in the Kesavananda Bharati judgment.
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TODAY marks the 50th anniversary of the invocation of the doctrine of basic structure of the Constitution by the Supreme Court in its Kesavananda Bharati judgment on April 24, 1973. This is a landmark event in India’s arduous journey anchored in the constitutional scheme of governance.
The historic order of the Supreme Court in that case, that the Parliament, by exercising the procedure to amend the Constitution under Article 368 of the Constitution, cannot alter its basic structure, has been described by Chief Justice of India Dr D.Y. Chandrachud as the north star always guiding the judiciary and the country to remain wedded to the Constitution and to uphold it.
Also read: Keshavananda Bharati of ‘basic structure’ fame dies
Attack on basic structure doctrine by Law Minister and Vice President
It is quite tragic that the Union Law and Justice Minister Kiren Rijiju and even the Vice President of India Jagdeep Dhankhar have taken public stands against the basic structure doctrine, and articulated statements in several public fora against it, in complete contrast to the oath they have taken owing allegiance to the Constitution. Such open and blatant defiance of the Constitution shocked the whole nation beyond measure, and constituted an attack on the Supreme Court and the very Constitution, the basic structure of which cannot be altered.
No constitutional functionaries such as the Law Minister and the Vice President of India, who is the ex officio Chairman of the Rajya Sabha, have ever so brazenly attacked the basic structure doctrine post the Kesavananda Bharati judgement.
Legislative intent of the Constituent Assembly
Against this background, it would be illuminating to understand the legislative intent of the Constituent Assembly, when it discussed Article 304 of the draft Constitution on September 17, 1949.
Discussions in the Constituent Assembly on the above Article throw light on the significant fact that some Members of the Assembly, including the Chairman of the Drafting Committee, Dr B.R. Ambedkar used phrases such as “fundamentals of the Constitution” and “principles of the Constitution”, and indicated that those fundamentals and principles should not be altered easily.
It is quite tragic that the Union Law and Justice Minister Kiren Rijiju and even the Vice President of India Jagdeep Dhankhar have taken public stands against the basic structure doctrine, and articulated statements in several public fora against it, in complete contrast to the oath they have taken owing allegiance to the Constitution.
Dr Ambedkar, while replying to the discussion on Article 304, made it clear that if the power of the states in their legislative, administrative and financial spheres were to be altered by the Union government by employing two-thirds majority of the Parliament without in any way allowing the states to have any voice, it would mean, in his words, “nullifying the fundamentals of the Constitution”.
Social activist and farmer leader Dr P.S. Deshmukh used the phrase “principles of the Constitution” in his amendment to the aforementioned article in the Constituent Assembly. He moved an amendment to the effect that if the President of India felt that an amendment would not “vitiate or abrogate the principles of the Constitution” but was necessary, then that could be passed by simple majority.
Dr Ambedkar’s emphasis on “principles of the Constitution” and Dr Deshmukh’s usage of the phrase “the principles of the Constitution” in the Constituent Assembly, and their views that these were not to be vitiated, clearly underlined the doctrine of basic structure of the Constitution, albeit in an embryonic form.
The intent of the Constituent Assembly and Dr Ambedkar’s words that the fundamentals of the Constitution should not be nullified resonated in the basic structure doctrine expounded by the Supreme Court in the Kesavananda Bharati judgment.
Ambedkar’s vision on principles of the Constitution
It is worthwhile to dive deep into the other elaborate statement of Ambedkar while replying to the discussions in the Constituent Assembly on Article 304 of the draft Constitution. That statement, in fact, signalled that the there was no absolute power vested in any organ of the State, and the purpose of the Constitution was to limit the authority of those organs. He cautioned that “the purpose of a Constitution is not merely to create the organs of the State but to limit their authority, because if no limitation was imposed upon the authority of the organs, there will be complete tyranny and complete oppression.”
Stating that “[t]he Constitution is a fundamental document” and it “defines the position and power of the three organs of the State–the executive, the judiciary and the legislature”, Dr Ambedkar made it clear that “[i]t also defines the powers of the executive and the powers of the legislature as against the citizens, as we have done in our Chapter dealing with Fundamental Rights”.
Without such limitations, Dr Ambedkar cautioned, “The legislature may be free to frame any law; the executive may be, free to take any decision; and the Supreme Court may be free to give any interpretation of the law. It would result in utter chaos.”
Stating that a model Constitution could be sustained only on two bases, he said that one base would constitute the foundation for a parliamentary system of government and another base could nourish a totalitarian or dictatorial form of government. Then he hastened to emphasise that, “If we agree that our Constitution must not be a dictatorship but must be a Constitution in which there is a parliamentary democracy where government is all the time on the anvil, so to say, on its trial, responsible to the people, responsible to the judiciary, then I have no hesitation in saying that the principles embodied in this Constitution are as good as if not better than, the principles embodied in any other parliamentary constitution.”
Dr Ambedkar cautioned that “the purpose of a Constitution is not merely to create the organs of the State but to limit their authority, because if no limitation was imposed upon the authority of the organs, there will be complete tyranny and complete oppression.”
The words of Dr Ambedkar that the government is at all times responsible to the people and to the judiciary, must be marked and paid heed to by everyone, especially those in government. On that count, he said that the principles embodied in our Constitution were equal in importance to any other parliamentary constitution.
Also read: On the Trajectory Shown by Ambedkar
In defence of the basic structure
The basic structure doctrine expounded by the Supreme Court embodied in it those principles which would enrich parliamentary democracy and negate any attempt to usher in a dictatorship.
The complete washing away of the recent Budget session of the Parliament because of the calculated measures by the ruling Bharatiya Janata Party Parliamentarians to paralyse the proceedings of both the Lok Sabha and Rajya Sabha, and the attack on the basic structure of the Constitution by the Law Minister and the Vice President of India, signal an ominous trend for our democracy.
Dr Ambedkar’s vision articulated in the Constituent Assembly in defence of the principles of the Constitution needs to be invoked to defend its basic structure. This is the meaning and significance of the fiftieth anniversary of the invocation of the basic structure doctrine by the Supreme Court to save the Constitution.
