Ram Jethmalani memorial lecture: Chief Justice attends discussion on basic structure, steers clear of discussing it

Invited to discuss the basic structure doctrine, the Chief Justice of India (CJI) Dr D.Y. Chandrachud expressed his preference to do the same through judgments, and not public pronouncements. Others on the panel included law minister Arjun Ram Meghwal, Attorney General for India R. Venkataramani and former CJI Dipak Mishra.

THE Chief Justice of India (CJI) Dr D.Y. Chandrachud chose not to air his opinion on the basic structure doctrine at an event Friday evening.

He was speaking at the Ram Jethmalani memorial lecture, which celebrated the noted late advocate’s birth centenary yesterday.

As much as I admired Mister Ram Jethmalani, one thing I would not like to share with him is his ability to court controversy.

So I thought if I have to do something about this doctrine, I should do it through my own judgments and not off the court pronouncements,” the CJI remarked.

The topic of the discussion was, ‘Has the basic structure doctrine served the nation well?”

In Kesavananda Bharati Sripadagalvaru And Others versus State of Kerala & Another (1973), the Supreme Court had propounded that certain fundamental features of the Constitution, such as democracy, secularism, federalism and the rule of law, cannot be amended by the Parliament.

Besides the CJI, the panel comprised the Union minister for law and justice Arjun Ram Meghwal, Attorney General for India R. Venkataramani, former CJI Dipak Mishra, and senior advocates S. Gurumurthy and Shyam Divan.

The Supreme Court you do not know about

Justice Chandrachud said people hear about the Supreme Court everyday in print and electronic media, and on social media “where they are trolling us everyday”.

Having expressed his disinclination to air his opinion on the topic at hand, Justice Chandrachud took the opportunity to discuss things about the Supreme Court “that you don’t know about”.

The Supreme Court is bursting at its seams,” the CJI said, disclosing that the Union government has been approached with the blueprint of a new building to replace one of its older buildings.

The goal is to have a modern Supreme Court building in the same complex with 27 courtrooms, he said.

In the planned complex, the CJI said, there will be separate spaces for women lawyers, advocates on records and for litigants “to rest comfortably while at court”.

Justice Chandrachud said when he was appointed as the CJI in November 2022, “pendency rates had increased because of the [Covid] pandemic”.

He said his first move as the CJI was to ‘institutionalise’ the court and move away from an ad hoc model of operation.

In my 10 months as the CJI, I have realised that institutionalisation, in addition to enhancing transparency, humanises the workspace. The staff is able to draw boundaries between work and home, and increase work efficiency,” he reasoned.

A list of top 50 judges

The CJI said one of the criticisms that he hears about the collegium is that it lacks factual data to evaluate potential judges of the high courts and the Supreme Court.

The CJI divulged that the court has set up a centre for research and planning with young scholars and interns.

A list containing the “top 50 judges of the country” who would be considered for appointment as judges of the Supreme Court has been created, he revealed, adding that the list contains data on judgments and their quality.

The idea is to make the process of appointment more transparent,” the CJI said, but clarified that it is not to make it transparent “in the sense of sharing our discussions in the public realm. You can’t obviously do that”.

The doctrine has served us well: Former CJI Mishra

In former CJI Dipak Mishra’s view, the basic structure doctrine “has served the nation as well as “saved the nation and stabilised constitutional democracy and constitutionalism”.

Justice Mishra said there is “no necessity” to think that the judiciary is trying to reign supreme over the executive.

Judiciary functions under the Constitution and follows constitutional values, norms and framework and (also) silences,” he asserted.

The interpretation of Article 368 (power of parliament to amend Constitution) as undertaken in Kesavananda Bharati is “clear as day”, Justice Mishra opined.

An amendment cannot destroy or abrogate the Constitution. Or, to put it differently, the identity and personality of the Constitution cannot be altered.

The Constitution being the supreme document, its basic features are unamendable,” Justice Mishra said.

According to him, the interpretation delivered in the judgment was derived through a plain understanding of the Constitution.

It is neither extra-constitutional nor alien to it,” he averred.

Sparingly used by the court: Nariman

Jurist Fali S. Nariman highlighted that there have been attempts by courts  around the world to ensure the survival of democratic institutions, and the basic structure doctrine is one such effort.

Nariman noted that the doctrine has been adopted by at least six other countries: Bangladesh, Belize, Israel, Malaysia, Pakistan and Uganda.

Nariman, however, noted that despite being in existence for half a century, the doctrine has “so far been used sparingly” by the Supreme Court of India.

Between 1973 and 2023, there were only 22 reported cases where constitutional amendments were challenged on the ground of violation of the Constitution’s basic structure, he claimed.

In seven reported cases, the challenged provisions were struck down by the Supreme Court by invoking the doctrine. In 15 cases, the challenge was rejected,” he claimed further.

Democracy needs defending: Shyam Divan

Senior advocate Shyam Divan appeared to be in agreement with the debate’s proposition about the basic structure doctrine “serving well”.

Divan quoted late noted advocate and jurist Nani Palkhivala on what the test for the constitutionality of an amendment should be.

According to Palkhivala, the question that needs to be asked while testing a constitutional amendment is whether it “defaces or defiles our great charter beyond recognition with respect to any of its essential traits?”

Divan said a criteria often used to judge a doctrine’s requirement is to see its utility.

On this, he opined that the basic structure doctrine has proved to be useful in preserving “crucial aspects such as the scope of judicial review and to ensure that our democracy remains intact”.

Divan ended his speech by calling for the preservation of spaces for citizens to voice their concerns.

We cannot possibly afford a situation where there is no space for a comedian, journalist, cartoonist or academic.

The defence of democracy requires each one of us to ensure that the spaces do not shrink any further,” Divan asserted.

The Leaflet