Context

• Recently, the Vice President (VP) of India while addressing the 83rd All-India Presiding Officers Conference in Jaipur said that one-upmanship from judicial platforms is leading to the "disempowerment of the power of the legislature".
• His comments came in the backdrop of a raging debate on the issue of appointment to the higher judiciary with the government questioning the current collegium system and the Supreme Court defending it.
• The VP also objected to the SC's landmark decision in the Kesavananda Bharati case, claiming that it created a bad precedent (Basic Structure doctrine) and cast doubt on the authenticity of Indian democracy by blocking public will.

Background

• The VP’s remarks came briefly after a SC bench had expressed displeasure towards comments made by members of the executive against the SC Collegium system.
• While stressing the need for all institutions in a democracy to confine themselves to their respective domains, VP highlighted that the ultimate power lies with the legislature.
• As the legislature can’t script the court’s judgments, the court also cannot legislate. Thus, avoiding frequent incursions into the jurisdictional domain of the Parliament and promoting synergic functioning of constitutional institutions is the need of the hour.
• The Constitution never envisaged a third and superior chamber for Parliament to grant approval to the legislation passed by the two houses.
• Thus, striking down of the National Judicial Appointments Commission (NJAC) Act by SC was an unparalleled scenario in the democratic history of the world, which indicates a practice called judicial overreach.

Earlier Remarks Denouncing Judicial Acts

• The VP has earlier criticized the SC’s 2015 NJAC verdict that had been passed with "unprecedented support" in the Parliament and state assemblies and said that it severely compromised parliamentary sovereignty and disregarded the people’s will.
• The Union Law Minister had said that the Collegium system of appointing judges was “opaque”, “not accountable” and “alien” to the Constitution.
• Lok Sabha Speaker also noted that legislatures had always respected the powers and authority of the judiciary, and the judiciary was expected to follow the separation of powers mandated by the Constitution.
  • Therefore, building a respectable relationship between executive, legislature and judiciary to ensure mutual trust and harmony between them.

Constitutional Provisions Related to Judicial Intervention

• Article 13(2) provides that the state shall not make any law that takes away or abridges the rights, conferred by this part and any law made in contravention of this clause shall be void.
  • The Parliament is prevented by virtue of this Article from framing any law that takes away or affects the fundamental rights of citizens.
  • Hence, stemming from this constitutional provision, the judiciary has been delivering verdicts aligned with the rule of law.
• Articles 141 and 144 gives an insight about the role and stature of Indian courts and their rulings as follows:
  • Article 141 states that the law declared by the SC is binding on all courts within the territory of India.
  • Article 144 states that all authorities, civil and judicial, in the territory of India shall act in aid of the SC.
• Article 32 gives the right to individuals to move to the SC to seek justice when their rights have been 'unduly deprived', hence conferring right to judicial remedies upon Indian citizens.
  • Under this provision, the SC shall have power to issue directions or orders or writs, for the enforcement of any of the rights conferred under Part III (Fundamental Rights).
• From above provisions it is clear that the judiciary is bound to protect the Constitution and the SC being the ultimate interpreter of the Constitution must necessarily make a declaration on invalid laws.

The Basic Structure Doctrine

• It was laid down by the judiciary laid down in Kesavananda Bharati v. State of Kerala (1973) case.
• It was in response to executive inserting Article 13 (4) by 24th Constitution Amendment Act 1971. According to this provision, nothing in this Article shall apply to any amendment of the Constitution made under Article 368.
• The court ruled that while Parliament has vast powers to change the Constitution, it cannot touch certain “Basic Features” or foundational principles that give the Constitution its coherence or identity, implying that Parliament can amend, not destroy such features.
• The SC is yet to define as to what constitutes the ‘Basic Structure’ of the Constitution, but from various judgements, the following have emerged as some of the elements of the ‘Basic Structure’:
  • Supremacy of the Constitution
  • Sovereign, democratic and republican nature of the Indian polity
  • Separation of powers between the legislature, the executive and the judiciary
  • Judicial review and rule of law
  • Parliamentary system, free and fair elections
  • Principle of equality
  • Independence of Judiciary
  • Limited power of Parliament to amend the Constitution
• Ever since, the doctrine has held firm and stood the test of time because the court has kept the formulation of “Basic Features” wide and abstract.

Conclusion

• The judiciary's checks on the powers of the legislature, which are controlled by the majoritarian principle, should serve to maintain the fine balance that makes democracy operate better for the people.
• In democratic governance, the basis of any 'Basic Structure' is the prevalence of primacy of the mandate of the people.
• The VP's remarks may be interpreted as the breach of the principle of ‘Separation of Power’. Thus, the three facets of democracy, should adhere to their respective domains in accordance with the powers and limitations defined by the Constitution.