`Conceptually unsound'

Interview with Raju Ramachandran, former Additional Solicitor-General.

RAJU RAMACHANDRAN, a senior advocate in the Supreme Court, and a former Additional Solicitor General of India, was counsel for one of the petitioners in the I.R. Coelho case decided by the Supreme Court's nine-Judge Bench on January 11. He was reluctant to comment on the merits of the judgment because of his sense of professional ethics. However, he shared with Frontline his views on the basic structure doctrine (BSD), of which he has been a major critic. The doctrine was the basis of the judgment of the I.R. Coelho bench. Excerpts from the interview:

Can you comment on the evolution, purpose and relevance of the BSD?

I have maintained that the doctrine is conceptually unsound because if Parliament in its constituent capacity does not have plenary power, the power to amend the Constitution gets reduced to the status of the removal-of-difficulties clause. However, despite its jurisprudential infirmities, the BSD has served a certain purpose in the course of our evolution as a democracy. This was starkly brought out during the Emergency, when the Constitution was amended to save and protect the election of the then Prime Minister, Indira Gandhi. It was the BSD that prevented such a monstrous distortion remaining in the Constitution.

However, more than three decades have passed since the Emergency and we have evolved and matured as a democracy. The days of brute majorities are behind us. Major constitutional changes in the era of coalitions can only take place through a broad consensus. We no longer need the BSD to protect us. I am apprehensive that the doctrine could now stand in the way of many constitutional changes that may be considered necessary or desirable in the light of the experience of nearly 60 years as an independent nation. For instance, a change-over from a parliamentary to a presidential form of government would be hit by the BSD.

If we consider a change-over to proportional representation from the first-past-the-post system of elections, will it be affected by the BSD?

In my view, it will not be hit by the BSD. But even such a reform could attract a challenge and whether it passes the test or not would still have to be decided by the Judges according to their perceptions.

Are all fundamental rights part of BSD? How has the judiciary resolved this issue right from the time of the Kesavananda Bharati case?

The judiciary has not taken the view that all fundamental rights are part of the basic structure. But even when it comes to something as basic as conventionally understood as the right to equality, I think the matter is not free from doubt. What is more basic - the formal equality of Article 14 or the broader egalitarianism of Articles 38 and 39? Egalitarianism may require 69 per cent reservations.

Can Articles 14, 19 and 21 be considered more basic of all the fundamental rights, and form a Golden Triangle?

If the mandate of Articles 38 and 39 result in a contravention of Article 14 as judicially interpreted, the question what is more basic still remains.

What was Justice H.R. Khanna's stand in the Kesavananda Bharati case?

Justice Khanna's view in Kesavananda Bharati is a totally different standpoint. His view was that the power to amend the Constitution did not include the power to abrogate it and replace it with an entirely new one. He certainly did not take the view that all fundamental rights are part of the basic structure. He clarified later that property rights were not part of the basic structure. He obviously meant that some fundamental rights were part of the basic structure. It is important to remember that Justice Khanna had said that no generation had a monopoly of wisdom. Even Justices J.M. Shelat and A.N.Grover, who could be called hardcore Basic Structure Judges on the Kesavananda Bharati Bench, said that no single generation could bind the course of generations to come.

What are the perils of BSD? Can you give some illustrations?

If India decides to join a regional economic union which might involve our submission to the jurisdiction of supranational institutions, it may be hit by sovereignty, which is a basic feature. If India were to submit to the jurisdiction of the International Criminal Court or of an International Human Rights Tribunal, the BSD could again be invoked. Even if the nature of the Indian federation is to change from the present federation with a strong unitary bias to a classical federation where the Centre retains only Defence, Currency and Foreign Affairs, the basic structure would be damaged.

The judiciary is inclined to expand the list of basic features without any justification. In Delhi Judicial Service Association vs State of Gujarat (1991), the Supreme Court observed that as the Court has a special role in the administration of justice, Articles 136, 141 and 142 form part of the basic structure of the Constitution. It is difficult to appreciate how Article 142, which gives the Court the power to pass any order in order to do complete justice, can be a part of the basic structure or how again the power of the Supreme Court under Article 136 to grant special leave can form part of it.

Limited amending power is part of the basic structure. That is the standpoint from which the court invokes the basic structure. This limited amending power is something which has come out of a thin judicial majority first in Golak Nath and then in Kesavananda Bharati - both are thin majorities. How does something which emerges as the result of a judicial majority become part of the basic structure?

Do you think the 45th Amendment Bill should be revived as an answer to the confusion caused by the Supreme Court's interpretation of the BSD?

The appropriate solution would be for Parliament itself to enumerate the basic features and to provide for a referendum if any of the features are to be changed. Such an attempt was made by the Janata Party government in 1978 regarding the 45th Amendment Bill, which fell through as the ruling party did not have the requisite majority in the Rajya Sabha.