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NJAC judgment birthed new doctrine of Derivative Basic Structure (DBSD): Raju Ramachandran

In a panel discussion on the recent NJAC judgment on 5 November, organized by the Vidhi Centre for Legal Policy, New Delhi at the India International Centre Annexe, eminent senior advocate, Raju Ramachandran, had outlined grave implications for the application of the Basic Structure Doctrine (BSD).

The BSD, which began to be applied by the Supreme Court, since the Kesavananda Bharati judgment in 1973, essentially suggests that there are certain basic features of the Constitution, which are beyond the amending powers of Parliament. It was held in that case that Parliament could not use the amending power to destroy or damage the basic structure of the Constitution.

The Kesavananda Bharati Bench comprised of 13 Judges, and had given 11 opinions. While seven judges ruled in favour of BSD, six Judges had dissented. Independence of Judiciary was not identified as a basic feature of the Constitution by any of the seven Judges, although Justice HR Khanna, one of those seven, had listed judicial review as a basic feature.

It was pointed out by Ramachandran, in order to strike down a Constitutional amendment earlier, the court was always looking for a violation of an overarching principle, which would suggest damage to basic structure.

With the NJAC judgment, Ramachandran said, there will now be a change in the future application of the BSD For the first time, the court has struck down an amendment on the ground that a derivative of the basic feature, namely, primacy of judiciary, has been violated. Using NJAC as the precedent, the courts will now be looking for bricks or the colour of the bricks, to determine whether the appearance is going to change, he suggested. Individual elements are going to be scrutinized, he cautioned.

Ramachandran is a known critic of the BSD, and has questioned the Kesavananda Bharati judgment for laying down this doctrine, seemingly against the will of Parliament. But on 5 November, he spoke on the full understanding that BSD was the law of the land, and explained to the audience, what he thought, are the NJAC judgment’s implications.

Saying that creativity is part of the BSD, he claimed that just as there are derived Fundamental Rights, there will now be derived basic structure features, and that is the fear.

Arghya Sengupta, Director of the VCLP, who moderated the discussion, compared the primacy of judiciary, which has been elevated as a basic feature in the NJAC judgment, to the right to sleep, which has been derived as a Fundamental Right under Article 21 by the Supreme Court in a recent judgment on the legality of the police crackdown on the supporters of Baba Ram Dev in Delhi, who had claimed right to sleep at a public place, after their peaceful protest against black money in Delhi.

Arvind P Datar, who defended the NJAC judgment, did not join issue with Ramachandran on the DBSD, but claimed that the NJAC had to go, because of its pathetic drafting.

While Ramachandran claimed independence of judiciary has been elevated as the paramount pillar and first among equals, even though there are other pillars like checks and balances, and democratic form of Governance, and one pillar cannot weaken another. Datar’s reply to this is that the NJAC judgment did not suggest there is a hierarchy of basic features and that other pillars can’t survive without the independence of judiciary.

For the first time, the court has clearly held that an ordinary Act, as compared to a Constitutional Amendment, can also be struck down on the ground of damage to the basic structure, Datar pointed out. Ramachandran answered that although the NJAC judgment did not suggest a hierarchy of basic features, it is his interpretation.

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