Former Founding Director (Academics) of Chandigarh Judicial Academy & UGC Emeritus Fellow Prof Virender Kumar today delivered lecture on the topic of “Basic Structure Doctrine of The Constitution of India: Re-visited” at ICSSR Complex, Panjab University (PU), Chandigarh on June 1.

        Former Judge at Supreme Court of India and former President of National Consumer Dispute Redressal Commission Mr. Justice Ashok Bhan chaired the lecture. PU Vice Chancellor Prof Arun Kumar Grover was the guest of honour at the prestigious lecture.

In his presidential remarks, Justice Ashok Bhan emphasized that Indian Constitution is a controlled and dynamic document and the Judiciary headed by the Supreme Court is the custodian of the Constitution. He emphatically stated that the Legislature or the Parliament has the power to enact laws, but whether such laws are in accord with the Constitution or not is to be determined by the Courts and not the Legislatures.  The Judges of the Courts are as much a part of the society as the Legislators are, and, therefore, they are also sensitive to understand and appreciate the emerging needs of society. He elaborated why and how the 9^th Schedule was added to the Constitution by the very first amendment of the Constitution to meet the pressing needs for land reforms by protecting them from protected litigation.

In his lecture, Professor Virender Kumar traced the evolution and development of the basic structure doctrine since its formal inception till date.  He showed how this doctrine, which was formally  enunciated in 1973 by the 13-Judge Bench decision of the Supreme Court in KeasvanandaBharati case, but remained dormant and non-functional thereafter for more than three decades. The turning point in the history of constitutional development, he said, took place in the year 2007 with the unanimous 9-Judge Bench judgment of the Supreme Court in I.R. Coelhocase [AIR  2007 SC 861]. In his view, it was this decision that rationalized and crystalized the basic structure doctrine.  Through his critical analysis, Professor Kumar showed how the 9-Judge bench judgment ingeniously reconciled the violability of fundamental rights with the inviolability of the basic structure of the constitution, and that how courts could apply that doctrine in resolving conflict situations on the basis of twin-tests - the ‘rights test’ and the ‘essence of the rights test’ – developed by the 9-Judge bench.

Through the critical review of post-I.R. Coelho cases, Professor Kumar further explored how this doctrine expanded to include within its ambit not only the laws amending the Constitution under Article 368,  but also all other laws that were passer by the Legislature in the exercise of their normal or ordinary legislative power.

Professor Kumar also referred to the issue of constitutionality of National Judicial Appointments Commission, enacted in pursuance of the 99^th Amendment of the Constitution and notified by the central Government on April 13, 2015, which recently replaced the hitherto prevailing Collegium System of appointing judges of the Supreme Court and High Courts.  He examined the provisions of Article 124 (2) of the Constitution that deal with appointments of judges of the Supreme Court and High Courts on first principle.  In his own view, the tone and tenor of the language used by the founding fathers of the Constitution, clearly reveals that consultation by the President with the Chief Justice does not mean just an empty formality or a ritual, but a meaningful and effective consultation.  However,  if under any peculiar situations or circumstances, consultation by the President does not result in taking into account the view point or reservation expressed by the Chief Justice,  then it is possible to read the intent of ‘consultation’ as ‘concurrence’ as the 9-Judge bench did in 1993 in order to meet the exigencies of that situation. 

But in his own view, Professor Kumar emphasized that such an exceptional construction should not be allowed to erase or obliterate the foundational principle of maintaining a balance or equilibrium between the three principal organs of the State which is sought to be maintained through the singular strategy of checks and balances by treating ‘exception’ as a general or basic ‘rule’. Following this line of reasoning, he raised one critical question:   

How to maintain such an equilibrium as would ensure inclusions of inputs in the matters of appointing Judges of the SC and High Courts from the Executive and the Parliament on the one hand and the Supreme Court through the Chief Justice on the other, but      without damaging either of the basic features of the Constitution, namely, independence of judiciary and separation of powers?

Professor Kumar himself responded by stating that the answer to this crucial question lay in realizing the juxtaposition of the President under Article 124 of the constitution, which ordains that “in the case of appointment of a judge other than the Chief Justice, the Chief Justice shall always be consulted”  by the President.  This shows that the President is uniquely placed between the Parliament and the executive government on the one hand, and the SC on the other and that his task is to maintain the balance or equilibrium between the three organs of the State without affecting the autonomy of any one of them including the independence of judiciary, which is unarguably one of the basic features of the Constitution.

In the light of his exposition, Professor Kumar concluded on a futuristic note by observing that the Basic Structure Doctrine, though initially evolved and developed for determining the ambit of powers of the Parliament in the matter of formal amendment of the Constitution under Article 368 of the Constitution, and yet, in his opinion, it is likely to include within its ambit all  the informal amendments of the constitution by the Supreme Court  in the exercise of its power of judicial review under Article 141 of the Constitution simply on the premise that primacy of power lies not by the reason of ‘authority’ but by the authority of ‘reason’.

PU VC Prof Arun K Grover appreciated the overwhelming response of cross-section of persons attending the Special Lecture despite the summer vacations. He lauded the academic activities that are being initiated at the ICSSR in the form of Special lectures. Dean International Students, Prof Ramanjit Kaur Johal gave vote of thanks to the guests and participants.

Judges from Punjab & Haryana High Court and Local Courts, PU Fellows, serving and retired Professors from PU, senior administrative officers of the University, members of Local Bar and large number of research scholars, students also participated in the packed house of ICSSR Seminar Hall.