What Is the Basic Structure of Jagdeep Dhankhar?

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The Kesavananda Bharati case resulted in a landmark judgment in 1973, which reinforced our democracy and the basic structure of the constitution. Kesavanand Bharati, head pontiff of a mutt in Kasargod, had challenged a Kerala Land Reform Act and established the principle that the Supreme Court is the guardian of the basic structure of the constitution. The verdict involved the largest bench ― of 13 judges ― ever to sit in the apex court. The case is significant for its ruling that the constitution can be amended, but not its basic structure. This became an article of faith across the political spectrum in subsequent years, especially after the Emergency, when all constitutional guarantees were sought to be upended. Therefore, it is shocking that the judgment should be questioned by the vice president of India at a time when India is projecting itself as the “Mother of Democracies” under her G-20 presidentship!

Vice president Jagdeep Dhankhar has questioned the validity of the Kesavananda Bharati judgment, implying that parliament must have the sovereign right to amend the constitution regardless of whether it impinges on the basic structure, which also defines fundamental rights.

Senior Supreme Court advocates who have known and interacted closely with Dhankhar, himself a senior member of the SC Bar for decades, do not recall him opposing the Kesavananda Bharati verdict, ever. Indeed, it has been an article of faith for jurists, without exception.

So what is the motivation for vice president Dhankhar to question the 1973 verdict which was hailed across the board for its sagacity? Dhankhar’s former Bar colleagues are wondering where he is coming from. Opposition leaders have swiftly reacted with shock and disbelief.

Rajya Sabha MP and an old colleague of Dhankhar’s at the SC Bar Association, Vivek Tankha has tweeted to remind people that in parliament, Bharatiya Janata Party (BJP) leaders like Atal Bihari Vajpayee and Arun Jaitley have sworn their allegiance to the basic structure of the constitution. Tankha told me he would dig up statements in parliament by well-known leaders who considered the basic structure of the constitution to be sacrosanct, as established by the Kesavananda Bharati case.

Former finance minister and a senior member of the Bar P. Chidambaram has weighed in, saying, “The Hon’ble Chairman of the Rajya Sabha is wrong when he says that Parliament is supreme. It is the Constitution that is supreme.

“The basic structure doctrine was evolved in order to prevent a majoritarian-driven assault on the foundational principles of the Constitution."

The Hon'ble Chairman of the Rajya Sabha is wrong when he says that Parliament is supreme. It is the Constitution that is supreme.

The "basic structure" doctrine was evolved in order to prevent a majoritarian-driven assault on the foundational principles of the Constitution.

— P. Chidambaram (@PChidambaram_IN) January 12, 2023

The timing of Dhankhar’s statement is also odd, coming as it does in the middle of PM Modi’s project of showcasing India as the ‘mother of democracies’ as part of the nationwide celebration of India’s G-20 Presidentship. Surely it will embarrass the ruling party before the global community that a high constitutional functionary holds such a view.

Recently, Dhankar was also severely critical of the SC’s 2015 rejection of the National Judicial Appointments Commission Act, passed by parliament for higher judicial appointments. The vice president made the case that SC’s rejection of the law was tantamount to an erosion of  Parliament’s supremacy.

One does not know whether the latest pronouncement by the vice president is part of a larger plan to send a message to the Supreme Court. Interestingly, no one from the ruling party has reacted so far as Dhankhar’s revisionist view on the basic structure of the constitution. One will have to wait and see how the judiciary responds to it. The timing of this debate is also very interesting when politics is poised to become more combative as the 2024 Lok Sabha polls near.  There is never a dull moment under this regime.

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