What can the nation or the Bar do if the apex court has a fancy to `sip every flower and change every hair'? Anyway, the basic structure doctrine, a constitutional serendipity and Bench discovery, remained vague, vagarious and jurisprudentially jejune, being the uninhibited product of judicial ipse dixits. Prime Minister Indira Gandhi, who probably had — in her socialistic legislative populism or finer vision — well-meaning nationalisation schemes and public sector progressivism that would suffer judgocratic victimisation, was seared by possible authoritarian anti-socialism of some senior Lordships, now armed with an ill-defined, even dubious power to strike down every unorthodox legislative measure, using the arcane basic structure `V weapon', a curial invention no one except the Indian Supreme Court could reveal or use. If the rule of law be vulnerable to judicial ukase, statutory exercises could become the vanishing point of jurisprudence. This apprehension had worried even the great Chief Justice Gajendragadkar when Kesavananda was being argued. At that time, he was Chairman of the Law Commission and I was a favourite member.
It was in this background, plainly for clarification, sensitisation and elimination of arbitrariness, the then Attorney General, Niren De, an assertive advocate and a nationalist jurist, moved Chief Justice A.N. Ray to reconsider the Kesavananda vagary in tune with the values of the secular, socialist, democratic republic. The CJI did constitute such a Bench in a case the Attorney General wanted to argue. Law had to be certain and its scope understandably beyond doubt. It cannot be a judicial riddle, a hidden agenda of the `robed brethren' which may reflect their predilections, class bias and unwittingly grant a holiday to the values of the Preamble, Part IV (and Part IV A).
I must express a tragic obiter that since 1991, the New World Economic Order has re-colonised Bharat and other Third World countries; and compliant Indian Prime Ministers and Finance Ministers plus other willing victims of multinational corporations have promoted privatisation (Nobel Prize winner and former World Bank policy maker Stiglitz calls this operation `briberisation') and demolished the public sector that was built over the decades from Nehru to Indira Gandhi and other national leaders who took seriously to the socialistic-democratic adjective in the Constitution. All swadeshi and self-reliant institutions underwent a traumatic, toxic, disinvestment process, devaluation and import invasion. This coup of 1991 is unconstitutional and violative of the `basic structure' and people's fundamental rights are on peril. But the court, whatever its class interest, has aggravated educational costs plus price hikes by its latest rulings. The right to life of the masses is now an illusion. In short, the highest court has forgotten its basic structure doctrine which certainly includes the judicial imperative of upholding the socialistic, democratic character of our republic.
The Indian Judiciary's social philosophy is no exception, and power without challenges and accountability tends to make this instrument authoritarian. The `basic structure' innovation, innocent at first sight and vesting a non-negotiable monopoly of interpretative jurisdiction in the apex court, truncates parliamentary democracy. The subconscious element in the judicial process depends on the mores of the day governing their social life, says Justice Cardozo. Arbitrary power, even in the hands of the highest court, is a menace to human rights, more so if the area is naked jurisprudence. So the Attorney General's desideratum asking for judicially well-defined boundaries and clarity of conceptual content of what has come to be known as the basic structure of the Constitution was fair and reasonable.
But a court decides on a dispute, not on whatever it fancies deserves to be settled or declared, whether it arises in a particular litigation before it or not. Otherwise, no Executive can function, no Legislature can debate for fear that a writ will undo everything using basic structure jurisprudence, even if no case pends challenging the offending action allergic to the orthodoxy or class anathema of their `Lordships'. The Supreme Court has this limitation on jurisdiction. Therefore, when the Attorney General submitted to the Court to pronounce on what falls within the immutable constitutional space covered by the doctrine of basic structure, Nani Palkhivala raised a fundamental preliminary objection that the case which was being heard did not at all involve, by any stretch of imagination, the question of basic structure and the Court should not, in this case, take upon itself the burden of adjudicating it.
There was no hidden agenda, Mr. Nariman
V.R. Krishna Iyer [excerpts]
http://www.hindu.com/2005/06/28/stories/2005062802091000.htm
