Basic Structure Doctrine Has Served The Nation Well, Says Fali Nariman

Fali S. Nariman, Senior Advocate, spoke at the 4th Ram Jethmalani Memorial Lecture as a tribute to the late Ram Jethmalani, a celebrated legal pioneer. The commemoration of Jethmalani's 100th birthday provided an informative viewpoint on the complex idea of the Basic Structure Doctrine within the Indian constitutional framework.

In his opening remarks, Nariman reflected on Jethmalani, underlining his reputation as a legendary lawyer and his certain influence on the legal community. He made a comparison between Jethmalani and a well-known US attorney who was renowned for selling audio recordings of his courtroom arguments, stating that "Jethmalani's arguments were equally captivating, even though he never resorted to such tactics."

Turning his attention to the main theme of the session, ‘Has the basic structure doctrine served the nation well?’, Nariman delved into the Basic Structure Doctrine, which is closely linked to Article 368 of the Indian Constitution, the sole provision governing substantive amendments to the Constitution. He pointed, “The doctrine has been adopted by several nations worldwide, including Bangladesh, Pakistan, Uganda, Israel, Malaysia, and Belize, to safeguard democratic institutions and serve the nation's interests.”

Nariman presented an overview of the application of the Basic Structure Doctrine in India over the past five decades. He noted, “Since its inception in 1973, India has seen 105 constitutional amendment acts, involving the insertion, removal, or amendment of various articles”. 

He continued to explain that only 22 reported cases in which constitutional amendments were contested on the basis of the Basic Structure Doctrine were cited by the Supreme Court of India, and that in 15 of those 22 cases, the Supreme Court upheld the constitutionality of the amendments in question. However, in seven cases, the Court used the Basic Structure Doctrine to invalidate particular clauses, mostly in accordance with the fundamentals of sound judicial administration.

Nariman elaborated on the concept of good judicial governance, emphasizing “The significance of the judiciary as one of the three organs of the state responsible for governance.” He cited legal scholar Ronald Dworkin's theory, known as the ‘Hercules technique of constitutional adjudication,’ which allows judges to make new laws in line with the Constitution's spirit.

Nariman made it explicit that this approach is incorporated into Article 142 of the Indian Constitution, which gives the Supreme Court the power to issue orders required for 'complete justice' in any case that comes before it. This clause emphasises how crucial it is for the Court to interpret the Constitution in the interests of the whole nation.

In order to highlight the Basic Structure Doctrine's ongoing significance in Indian constitutional law, Nariman provided historical examples of times when it was tested but eventually prevailed. 

Nariman pointed out that India's Parliament itself affirmed the Basic Structure Doctrine by amending Article 359. The amendment declared that fundamental rights, particularly the right to life and liberty i.e. Article 20 and 21, could not be suspended even during a state of emergency. This legislative acknowledgment cemented the notion that these rights were an integral part of the Constitution's basic structure.

Nariman concluded the session in hope that the Basic Structure Doctrine would continue to guide the nation's legal landscape, ensuring that the fundamental rights and principles enshrined in the Constitution are upheld for the benefit of all citizens.