Basic structure doctrine –The never ending debate India philosophic justice tradition has evolved a long way from our Independence. From a committed Judiciary to activist Judiciary to a responsible one Indian supreme court has come a long way. As an Institution Indian supreme court has truly set a great example in legal prudence.
The battle begins. The ideological leanings started right within one year from independence. The very first debate was about the land ceiling acts and reservation policy. Indian courts at that time found right to property to be an absolute right often coming at odds with land pooling policy of Government. Nehru was prudent enough to understand the difficulties posed by the stand taken by Indian courts. It led to Government battling long cases in courtrooms with often finding itself in the losing side. Nehru came up with Ninth schedule to Indian constitution which dealt that laws passed under ninth schedule were immune to judicial scrutiny. Land acts were given new life.
Though for right reason this set a dangerous precedent. Indian courts often found it hard to deal with some genuine cases were |Government is at fault. But Indian Judiciary was at time too Naïve to open a conflict with Nehru Government.
Emergency for whom ?The next conflict came during Indira Gandhi Period. Indira Gandhi went on rapid nationalization of Indian resources. With almost brute majority in Parliament she was the darling of Indian executive. She played with Indian constitution at will. Indian Judicary was a bit emboldened with passing of Nehru. Supreme Court held that Fundamental rights are inviolable in Golaknath case. This infuriated Indira Gandhi who saw in an obstacle to growth by communistic policies. She overturned the Judgment with an amendment of her brute majority in Parliament. The battle lines were clearly drawn. Indian Supreme Court swiftly overturned the Amendment in a series of Judgments. Indira Gandhi remained a mute spectator for some time.
The next test came during emergency. While Fundamental rights were suspended during emergency Indian Supreme Court held that Article 21 that Right to life and liberty cannot be suspended during emergency. Court also came up with Basic structure doctrine thereby giving courts to nullify all amendments that affect the basic structure or Ideals of Constitution.
The battle was at its height. Immediately Indira Gandhi for the first time in history superseded two Supreme Court Judges in appointing the Chief Justice. The Justices resigned in protest. But court couldn't stand in her way.
SC fights back.Court remained mute spectator this time. Supreme slowly built its power and influence through a series of Judgments. It virtually entered policy making by holding PILs SALs etc. Finally in 1993 SC thought it was time to restore its Supremacy. SC in first Judges case brought in collegiums system to make Higher Judiciary transfers and appointments totally under its control. It was fight back time. India had no more leaders like Nehru and Indira to come in its way. There were hung parliaments and no leader could rise to the stature.
The reality. SC started giving directions and started a parallel delivery system of governance. SC became activist with environmental cases. The next conflict came in 2nd Judges and 3rd Judges Cases each time making the collegiums system strong. Government was totally excluded. Finally SC held even 9th Schedule laws are under its scrutiny if it violated Basic structure. Indian state was held accountable.
Whatever may be the issue Governance must be with political executives for right reason. Time has come for a co-operation between the two highest Institutions.