Basic Structure of Constitution protects citizens from legislative overreach

Sep 26, 2020 Letters

DEAR EDITOR,

With the talk of “Constitutional Change” once more floating about in the public sphere to address our political challenges, the September 6 passing of Swami Keshavananda Bharati brought to mind his seminal contribution to constitutional law in India and the Commonwealth. This was the “Basic Structure” doctrine that emanated from a case he took all the way to the Indian Supreme Court, “Keshavananda Bharati v. Kerala” (1973).
Very simply, the historic 13-man Bench ruled that while Constitutions may have clauses authorizing the Legislature to enact changes through stipulated majorities, there are limits to this amendment power: “While there was no implied limit to constitutional amendment, the very nature of the word “amend” meant that Parliament could not abrogate or destroy the foundation or the basic structure of the Constitution.” The court held that the following elements constitute the unalterable basic structure: supremacy of the Constitution; republican and democratic form of government; secular character of the Constitution; separation of powers between the legislature, executive and judiciary; and the federal character of the Constitution. These were augmented in later judgments with the balance between fundamental rights and directive principles, and judicial review, etc.
The importance of this ruling for the citizenry was illustrated two years after Keshavananda, when PM Indira Gandhi attempted to seize dictatorial powers but her attempt to reverse the doctrine was quashed by the Supreme Court. The Court insisted that the Legislature was a creature of the Constitution and could not be permitted devour the Constitution itself. Here in Guyana, back in the 2015 Richardson case that concerned the right of citizens to be unencumbered in their choice of a presidential candidate, Chief Justice (Ag) Ian Chang, citing Keshavananda and a Belize case heard by Justice Conteh, had invoked the Basic Structure doctrine as immanent in Art 1 and 9 of our Constitution.
Recently, in Guyana we have witnessed the contemptuous disregard of the PNC for the Constitution on several occasions, most notably in the NCM and the conduct of the elections.
In any discussion on constitutional change the concept of a “Basic Structure”, encompassing our inviolable political values, must be placed on the table to protect citizens from voracious politicians.

Sincerely,
Ravi Dev

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