‘Basic structure doctrine saved our fundamental rights’: Justice Madan B Lokur
Had the Supreme Court not come up with the basic structure doctrine, the amendments to the Constitution could have wiped out the fundamental rights, former Supreme Court Judge Madan B Lokur has said.
Talking about various judgments delivered by the Supreme Court on ‘amendability’ of the Constitution during a panel discussion on eminent parliamentarian Shashi Tharoor’s book ‘Our Living Constitution: A Concise Introduction & Commentary’ here last evening, Justice Lokur said that’s an indication that the Constitution is a living document and how one interpreted it depended upon the direction in which one wanted to take it.
“Supposing, if Kesavananda Bharati (verdict in which SC propounded the doctrine of basic structure) had not been there… the amendments to the Constitution could have wiped out our fundamental rights…Because if you say there is nothing which is unamendable…fine take away the right to freedom of speech... Is that you are looking for? I don’t think so,” Justice Lokur said.
However, Justice Lokur’s views were contested by senior advocate Kapil Sibal who said so long as the institutional system of checks and balance was in place, fundamental rights were safe and secure.
“Under the amended Article 359, there can never be an abrogation of Article 20 (Protection in respect of conviction for offences) and Article 21 (Right to life and liberty). Therefore, in a sense, the Parliament has accepted the concept of right to life (Article 21) being a part of the basic structure (of the Constitution). So even in an Emergency, under Article 359 you cannot abrogate both Article 20 and Article 21. So, let’s put that to rest,” Sibal said.
Sibal said even if the Kesavananda Bharati judgment was not there none of the fundamental rights would have been taken. That’s because the Constitution was there and some judge would have revolted and set aside the ADM Jabalpur verdict delivered during Emergency in 1976 in which the top court had ruled that during Emergency fundamental rights were suspended. He, however, agreed that Kesavananda Bharati judgment was a milestone.
During the panel discussion moderated by TV journalist Rajdeep Sardesai, Justice Lokur, Sibal, Tharoor, TMC MP Mahua Moitra and columnist Shubhrastha described the Constitution as a living, organic and aspirational document and sought to highlight the gap between the constitutional values and the ground realities.
Tharoor welcomed the ceasefire between India and Pakistan, saying, "Peace is essential...I am very glad. India never wanted a long-term war. India wanted war to teach terrorists a lesson, and that lesson has been taught..."
