Parliamentary sovereignty  and the basic structure

(MainsGS2:  Separation of powers between various organs dispute redressal mechanisms and institutions.)

Context:

• Vice-President Jagdeep Dhankar recently said that Parliamentary sovereignty cannot be permitted to be diluted or compromised by the Executive or the Judiciary.

Referring NJAC Bill:

•  The Vice President said “In a democratic society, ‘the basic’ of any ‘basic structure’ has to be the supremacy of the mandate of people. Thus, the primacy and sovereignty of Parliament and legislature is inviolable,”.
• Citing the National Judicial Appointments Commission Bill, the Vice President said there was complete unanimity in the Lok Sabha while passing the Constitutional Amendment Bill. There was not a single dissenting voice. In Rajya Sabha, there was unanimity but there was one abstention.
• “But on October 16, 2015, the highest court of the land in a 4-1 majority verdict, held both the 99th Constitution Amendment Act, 2014, and the National Judicial Appointments Commission (NJAC) Act, 2014, unconstitutional on the premise of being in violation of the basic structure”.
• “This is not a challenge to the judiciary, but this has not happened anywhere else in the world. How can Parliament’s sovereignty be compromised,”.
• There was no parallel to such a development in democratic history where a duly legitimised constitutional prescription has been judicially undone.

Limitations:

• It is fairly well-known that parliamentary legislation is subject to two limitations under the Constitution of India. 
• One is by judicial review, or the power of constitutional courts to review legislation for possible violation of any fundamental right. 
• Another is that no amendment to the Constitution should have the effect of destroying any of its basic features. 
• While the first limitation is set out in Article 13, under which laws inconsistent with or in derogation of fundamental rights are void, the second limitation is based on the ‘basic structure’ doctrine evolved by the Supreme Court.

Parliamentary sovereignty:

• The idea that the basic structure doctrine undermines parliamentary sovereignty is not subscribed by many experts as they believe that parliament is sovereign in its domain, but it is still bound by the limitations imposed by the Constitution. 
• The main purpose of the doctrine is to ensure that some fundamental features of the Constitution are not legislated out of existence. 
• It has been invoked to strike down amendments only in a few cases, but many others have survived basic structure challenges. 
• Parliamentary majority is transient, but essential features of the Constitution such as the rule of law, parliamentary form of government, separation of powers, the idea of equality, and free and fair elections ought to be perennially protected from legislative excess.

Conclusion:

• Many constitutional experts believe that the doctrine of “ Basic structure” accords the judiciary a power to impose its philosophy over a democratically formed government, resulting in something akin to what Union Minister Arun Jaitley once termed as a “tyranny of the unelected”.
• But many also believe that basic structure possesses substantial moral values which strengthens democracy by limiting the power of a majoritarian government to undermine the Constitution’s central ideals.