DEMOLISHING THE FRAME FROM OUTSIDE THE CONSTITUTION

18 Oct 2023 6 mins Download PDF

Why in the News?

The Delhi Police arrested two persons of news portal NewsClick by invoking the Unlawful Activities (Prevention) Act on the charges of

• Accessing funds from pro-China elements 
• Coverage of events such as the farmers’ protests in 2020-21, that undermined the internal security of India.

The line set by “basic structure doctrine” has been crossed:

1. The doctrine was established by the Supreme Court to restrict majoritarianism over fundamental rights.
2. Recent developments relating to religious minorities, freedom of expression and speech and political financing reflects that the line has been crossed by subverting it from outside the text of the constitution.
3. Though Court is an unelected institution in a system that has an elected legislature, its legitimacy in striking down laws lies in its act of protecting the democratic process.
   1. The representative body is best to decide on what rules and values should govern a society.
   2. However, the courts have obligation to protect the integrity of the process of democracy, as a faulty democratic process can raise questions over the legitimacy of the representative body itself.
4. Indian judiciary has more powers than just protecting the integrity of the democratic process. Those include:
   1. strike down laws and constitutional amendments.
   2. Can imply restriction on Parliament in amending the Constitution through the basic structure doctrine.
5. In spite of the active roles played by the Judiciary to retain the text of the constitution, it can be diminished from the outside.

Democracy undermined:

1. The constitutional part of “constitutional democracy” says that democracy is not just in the principle of majority decision-making but decisions made in democratic conditions.
2. Such democratic conditions shall include, “whose structure, composition, and practices treat all members of the community, as individuals, with equal respect and concern”.
3. Such “democratic conditions” can be attainable only by adopting basic values that contribute to a robust democracy, such as
   1. freedom of speech and expression
   2. freedom of association.
4. However, these democratic system and fundamental right being still intact in the constitution, can be dent from outside.
   1. For instance, when terrorism laws are invoked against journalists, the fundamental right to speech and expression is textually intact in the Constitution but takes a dent outside.
   2. Similarly, when hate speeches against minorities are left unchecked, secularism remains intact in words but not in experiences.
   3. When electoral funding is opaque, democracy is confined to paper.

The court has enough powers to arrest the decline of such constitutionally protected rights, if it realises the effect of this larger trend. Unchecked violations of democratic conditions outside the text of the Constitution and laws would render both the Constitution and the Court without their identities