Basic Structure

Basic Structure - shailendra Awale by WA


Basic Structure, of an institution or constitution, always considered sacrosanct, cannot be touched.  In a democratic polity the constitutional framework serves as protection of the stated rights,  a sort of insurance coverage. If you are paying the premium as a part of the government system or a party in power, you are protected. Not a long time ago,  while speaking in Dehradun, Chief Justice Chandrachud had underlined that in a democracy, majority will have its way, but minority must have its say. He further added social harmony in a democracy should not be achieved by flushing out dissents. Quite a toast of the day. But in real life politics, the first part is the core, laws are formed, changed and repealed by a majority. So they will always say. But natural for a democratic institutional set up from parliament,  executive or election commission or the judiciary will present vibrancy of a rainbow of majoritarian set up and identity.
Minority will be provided a say, an extension of the goodwill or a promise from a large hearted majority who has a way.
In Ram Mandir Judgement, the supreme court held that demolition of vivadit dhancha aka Babri Masjid till the day was an egregious violation of the rule of law. So the best ‘way’ forward is to handover the land in question to a party to a party who were part of the demolition squad and a part of the majority of the democratic polity. A charitable court using her special power asked the government to allocate the land to the minority to have their place of worship. No wonder it was a political agenda, project and a promise of the party in power, with a comfortable majority.

Again the Supreme Court in the case of Article 370, recognises the rights of the president, elected by a majority in democracy, to pass an order, abrogating an article 370, a solemn promise to minority who are a majority in State Jand K then. The president decides and passes an order without any consultation or recommendation from the state. What a power sir jee. Yes, CO 272 had overstepped, but had no bearing on CO 273. If the Executive or Solicitor General were aware of such power entrusted to them, they would not opt for circumspect process. Now not just a window, a door is open for them to present alternative vision abiding the law making process by issuing CO. Was it not an agenda of the party in power or their promise to their majoritarian followers?
So the court can decide the way between two fronts of the majority party. Minorities can approach the court to have their say, and  listen or adhere to the way forward.
Yes, the basic structure is sacrosanct, like  federal polity, fundamental rights, etc, but the majority will always have Super Express Way in a democracy.