Constitution within Constitution

The Honourable Supreme Court of India attained the celebrity status of ‘supreme defender’ of The Constitution of India, probably, on the day it came up with the doctrine of ‘Basic Structure’. It indeed was a milestone for Indian Constitutionalism. But also, this doctrine certainly qualifies to be an epitome of ‘superlative irony’.

Great Roman lawyer- Cicero, wisely dictated, “summum ius, summa iniuria”; which in simple words translates as ‘supreme justice, is supreme injustice’. Perhaps, in effort to supremely defending the Constitution, Supreme Court of India erred in the folly of Supreme Injustice.

To perceive this even more clearly, we have to understand the interpretation of Cicero’s idea from his treatise- De officiis (On Duties or On Obligations). Beyond translation, the meaning of the above statement is ‘An acritical application of a law, without understanding and respect of laws’ purposes and without considering the overall circumstances, is often a means of supreme injustice’.

Considering the aforementioned translation and interpretation, it is also important to take into account the scholastic criticism of the doctrine of Basic Structure. An eminent scholar of Constitutional Law, Dr Sudhir Krishnaswamy contends that- ‘basic structure’ was an extraordinary and successful attempt of the Supreme Court to place a Constitution within the original Constitution, which is unconstitutional and unfaithful to the Original Intent. This argument cannot be discarded if seen in the light of Cicero’s idea.

More so, Dr Sudhir’s criticism and Cicero’s notion is instrumental in tracing the ‘superlative irony’ that one tries to establish in the approach of basic structure. It is as such, because, it took Fifty years of Nationalist movement for achieving the goal of independent Constitutionalism; Three years worth of deliberations, debates, framing and consolidation of The Constitution of India; but now, it only takes hardly a month worth of litigation in Supreme Court to get added a new entry in the bracket of Basic Structure.

 

Constitution within Constitution

 

Mr PALLAV MISHRA.

B.A., L.L.B. (Hon), Christ University, Bangalore.

Previously worked as Research Assistant at The High Court of Kerala.

Presently, Practicing Advocate.

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