QUE.  “The doctrine of basic structure has served as a resilient constitutional anchor, yet the growing expansion of administrative tribunals and executive rule-making tests the traditional boundaries of judicial review.” Discuss.

ANS.

The Basic Structure Doctrine, articulated in the landmark Kesavananda Bharati case (1973), acts as a safety valve against constitutional overreach. It establishes that Parliament’s amending power under Article 368 cannot alter the core identity of the Constitution, which includes the rule of law, separation of powers, and judicial review.

1. Basic Structure as a Resilient Constitutional Anchor

• Guard against Executive Arbitrariness: Safeguards fundamental rights by ensuring constitutional limits are respected (Minerva Mills, 1980).

• Preserving Separation of Powers: Prevents the legislature or executive from encroaching upon judicial sovereignty (Indira Nehru Gandhi, 1975).

• Evolving Jurisprudence: Adaptably protects key tenets such as secularism (S.R. Bommai) and free & fair elections.

2. Friction Points: Expansion of Administrative Tribunals

The proliferation of tribunals under Articles 323A and 323B creates institutional strain:

• Encroachment on Judicial Power: Tribunals frequently bypass statutory High Court jurisdiction, altering the constitutional hierarchy.

• Issue of Judicial Independence: Executive influence over appointments, tenures, and infrastructure compromises tribunal impartiality (Madras Bar Association cases).

• Restoration of Equilibrium (L. Chandra Kumar, 1997): The Supreme Court affirmed that judicial review under Articles 226/227 is a part of the basic structure and cannot be excluded by creating tribunals.

3. Challenges Posed by Subordinate & Executive Rule-Making

Delegated legislation has expanded exponentially due to complex administrative needs:

• Delegation Beyond Permissible Limits: Executive orders frequently bypass legislative debate and scrutiny, risking “executive auto-piloting.”

• Ouster Clauses & Limited Review: Frequent attempts to insert exclusionary clauses seek to restrict judicial oversight over subordinate rules.

• Manifest Arbitrariness: The expansion of standard review to test rules on “manifest arbitrariness” (Shayara Bano) places judicial review under continuous friction with administrative discretion.

• Way Forward

• Tribunalization Reforms: Establish an independent National Tribunals Commission (NTC) to manage appointments and administration, freeing tribunals from executive control.

• Strengthening Legislative Scrutiny: Re-energize Parliamentary Committees on Subordinate Legislation to vet administrative rulemaking before implementation.

• Maintaining Judicial Balance: Practice judicial restraint on policy matters while maintaining strict vigilance over constitutional guarantees.

While functional specialization through tribunals and delegated legislation is essential for modern governance, it must not undermine constitutional governance. The Basic Structure Doctrine remains the primary defense ensuring that efficiency does not compromise accountability and the rule of law.