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Basic Structure: Message Lost in Definition

Doctrine of Basic Structure has been subject matter of contention since Kesavananda Bharti case. Many argue that this doctrine is not in line with the democratic principle for a republican state like India. One of the arguments is generally advanced that it is abstract, vague, and ready to be misinterpreted in many ways, particularly this doctrine endows unlimited powers to judges, which cannot be checked by other organs of state. It is often argued that basic structure must be defined once for all time. Strangely, no society is able to define what is their core ethos. Ethical dimensions of each society are as evolutionary as life and death of each and everything. Ethics is as organically dynamic as the planetary systems or the expanding universe. There is no single definition of what is a good way of life. There cannot be, in fact, a single unifying definition. The quest to define each and everything is the highest misadventure one may imagine. It's like a mountain of sands; the moment a definition is vehemently put forth it is bound to miss the spirit of evolutionary development. It's like Deleuzean difference which encompasses in its domain every simulacra as the purest form, not to be exiled like a Platonist idea, but to be immanently rooted in the experience of daily reality. Purity of simulacra is not to be compared with the divine grace. There is no fall from a divine grace. Every event, in fact, is purely new, fresh, and alive. Basic is not meant to be static. There is nothing like full stop. Death itself is as alive as a living body. Definition is arbitrary creation of thought which is advanced to make something abstract. However, all our experiences are passing through a diverse set of trajectories on concrete level. 

In a recent column, authored by Aankhi Ghosh, titled "Let's Define the Core, published in The Indian Express (Sept. 22, 2020), author is not able to appreciate the nature of judicial function. She argues that judiciary failed during the national emergency to uphold the civil liberty, however judiciary includes High courts and Subordinate courts as well. It is a matter of fact that the High Courts across the country played a very crucial role in the protection of civil liberty for many deprived citizens of India. Second, the function of judiciary is not to be an abstract articulator of what basic structure really is, rather it evolves case to case basis on concrete level. Basic Structure doctrine is important to safeguard the fundamental principles of constitution. On the aspect of Constitutional provisions, Parliament is free to deliberate, amend, substitute, or modify the provisions. However, such changes must not violate the basic ethos of Indian Constitution. Because, basic structure is those fundamental principles which establish the fundamental law of the land.The concept of "basic" cannot be defined once for all. Just like Constitution cannot be static. It requires constant amendments. Likewise, the concept of basic is dynamic, evolutionary; it must accept the normative change of history and society, for judiciary is the guardian of Constitution. It is meant to protect the fundamental norms of the Constitution and to make it adaptable and concrete in due course of time. She has crafted her arguments in the column  under the umbrella of analytical tradition which is not able to comprehend the larger scope of judicial function.

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