Basic structure doctrine is attacked on the premise that it is too vague and hazy, and hence cannot be a ground for determining whether a constitutional amendment is valid or not. Concepts like secularism, republican form of government, independence of judiciary etc. are concepts which are capable of definite meaning and it is absolutely rational to say that the Parliament ought not have the power to abrogate these basic features of the Constitution. There can hardly be two opinions on this aspect. But what has missed the attention of the Court, the government and the lawyers concerned is that the issue is not at all a justiciable one. It is for the people of this country to decide whether any amendment which would destroy the basic features of the constitution be permitted or not, and that decision, the Parliament being a body representing the people, is entirely left to it. It is for the Parliament (the people of this country) to decide whether an amendment which would destroy the basic structure of the constitution be permitted or not.
I am not saying that the Courts have no power at all. The Courts can step in when an amendment of the constitution destroys the basic structure, leads to the infringement of fundamental rights. If an amendment to the constitution does not at all infringe the fundamental rights, then there is no reason to worry about the same, for an amendment to the constitution while it destroys the basic structure, does not at all infringe fundamental rights, then such an amendment is entirely harmless.
One cannot imagine of a judgment in recorded history which is more illogical and against the first principles of jurisprudence than judgment of the Supreme Court in Kesavananda Bharati. The SC recognized what a great blunder the judgment in Kesavananda Bharati is in IR Coelho, 2007, when it held that a legislation which is violative of fundamental rights cannot be protected by allowing it to be included in the 9th schedule of the constitution. That was the recognition of the primacy of the fundamental rights as upheld in Golaknath case (6:5), as the law of the land. The Kesavananda Bharati case is dead and what was found in the NJAC case is its ghost.
Whether to amend the basic structure or not, for example, whether to bring in presidential form of government instead of Parliamentary form of govt, is for the people of this country (Parliament) to decide. If on the contrary, india is made a theocratic state, where practice of religions other than Hinduism is prohibited, then that will entail in violation of the fundamental right to the practice the religion of ones choice. Such a constitutional amendment is amenable to challenge on the ground of violation of fundamental rights. Here, what i say is nothing but the first principle of jurisprudence- ubi jus ibi remedium, where there is infringement of a right, law will provide a remedy. The trouble with Kesavananda Bharati is that it held that the Parliament is competent to abrogate fundamental rights but not basic structure. Still worse, it expressly said that it is overruling Golaknath which held that the Parliament has no power to abrogate fundamental rights. In IR Coelho, the SC admitted the manifest error in Kesavananda Bharati and reaffirmed that the Parliament has no power to abrogate fundamental rights.
Mathews J Nedumpara
October 18, 2017
- September 29, 2023