Nothing is more laughable and contrary to the elementary principles of jurisprudence than the so-called basic structure theory, based on which the Supreme Court has rendered hundreds of judgements and even quashed the NJAC.

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Mathews J Nedumpara

It is known even to a law student that only a person aggrieved, namely, one whose rights are infringed, alone can go to a Court, and where the fundamental rights are infringed, one could go straight to the Supreme Court under Article 32. Without pleading infringement of a right, no one can go to a court. This is a universal principle. But the celebrated Kesavananda Bharati case laid down that one can go to a court without any of his right, much less fundamental rights, being infringed. Even if Kesavananda Bharati does not say so, it is so understood and done today. In Kesavananda Bharati the full court of the Supreme Court held that the Parliament has the power to abrogate every article of the constitution, including the fundamental rights, but not the “basic structure”. Since then, petitions are filed in the Supreme Court under Article 32, claiming that the “basic structure” is infringed, though no fundamental right is violated.

It is not too difficult to understand the folly of the basic structure theory but for which the so-called the freedoms and liberties of the citizens, nay, the very concept of democracy would be put to democracy. It requires no great loud thinking to comprehend a situation where the basic structure is abrogated but no fundamental right, and vice versa. The scenario where one could go to a court complaining violation of no right, much less fundamental right, but the violation of the basic structure, is ex facie irrational. Because if the violation of the basic structure does not result in the violation of any legal right, much less fundamental right, why would a citizen be at all concerned and why would he need a right to go to court. On the contrary, rights and fundamental rights in particular, if violated, pre- Kesavananda Bharati, a citizen has a right to approach the Court, which under Article 32 is guaranteed. In other words, if in the pre- Kesavananda era a citizen could approach the court complaining of violation of his right and the Supreme Court under Article 32, directly without approaching any other court where a fundamental right is violated, what additional right or remedy does Kesavananda confer on him. The answer is absolutely in the negative.

To emphasize, Kesavananda Bharati did not bring any new rights or remedies unknown to law. It did not create any new forum as well. It was a hype. As a lawyer who had taken the trouble to read the entire judgement of the Kesavananda Bharati running into 700 pages, two decades before, i can in all humility, assert that the judgement is nothing but an inconceivable piece of literature which conveys nothing in particular. I do admit that i have indeed recommended my juniors to read the judgement because a lot of issues are discussed and it is quiet informative from a pure academic point of view. It is a discussion with no beginning or end. What is true of the Kesavananda Bharati is equally true of most of the so-called landmark judgments of the Supreme Court, including the judgement on privacy. It just happened to be sensationalised. I vaguely recollect a judgement by Justice Chettur Shankaran Nair of the Kerala High Court which had dealt with the issue of privacy in just 4 pages quoting Semayne’s case, where CJ Coke said that ‘to every man his home is his castle’, the principle of privacy stated emphatically.

Coming back to the basic structure theory, i beg to submit that the Supreme Court allowed itself to be misled by the South Bombay lobby of lawyers who had been literally holding it for ransom. These “legends” were anti-democratic and because of the overwhelming influence they had over the bar and the bench, create an illusion that the Parliament is anti-democratic and that it’s primary job is to enact laws which take away and curtail the rights and liberties of the citizens and the judiciary is a bulwark against the anti democratic legislature and executive. The legislature and the executive can be criticised ruthlessly, but the right to criticize the judiciary is the exclusive province of those who can muster the support of half a dozen retired judges, scores of retired bureaucrats and ex servicemen.

Let me try to make sense of the basic structure. Whether the basic structure should be altered, for instance, instead of a parliamentary democracy we should adopt the presidential form of government, which will certainly alter the basic structure of the constitution, is for the Parliament to discuss.

The basic structure is not a justiciable issue. It is a political concept. To conclude, whether the basic structure is infringed or not, if fundamental rights are violated, judicial review will lie. On the contrary, if no fundamental right is violated, and assuming for arguments sake that the basic structure is violated, no judicial review will lie. Because why should there be a judicial review when there is no person aggrieved. Kesavananda Bharati has opened the gates for busybodies to institute petitions under under Article 32 where they claim no violation of their fundamental or legal right. Through PILs they destroyed the foundations of democracy by making the judiciary a supreme legislature and supreme executive with no accountability to the people. The tragedy of this country is that the powerful lobbies invoke Article 32, curiously even asserting that no fundamental right is infringed and seek quashing even of a constitutional amendment. The NJAC was thus quashed, the National Tax Tribunal was aborted. For those who still believe in the glory of Kesavananda Bharati, I must add that Kesavananda Bharati did not prevent Indira Gandhi from declaring emergency. It was the daridranarayas, the poor, who voted Indira Gandhi out of power and restored democracy. Have faith in the wisdom of the common people, have faith in the democracy.

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