According to him, this judgment is still very relevant and important in protecting the core values of the Constitution.
On Monday, Supreme Court judge Justice KV Viswanathan strongly supported the Basic Structure Doctrine, a key part of India’s Constitutional law.
While speaking at the launch of the book ‘The Basic Structure Doctrine’ by former Supreme Court judge Justice Rohinton Nariman, Justice Viswanathan said that those who criticise the doctrine have not been able to provide a convincing argument against it.
“Unless you come up with a sound theory to oppose it, which none of the critics have yet come forward with, the theory is here to stay,”
– Justice KV Viswanathan
He explained that he is deeply impressed by the logic and reasoning of the Kesavananda Bharati case, the landmark judgement that introduced the Basic Structure Doctrine.
According to him, this judgment is still very relevant and important in protecting the core values of the Constitution.
Sibal was speaking at the book launch of Justice Rohinton Nariman’s book titled ‘The Basic Structure Doctrine’.
He said clearly, “What Rohinton has said, the Basic Structure doctrine is here to stay. Nobody can change it … But the real challenge is that you don’t need to violate basic structure by changing the principles of basic structure. You can violate basic structure by bringing in ordinary law which is contrary to the basic structure of the Constitution.”
Sibal explained that even though the Basic Structure Doctrine, laid down in the historic Kesavananda Bharati case, is still in place, it can be weakened through normal laws passed by the legislature.
He further added, “And the principle laid down in Kesavananda Bharati is that basic structure is only a concept which is applicable to the Constituent power of Parliament. But if we have laws which are contrary to the basic structure, you can’t challenge them on grounds of basic structure. But you can violate basic structure on a daily basis, and that is what’s happening in this country.”
The Supreme Court of India, in a historic 7:6 majority verdict, laid down the Basic Structure Doctrine in the Kesavananda Bharati case. This important legal principle says that certain core elements of the Constitution—like democracy, secularism, federalism, and the rule of law—cannot be changed or removed by Parliament, even through a constitutional amendment.
The Court also ruled that judicial review, which allows the judiciary to review and strike down unconstitutional laws, is a key feature of the basic structure and cannot be taken away by Parliament.
The Kesavananda Bharati judgment is considered one of the most important decisions in Indian constitutional history. It firmly established that there are limits to Parliament’s power to amend the Constitution. Key features such as:
- Supremacy of the Constitution
- Rule of Law
- Independence of the Judiciary
are part of the Constitution’s basic structure and cannot be amended or destroyed.
This doctrine acts as a safeguard against excessive or arbitrary changes by Parliament and ensures that the spirit of the Constitution remains intact. While the Constitution can evolve with the times, its core values and foundational principles must remain protected.
This means that while a constitutional amendment can be tested against the Basic Structure Doctrine, ordinary laws cannot be challenged on that ground. As a result, lawmakers can bypass the doctrine by simply enacting ordinary laws that go against the spirit of the Constitution.
Justice Viswanathan also said that even if the matter was put to a vote through a referendum, the Basic Structure would still remain untouchable.
“If you refer to Rohinton’s earlier book ‘Discordant Notes’, he refers to a question by Justice Palekar to Palkhivala. What Rohinton called the most difficult question which Palkhivala encountered in the entire hearing. The question was, ‘Mr. Palkhivala, you are advocating this theory of Basic Structure. Would you do this if [Article] 368 in its original form, had always provided for a referendum, in which case, then you are really not against the amendment being prescribed or Basic Structure. You know the theory which is to be implemented, but you are on the procedure that is prescribed now, because it’s Parliament which amends with appropriate ratifications in given cases. But if it were a referendum, could it arrange the Basic Structure?’ And Rohinton says that Palkhivala had difficulty answering.”
Justice Viswanathan acknowledged that it was a tough question for the legendary lawyer Nani Palkhivala to answer. However, he clarified his own view on the matter.
“But today, with Article 368 in the form that is in, it cannot be substituted with any other form. In my view, even if it were to be a referendum, since certain fundamental rights are natural…inhering rights, they cannot be take away. They are put behind the hands of the majority. If fundamental rights are the limitation on even the legislative power, then today even in a referendum, it could not be taken away.”
This means that even if the people voted directly (through a referendum), they still could not take away fundamental rights, because these rights are inherent and natural, and not subject to the will of the majority.
Justice Viswanathan also paid tribute to Kesavananda Bharati, the petitioner in the famous case that gave birth to this doctrine. He said it was time to honour him properly.
“Every case leaves a history. So, when Kesavananda Bharati passed away, some press people asked me about it. I said, he may not have known about the significance of the case, but his contribution is so vast that just as England erected the statue of Donoghue [following the Donoghue v Stevenson case], it’s time we have a portrait or a statue for Kesavananda Bharati.”
The judge added that the Kesavananda Bharati judgement continues to inspire the entire legal community in India.
“It certainly inspires me as a judge. It inspires former judges [points to Justice Nariman].”
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