The Doctrine of Basic Structure IV / The Revival of Ray XCV

Posted on by Rudrajyoti Nath Ray

Chief Justice A.N. Ray in Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 held, since the legislation is not subject to any other constitutional limitation, applying Doctrine of Basic Structure to test validity of a statute will amount to ‘rewriting the Constitution’. Learned Judge further observed, application of an undefinable Theory of Basic Structure to test validity of a statute would denude Legislatures of power of legislation and deprive them of laying down legislative policies.

However, Justice J.S. Khehar in Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 SCC 1 built upon his reasoning in Madras Bar Association v. Union of India, (2014) 10 SCC 1 by observing, a challenge to ordinary legislation for violation of Basic Structure would only be a ‘technical flaw’ and ‘cannot be treated to suffer from a legal infirmity’. Justice Lokur differed with Justice Khehar. Justice Lokur followed Majority in State of Karnataka v. Union of India, (1977) 4 SCC 608.

The constitutional validity of a statute cannot be challenged for violation of Basic Structure of the Constitution. The reason is, concepts such as ‘democracy’, ‘federalism’, and ‘secularism’ are undefined concepts. Recently, this Court accepted, a challenge to constitutional validity of a statute for violation of Basic Structure is a ‘technical aspect‘ because infraction has to be traced to express provisions of the Constitution. Hence, in a challenge to validity of a statute for violation of ‘secularism’, it must be shown, the statute violates provisions of the Constitution pertaining to ‘secularism’.

– Hon’ble Chief Justice of India, Hon’ble Justice Dr. D.Y. Chandrachud, Anjum Kadari v. Union of India, [Special Leave Petition (Civil) No. 8541 of 2024].

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Writ Petitions seek to challenge insertion of the words ‘socialist’ and ‘secular’ by The Constitution (Forty-Second Amendment) Act in 1976. Writ Petitions were filed in 2020, 44 years after the words ‘socialist’ and ‘secular’ became integral. It is particularly questionable. The circumstances do not warrant this Court’s exercise of discretion to undertake an exhaustive examination.

– Dr. Balram Singh v. Union of India, [Writ Petition (Civil) No. 645 of 2020] decided on 25.11.2024.

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'The Last Word' seeks to include not only wise and witty sayings but also curiosities. These words are not of obligation but of delight. I am not alone in my refusal to believe, law is tedious. For all who escaped these percipient eyes, mea culpa maxima. History, after all, has many cunning passages, contrived corridors and issues.