INTRODUCTION
During the recent release of the book, “Basic Structure Doctrine: Protector of Constitutional integrity”, Justice KV Viswanathan, Hon’ble Judge of the Supreme Court emphasized the import of certain fundamental rights which can connoted as natural rights. On this note, the Hon’ble Judge spoke about the contributions of Hon’ble Nani Palkhivala who dealt with the question in detail during the proceedings of the landmark Kesavananda Bharathi case.
BACKGROUND
The case of Kesavananda Bharathi entailed in depth examination of the meaning, nature and applicability of the basic structure doctrine. The proceedings of the case involved a complex question relating to the nature of interpretation of the basic structure doctrine. The question posed by the Hon’ble bench enquired Nani Palkhivala whether the nature of interpretation of the amending power of the constitution change if the article included the procedure of referendum. The question further enquired as to whether the presence of referendum affects the theory of basic structure and if it does, the question before the Hon’ble Court will take shape more in the lines of procedure and not that of the basic tenets of the constitution itself.
KEY POINTS
The case of Kesavananda Bharathi answered the question in a simple straightforward manner. The answer being that the presence of referendum does not affect the interpretation of the amending power of the parliament under article 368 as the fundamental rights enshrined under part -3 of the constitution are not mere rights that can be taken away but rather, they are natural rights which cannot be taken away under any circumstances. Hon’ble Supreme Court judge Justice KV Viswanathan reiterated the argument during the course of introducing the book written by Justice Rohinton Nariman. Further, he emphasized the need to continue practicing constitutional law by stating that the only way to protect the constitution is through practicing it.
RECENT DEVELOPMENTS
The verbatim of the speech given by the Hon’ble Justice reads,
Today, in the form Article 368 is, it cannot be substituted in any other form. In my view, even if there was a referendum, since certain fundamental rights are naturally and inherent rights, they cannot be taken away. They were put beyond the hands of majority and fundamental rights are limitation on even the legislative power. Today, in a referendum, it cannot be taken away. But today, it’s out of question now. The strength of basic structure can be best appreciated if you illustrate them with concrete examples, its a sound theory.
In other words, Justice KV Viswanathan emphasized that the fundamental rights being the core principles or rather natural and inherent rights of an Indian citizen cannot be taken away through a meagre amending power vested through the article 368 of the Indian constitution. This statement is in consonance with the view reiterated by the Hon’ble Supreme Court in its plethora of judgements.
CONCLUSION
The conclusion can be drawn through inferences from the statements by Justice KV Viswanathan is of two-fold
- Firstly, the parliament cannot take away the fundamental rights enshrined under part-3 of the Indian constitution through the article 368 by exercising the parliaments power to amend as they form part of the basic structure of the constitution.
- Secondly, the fundamental rights cannot be taken not because they form the basic tents of the constitution but rather these rights are natural and inherent to a person. Therefore, it is imperative to continue to preserve and protect these fundamental rights in the interest of the country.
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WRITTEN BY LALITHA SASANKA G
