affect its validity. If the constituent authority in its wisdom has chosen the
validity of a disputed election as the subject-matter of a constitutional
amendment, this Court cannot go behind that wisdom. All that this Court is
concerned with is the validity of the amendment. I need not go into the
question as to whether such a matter, in view of the normal concept of
constitutional law, can strictly be the subject of a constitutional amendment.
I shall for the purpose of this case assume that such a matter can validly be
the subject-matter of a constitutional amendement. The question to be
decided is that if the impugned amendment of the Constitution violates a
principle which is part of the basic structure of the Constitution can it enjoy
immunity from an attack on its validity because of the fact that for the
future, the basic structure of the Constitution remains unaffected. The
answer to the above question, in my opinion should be in the negative. What
has to be seen in such a matter is whether the amendment contravenes or
runs counter to an imperative rule or postulate which is an integral part of
the basic structure of the Constitution. If so, it would be an impermissible
amendment and it would make no difference whether it relates to one case or
a large number of cases. If an amendment striking at the basic structure of
the Constitution is not permissible, it would not acquire validity by being
related only to one case. To accede to the argument advanced in support of
the validity of the amendment would be tantamount to holding that even
though it is not permissible to change the basic structure of the Constitution,
whenever the authority concerned deems it proper to make such an
amendment, it can do so and circumvent the bar to the making of such an
amendment by confining it to one case. What is prohibited cannot become
permissible because of its being confined to one matter.
211. Lastly, question arised whether we should strike down clause (4) in
its entirety or in part. So far as this aspect is concerned, I am of the view that
the different parts of clause (4) are so integrally connected and linked with
each other that it is not possible to sever them and uphold the validity of part
of it after striking down the rest of it. It would indeed be unfair to the
appellant if we were to uphold the first part of clause (4) and strike down
other parts or even part (iii). As would be apparent from what follows
hereafter, the election of the appellant is being upheld by applying the
provisions of the RP Act as amended by Act 40 of 1975. Such a course would
not be permissible if we were to uphold the validity of the first part of clause
(4) and strike down the other parts. We would also in that event be creating a
vacuum which is the very vice for which we are striking down clause (4). I am
therefore, of the view that clause 4 should be struck down in its entirety.
212. In view of my finding that clause (4) strikes at the basic structure of
the Constitution it is not necessary to go into the question as to whether,
assuming that the constituent authority took it upon itself to decide the
dispute relating to the validity of the election of the appellant, it was
necessary for the constituent authority to hear the parties concerned before it
declared the election of the appellant to be valid and thus in effect repelled
the challenge of the respondent to the validity of the appellant's election.
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