scope and width of that power when it deals with provisions not concerned
with fundamental rights."
It would appear from the above that no distinction was made by me so far
as the ambit and scope of the power of amendment is concerned between a
provision relating to fundamental rights and provisions dealing with matters
other than fundamental rights. The limitation inherent in the word
"amendment" according to which it is not permissible by amendment of the
Constitution to change the basic structure of the Constitution was to operate
equally on articles pertaining to fundamental rights as on other articles not
pertaining to those rights. This was further made clear by the following
observations on page 688:
"Subject to the retention of the basic structure or framework of the
Constitution. I have no doubt that the power of amendment is plenary and
would include within itself the power to add, alter or repeal the various
articles including those relating to fundamental rights."
Proposition (vii) of the summary of my conclusions on page 758 of the
judgment also bears it out and the same reads as under:
"(vii) The power of amendment under Article 368 does not include power
to abrogate the Constitution not does it include the power to alter the basic
structure or framework of the Constitution. Subject to the retention of the
basic structure or framework of the Constitution, the power of amendment is
plenary and includes within itself the power to amend the various articles of
the Constitution, including those relating to fundamental rights as well as
those which may be said to relate to essential features. No part of a
fundamental right can claim immunity from amendatory process by being
described as the essence or core of that right. The power of amendment would
also include within itself the power to add, alter or repeal the various
articles".
252. It has been stated by me on page 685 of the judgment (already
reproduced above) that the secular character of the State, according to which
the State shall not discriminate against any citizen on the ground of religion
only cannot likewise be done away with. The above observations show that
the secular character of the Constitution and the right guaranteed by Article
15 pertain to the basic structure of the Constitution. The above observations
clearly militate against the contention that according to my judgement
fundamental rights are not a part of the basic structure of the Constitution. I
also dealt with the matter at length to show that the right to property was
not a part of the basic structure of the Constitution. This would have been
wholly unnecessary if none of the fundamental rights was a part of the basic
structure of the Constitution.
253. Before parting with this case I must acknowledge the assistance we
received from the learned counsel for the parties as also from learned
Attorney General and Solicitor General in resolving the points of controversy.
In spite of the political overtones, the case was argued forcefully yet without
generating any heat and in an atmosphere of befitting calmness. It has been
said by Holmes, J. that great cases like hard cases make bad law. For great
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