restricts religious freedom. In this negative way not only contents of statutes
but of the other norms of legal order judicial and administrative decisions
likewise, may be determined by the Constitution. The Constitution can also
positively prescribe certain contents of future statutes. This may be
illustrated with reference to the provisions in Article 22 that no person who is
arrested shall be detained in custody without being informed, as soon as may
be of the grounds for such arrest nor shall he be denied the right to consult
and to be defended by a legal practitioner of his choice.
133. Ariticles 245 and 246 give plenary powers to legislatures to legislate.
The only question is whether any provision of the Constitution is violated.
The power of plenary body is not to be construed like the power of a delegate.
The largest kind of power will be attributed to legislature. The only
prohibition is with reference to the provisions of the Constitution. The
Constitution is the conclusive instrument by which powers are affirmatively
created or negatively restricted. The only relevant test for the validity of a
statute made under Article 245 is whether the legislation is within the scope
of the affirmative grant of power or is forbidden by some provision of the
Constitution.
134. The accept the basic features or basic structures theory with regard
to ordinary legislation would mean that there would be two kinds of
limitations for legislative measures. One will pertain to legislative power
under Articles 245 and 246 and the legislative entries and the provision in
Article 13. The other would be that no legislation can be made as to damage
or destroy basic features or basic structures. This will mean rewriting the
Constitution and robbing the legislature of acting within the framework of
the Constitution. No legislation can be free from challenge on this ground
even though the legislative measure is within the plenary powers of the
legislature.
135. The theory of implied limitations on the power of amendment of the
Constitution has been rejected by seven Judges in Kesavananda Bharati’s
case (AIR 1973 SC 1461) (supra). Our Constitution has not adopted the due
process clause of the American Constitution. Reasonableness of legislative
measures is unknown to our Constitution. The crucial point is that unlike the
American Constitution where rights are couched in wide general terms
leaving it to the Courts to evolve necessary limitations our Constitution has
denied due process as a test of invalidity of law. In A.K. Gopalan v. State of
Madras, 1950 SCR 88 = (AIR 1950 SC 27) due process was rejected by clearly
limiting the rights acquired and by eliminating the indefinite due process.
Our Constitution contemplates that considerations of justice or general
welfare might require restriction on enjoyment of fundamental rights.
136. The theory of basic structures or basic features is an exercise in
impoderables. Basic structures or basic features are indefinable. The
legislative entries are the fields of legislation. The pith and substance
doctrine has been applied in order to find out legislative competency, and
eliminate encroachment on legislative entries. If the theory of basic
structures or basic features will be applied to legislative measures it will
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