which rendered it invalid. Thirdly, the cases cited for the appellant are cases
relating to legislative validation of invalid elections or removal of
disqualification with retrospective effect. Being cases of legislative validation,
or removal of disqualifications by legislature they are not liable to be tested
on the basis of the theory of basic structure which, I think, is applicable only
to constitutional amendments. Fourthly, there was no controversy in those
cases with regard to adjudicative facts: if there was controversy with regard
to these facts it is very doubtful whether there could be legislative validation
of an election by changing the law alone without ascertaining the
adjudicative facts by judicial process.
330. Then I come to the argument of counsel that equality is a basic
structure of the Constitution and that that has been damaged or destroyed by
Clause (4).
331. The Solicitor General submitted that the majority in Bharati's case
(AIR 1973 SC 1461) did not hold that Article 14 pertains to the basic
structure that apart from Article 14, there is no principle of equality which is
a basic structure of the Constitution and that it is not a chameleon like
concept which changes its colour with the nature of the subject-matter to
which it is applied.
332. The majority in Bharati's case did not hold that Article 14 pertains to
the basic structure of the Constitution. The majority upheld the validity of
the first part of Article 31-C; this would show that a constitutional
amendment which takes away or abridges the right to challenge the validity
of an ordinary law for violating the fundamental right under that Article
would not destroy or damage the basic structure. The only logical basis for
supporting the validity of Arts. 31-A, 31-B and the first part of 31-C is that
Article 14 is not a basic structure.
333. Counsel for the respondent, however, submitted that even if Art. 14
does not pertain to basic structure equality is an essential feature of
democracy and rule of law and that Clause (4) by dispensing with the
application of the law relating to election petition and matters connected
therewith to the appellant and another has made an unreasonable distinction
between persons similarly situated and has thereby damaged or destroyed
that essential feature and therefore, the clause is bad. He said that in so far
as laws are general instructions to act or refrain from acting in certain ways
in specified circumstances enjoined upon persons of a specified kind, they
enjoin uniform behaviour in identical cases; that to fall under a law is protanto to be assimilated to a single pattern; and that a plea for rule of law in
this sense is in essence a plea for life in accordance with laws as opposed to
other standards namely, the adhoc dispensation from its operation. He
argued that if some persons for no stated reason and in accordance with no
rule, obtain exemption from the operation of law, while persons who are
sufficiently similar in relevant characteristics are governed by it, that is
manifestly unfair, for to allow some persons to do that which is forbidden to
all others is irrational.
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