Constitution, that the word ‘‘amendment’’ postulates that the old
Constitution must survive without loss of identity, that the old Constitution
must accordingly be retained though in the amended form, and therefore the
power of amendment does not include the power to destroy or abrogate the
basic structure or framework of the Constitution. The remaining six Judges
took the view that there were no limitations of any kind on the power of
amendment, though three of them seemed willing to foresee the limitation
that the entire Constitution could not be abrogated, leaving behind a State
without a Constitution. Some scholars have clapped and some scholars have
scoffed at the decision in the Fundamental Rights case. These criticisms, I
cannot deny, cause a flutter in the ivory tower. But by Article 141 of the
Constitution, the law declared by the Supreme Court is binding on all courts
within the territory of India. The law declared by the majority of 7:6 in the
Fundamental Rights case must therefore be accepted by us, dutifully and
without reserve as good law. The history of law courts abounds with
memorable decisions based on a thin majority.
652. These appeals have therefore to be decided in the light of the
principle emerging from the majority decision in the Fundamental Rights
case that Article 368 does not confer power on the Parliament to alter the
basic structure or framework of the Constitution. Arguments of the learned
counsel appearing on both sides have taken many forms and shapes but they
ultimately converge on the central theme of basic structure.
653. I would like first to deal with the constitutional validity of the 39th
Amendment. On that question, the arguments of Mr. Shanti Bhushan, who
appears for Shri Raj Narain, may be summed up thus : (i) The 39th
Amendment affects the basic structure or framework or the institutional
pattern adopted by the Constitution and is therefore beyond the amending
power conferred by Art. 368. It destroys the identity of the Constitution. (ii)
Separation of powers is a basic feature of the Constitution and therefore
every dispute involving the adjudication of legal rights must be left to the
decision of the judiciary Clause (4) of Article 329-A introduced by the 39th
Amendment takes away that jurisdiction and is therefore void. (iii) The
function of the legislature is to legislate and not decide private disputes. In
the instant case the Constituent Assembly has transgressed its constituent
function by adjudicating upon a private dispute. (iv) Democracy is an
essential feature of the Constitution. Free and fair elections are
indispensable for the successful working of any democratic government. By
providing that the election of the Prime Minister shall not be open to
challenge and shall continue to be valid despite the judgment of the
Allahabad High Court holding that the election is vitiated by corrupt
practices, the Constituent Assembly has destroyed the very core of
democracy. (v) Equality is an essential feature of a Republican Constitution.
The 39th Amendment puts the Prime Minister and the Speaker above the
law and beyond the reach of the equality principal The classification made by
the 39th Amendment bears no nexus with the sort of immunity granted to
two high personages from the operation of election laws. (vi) Rule of law and
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