postulate of our Constitution. The provisions are arbitrary and are calculated
to damage or destroy the Rule of Law.
(Paras 678, 679, 680, 682)
It is beyond the pale of reasonable controversy that if there be any
unamendable features of the Constitution on the score that they form a part
of the basic structure of Constitution, they are that : (i) India is a Sovereign
Democratic Republic; (ii) Equality of status and opportunity shall be secured
to all its citizens; (iii) The State shall have no religion of its own and all
persons shall be equally entitled to freedom of conscience and the right freely
to profess, practise and propagate religion and that (iv) the Nation shall be
governed by a Government of laws, not of man.
(Para 665)
It is impossible to subscribe to the view that the Preamble of the
Constitution holds the key to its basic structure or that the preamble is too
holy to suffer a human touch. Though our Preamble was voted upon and is a
part of the Constitution, it is really ‘‘a preliminary statement of the reasons’’
which made passing of the constitution necessary and desirable. The
Preamble of our Constitution cannot be regarded as a source of any
prohibitions or limitations.
(Para 666)
Since the Constitution, as originally enacted, did not consider that judicial
power must intervene in the interests of purity of elections, judicial review
cannot be considered to be a part of the basis structure in so far as legislative
elections are concerned. The theory of Basic Structure has to be considered in
each individual case, not in the abstract, but in the context of the concrete
problem. It is not possible, therefore, to accept the contention that Cls. (4)
and (5) of Art. 329-A are unconstitutional on the ground that by those
provisions, the election of the Prime Minister is placed beyond the purview of
Courts.
(Paras 668 and 671)
Equally, there is no substance in the contention that the relevant clauses
of the 39th Amendment are in total derogation of ‘Political Justice’ and are
accordingly unconstitutional. The concept of political justice of which the
Preamble speaks is too vague and nebulous to permit by its yardstick the
invalidation of a Constitutional amendment.
(Para 672)
The contention that ‘‘Democracy’’ is an essential feature of the
Constitution is unassilable. But the impugned provisions do not destroy the
democratic structure of our government. The rule is still the rule of the
majority despite the 39th Amendment and no law or amendment of the
fundamental instrument has provided for the abrogation of the electoral
process.
(Paras 673 and 676)