CAN VIOLATION OF BASIC STRUCTURE DOCTRINE BE A GROUND TO

CHALLENGE AN ORDINARY LAW PASSED BY THE LEGISLATURE/

PARLIAMENT WHICH ENJOYS PRESUMPTION OF CONSTITUTIONALITY

- KULDIP NAYAR V. UNION OF INDIA 2006 (7) SCC 1: A CRITIQUE

By Lt Col Sarvadaman Singh Oberoi (Retd), Gurgaon, 06 January, 2015

REFERENCES

(1) Basic Structure Constitutionalism, Eastern Book Company, Lucknow, 2011, ISBN: 978-93-5028-188-0, pp. 166-167

(Arvind P. Datar, Senior Advocate, Madras High Court), pp. 236 (Dr. Sanjay Jain, Associate Professor, ILS Law

College, Pune)

(2) Constitutional Conundrums, Challenges to India’s Democratic Process, LexisNexis, Gurgaon, 2014, ISBN:978-93-

5143-150-3, pp. 278-281 (V Venkatesan, Senior Editor, Frontline)

(3) The Barium Chemicals Ltd. and Anr vs The Company Law Board and Others AIR 1967 SC 295 (5 judges)

(4) Kesavananda Bharati Sripadagalvaru and Ors v. State of Kerala and Anr 1973 (4) SCC 225 (13 judges)

(5) Smt Indira Nehru Gandhi v. Shri Raj Narain 1975 Supp SCC 1 (5 judges) (Challenge to amendments 1974 & 1975 in

the Representation of the People Act, 1951)

(6) State of Rajasthan v. Union of India 1977 (3) SCC 592 (7 judges)

(7) State of Karnataka v. Union of India 1977 (4) SCC 608 (7 judges) (Challenge to the Commissions of Inquiry Act,

1952)

(8) S.R. Bommai v. Union of India 1994 (3) SCC 1 (9 judges)

(9) Ismail Faruqui v. Union of India 1994 (6) SCC 360 (5 judges) (Challenge to the Acquisition of Certain Area at

Ayodhya Act, 1993)

(10) B.R. Kapur v. State of T.N. 2001 (7) SCC 231 (5 judges) (Interpretation of sub-section (4) of Section 8 of the

Representation of the People Act, 1951)

(11) K.Prabhakaran v. P.Jayarajan 2005 (1) SCC 754 (5 judges) (Interpretation of sub-section (4) of Section 8 of the

Representation of the People Act, 1951)

(12) Kuldip Nayar v Union of India 2006 (7) SCC 1 (5 judges)

(13) Lily Thomas v. Union of India & Ors 2013 (7) SCC 653 (2 judges) (Challenge to sub-section (4) of Section 8 of the

Representation of the People Act, 1951)

(14) SLP (C) No.21808/2013 Umesh Aggarwal v. Sukhbir against the judgment and order of the High Court of Punjab &

Haryana at Chandigarh dated 13.05.13 in CM No.17-E/2012 in EP No.9/2009 dismissed by the Hon'ble Supreme Court

of India on 22.07.13

INTRODUCTION

1. This article is an initial attempt at fleshing out a critique of the Constitution Bench judgment in

Kuldip Nayar v Union of India 2006 (7) SCC 1, wherein the 5 judges unanimously, per incuriam,

overruled, without holding, as they properly could not have, that the law laid down in State of

Karnataka v. Union of India 1977 (4) SCC 608 was bad and should be struck down, and held at SCC

pp. 67 at para 106. “The doctrine of ‘basic feature’ in the context of our Constitution, thus, does not

apply to ordinary legislation which has only a dual criteria to meet, namely: (i) it should relate to a

matter within its competence; (ii) it should not be void under Article 13 as being unreasonable

restriction on a fundamental right or as being repugnant to an express constitutional prohibition.”

2. In a significant finding of the majority in re the Article 131 challenge to the Commissions of

Inquiry Act, 1952 in State of Karnataka v. Union of India 1977 (4) SCC 608 (7 judges) at pp. 679 para

125 it was held by Beg CJ:

"But, if, as result of the doctrine certain imperative are inherent in or logically and necessarily

flow from the constitutions ‘basic structure’, just as though they are its express mandates, they

can be and have to be used to test the validity of ordinary laws just as the other parts of the

constitution so used."

3. SLP (C) No.21808/2013 titled Umesh Aggarwal v. Sukhbir was filed in the Hon'ble Supreme

Court of India by election petitioner against the judgment and order of the High Court of Punjab &

Haryana at Chandigarh dated 13.05.13 in CM No.17-E/2012 in EP No.9/2009 titled Umesh Aggarwal

v. Sukhbir, denying permission to amend the election petition with better particulars obtained by the

petitioner, from information received by the court subsequent to the filing of the case, and which he

could not have known on his own at earlier stage, which information revealed large scale gross

improprieties by election officials. SLP (C) No.21808/2013 was settled by Mr. Ravi Shankar Prasad

after a discussion in which author of this article was present at the request of petitioner.

4. Earlier a paper on maintainability of challenge to actions/ orders (executive, administrative, quasi-

judicial, legislative and/ or judicial) which do not constitute a formal amendment to the Constitution

was submitted by author to Senior Counsel, Mr. Satya Pal Jain, petitioner's advocate before the High

Court who opined that any such challenge on the grounds cited in the paper may not be maintainable

under Article 141 law.

5. SLP (C) No.21808/2013 was dismissed by a Division Bench of Hon'ble Mr. Justice Sudhansu

Jyoti Mukhopadhaya and Hon'ble Mr. Justice Ranjan Gogoi on 22.07.13, in the absence of any Article

32 Writ Petition, which the petitioner did not prefer simultaneously, as may have been permissible to

him. The author’s perceived setback to democracy as a part of basic structure doctrine set the author on

a hunt for the source of the legal conundrum which ostensibly bars the challenge to ordinary legislation

including election law, qua the Basic Structure Doctrine.

EXTRACTS: KULDIP NAYAR V. UNION OF INDIA 2006 (7) SCC 1

6. Sabharwal CJ for the Constitution Bench:

"103. A Constitution Bench (7 Judges) in State of Karnataka v. Union of India & Anr. 1977 (4) SCC

608 held, per majority, as under: (SCC p. 677, para 120)

“(I)n every case where reliance is placed upon it, in the course of an attack upon legislation, whether

ordinary or constituent (in the sense that it is an amendment of the Constitution), what is put forward

as part of "a basic structure" must be justified by references to the express provisions of the

Constitution."

104. In para 197 it was observed as under: (SCC p. 705)

"(I)f a law is within the legislative competence of the Legislature, it cannot be invalidated on the

supposed ground that it has added something to, or has supplemented, a constitutional provision so

long as the addition or supplementation is not inconsistent with any provision of the Constitution"

105. The following observations in Paragraph 238 of the same judgment are also germane to the issue:

(SCC p. 723)

"Mr. Sinha also contended that an ordinary law cannot go against the basic scheme or the fundamental

backbone of the Centre-State relationship as enshrined in the Constitution. He put his argument in this

respect in a very ingenious way because he felt difficulty in placing it in a direct manner by saying that

an ordinary law cannot violate the basic structure of the Constitution. In Smt Indira Nehru Gandhi v.

Shri Raj Narain 1975 Supp SCC 1 such an argument was expressedly rejected by this Court."

106. The doctrine of ‘basic feature’ in the context of our Constitution, thus, does not apply to ordinary

legislation which has only a dual criteria to meet, namely:

(i) it should relate to a matter within its competence;

(ii) it should not be void under Article 13 as being unreasonable restriction on a fundamental right or

as being repugnant to an express constitutional prohibition."

SCOPE

7. This initial paper is an attempt to lay out the framework for a challenge to ordinary legislation

including election law, qua the Basic Structure Doctrine. In order to crystallize this issue it is proposed

to restrict the scope in this paper to only the aspect whether or not challenge to an ordinary legislation,

not being a formal amendment to the Constitution of India, and further, not included in the Ninth

Schedule is maintainable through the sole route of the currently evolving Basic Structure Doctrine.

That is to say, this paper is not focusing on the issues of maintainability of challenge to actions/ orders

(executive, administrative, quasi-judicial, and/ or judicial) so as to leave those issues wide open for

another more qualified author, and excludes Ninth Schedule legislation though the following discussion

may refer to one or more of such issues also as collateral matters.

DISCUSSION

8. In Smt Indira Nehru Gandhi v. Shri Raj Narain 1975 Supp SCC 1, Khanna J. made his famous

clarification, at SCC pp. 116 at para 252 that in Kesavananda 1973 (4) SCC 225 “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.” Three out of the five judges of the Constitution Bench in Smt

Indira Nehru Gandhi v. Shri Raj Narain 1975 Supp SCC 1, Ray CJ at SCC pp.61 para 134, Mathew J.

at SCC pp. 139 para 346 and Chandrachud J. at SCC pp. 262 para 691, held that ordinary legislation is

not subject to the test of meeting the basic features or basic structures theory. However Beg J. at SCC

paras 391-393 & 636 refuted this finding and Khanna J. at pp. 108 at para 239 declined to decide this

question of law as being not necessary for a decision of the case. In fact Beg J. held at SCC para 392

“This Court, when properly called upon by the humblest citizen in a proceeding before it, to test the

constitutional validity of either an ordinary statute or of a constitutional amendment, has to do so by

applying the criteria of basic constitutional purpose and constitutionally prescribed procedure.” This

aspect finds a mention by Beg CJ in State of Karnataka v. Union of India 1977 (4) SCC 608 at pp. 677-

679. On 08.11.77 even Chandrachud J., in an about turn agreed with Beg CJ in 1977 (4) SCC 608 at pp.

704-705 at paras 195-198 rejecting the argument of the Additional Solicitor General that ordinary laws

have to answer only two tests and none other (SCC pp. 705 at para 195) and agreeing with the

conclusions of Beg CJ. (SCC pp. 705 at para 198). Thus Chandrachud J. had come full circle from Smt

Indira Nehru Gandhi v. Shri Raj Narain 1975 Supp SCC 1 at pp. 261-262 para 691 where he had held

ordinary legislation is not subject to the test of meeting the basic features or basic structures theory.

Thus out of the majority of three judges it may be said, on moral though not on strictly legal grounds

that the ratio of Smt Indira Nehru Gandhi v. Shri Raj Narain 1975 Supp SCC 1 at pp. 261-262 para 691

was reduced from 3:1 to 2:2 (Khanna J. abstaining) on 08.11.77. Thus reliance placed by the

Constitution Bench in Kuldip Nayar v Union of India 2006 (7) SCC 1 at pp. 67 para 105 on Indira

Nehru Gandhi v. Shri Raj Narain 1975 Supp SCC 1 appears misplaced, especially as para 238 quoted

from the minority judgment of Untwalia, Shinghal & Jaswant Singh JJ. in State of Karnataka v. Union

of India 1977 (4) SCC 608 at pp. 723 at para 238, was rejected 4:3 by the majority as discussed in

succeeding paragraphs.

9. In State of Karnataka v. Union of India 1977 (4) SCC 608 the 7 judges Constitution Bench

dismissed the Article 131 Petition (Centre State Dispute where it was held by a majority of 6:1

(Kailasam J. dissenting) that federalism (in the strict view taken herein of federalism) is not part of

basic structure of the Constitution of India). Verma & Yogeshwar Dayal JJ. did not consider it

necessary to discuss Basic Structure Doctrine as in their view the area of justiciability being narrower

than that indicated by the other 7 judges, it was unnecessary to even consider secularism or any other

factor of the Basic Structure Doctrine (See 1994 (3) SCC 1 at pp. 83 para 39). It is a different matter

that, subsequently, after noting a diluted version of Union biased/ centric federalism, seven out of nine

judges in Constitution Bench in S.R. Bommai vs. Union of India, 1994 (3) SCC 1, held that Union

biased/ centric federalism is part of the Basic Structure Doctrine. Five separate judgments were

delivered by the 7 judges Constitution Bench in State of Karnataka v. Union of India 1977 (4) SCC

608. Beg CJ, having discussed in detail the 13 judge Constitution Bench judgment in Kesavananda

Bharati Sripadagalvaru and Ors v. State of Kerala and Anr 1973 (4) SCC 225 and also the 5 judge

Constitution Bench judgment in Smt Indira Nehru Gandhi v. Shri Raj Narain 1975 Supp SCC 1 at 1977

(4) SCC 608 at pp. 677-678 paras 120 – 125, concluded with a majority of 4:3 that the test of meeting

the basic features or basic structures “can be and have to be used to test the validity of ordinary laws

just as the other parts of the constitution”:

(1) Beg CJ, at SCC pp. 677 Para 120 held "...in every case where reliance is placed upon it, in the

course of an attack upon legislation, whether ordinary or constituent (in the sense that it is an

amendment of the Constitution), what is put forward as part of "a basic structure" must be justified by

references to the express provisions of the Constitution." and, significantly, went on to hold at SCC pp.

679 Para 125 that "No doubt, as a set of inferences from a document (i.e. the Constitution), the doctrine

of "the basic structure" arose out of and relates to the Constitution only' and does not, in that sense,

appertain to the sphere of ordinary statutes or arise for application to them in the same way. But, if, as

result of the doctrine certain imperative are inherent in or logically and necessarily flow from the

constitutions ‘basic structure ’, just as though they are its express mandates, they can be and have to be

used to test the validity of ordinary laws just as the other parts of the constitution so used.."

(2) Chandrachud J., agreed with Beg CJ at SCC pp. 704-705 at paras 195-198 rejecting the argument of

the Additional Solicitor General that ordinary laws have to answer only two tests and none other (SCC

pp. 704 at para 195) and agreeing with the conclusions of Beg CJ. (SCC pp. 705 at SCC para 198).

Thus Chandrachud J. had come full circle from Smt Indira Nehru Gandhi v. Shri Raj Narain 1975 Supp

SCC 1 at pp. 261-262 para 691 where he had held ordinary legislation is not subject to the test of

meeting the basic features or basic structures theory.

(3) Bhagwati J., was in entire agreement with the judgment delivered by Chandrachud J. on merits but

discussed Article 131 in greater detail for a fuller consideration of certain other aspects of applicability

of Article 131. (SCC pp. 705 at para 199)

(4) Kailasam J., noticed at SCC pp. 732-733 at paras 257-258 the judgments in Kesavananda 1973 (4)

SCC 225 & Smt Indira Nehru Gandhi v. Shri Raj Narain 1975 Supp SCC 1 qua basic structure

doctrine. Kailasam J. rejected the contention of the Union of India at SCC pp. 736 at para 261 qua

Commissions of Inquiry Act, 1952 “that the notification does not contravene any of the specific

provisions of the Constitution and as such the legislative competence of the Union cannot be

questioned.” He concurred with Beg CJ and Chandrachud & Bhagwati JJ. that, as regards the

notification under the Commissions of Inquiry Act, 1952, the court could test the legislative

competence of the Union in judicial review in its original jurisdiction under Article 131.

(5) Per contra Untwalia J. (for himself, Singhal and Jaswant Singh JJ.) held that ordinary legislation is

not subject to the test of meeting the basic features or basic structures theory. (SCC pp. 723 para 238)

10. That the Constitution Bench in Kuldip Nayar v Union of India 2006 (7) SCC 1 (5 judges) has, per

incuriam, neither noticed, nor overruled intervening judgments of three Constitution Benches including

S.R. Bommai vs. Union of India, 1994 (3) SCC 1 (9 judges), Ismail Faruqui v. Union of India 1994 (6)

SCC 360 & B.R. Kapur v. State of T.N. 2001 (7) SCC 231 which envisage the extension of the power

of judicial review to executive actions and/ or ordinary laws impugned qua basic structure doctrine,

which are on the lines of the law laid down in State of Karnataka v. Union of India & Anr. 1977 (4)

SCC 608 (7 judges).

11. In S.R. Bommai vs. Union of India, 1994 (3) SCC 1 in re promulgation under Article 356 and

validity of laws and orders passed during such promulgation, a 9 judge Constitution Bench in 6

separate opinions settled/acknowledged the law on certain aspects of Basic Structure Doctrine, namely,

(1) secularism, (2) democracy (already settled on 24.04.73/07.11.75 per Sikri CJ, Shelat, Grover,

Hegde, Mukherjea, Jaganmohan Reddy JJ. with clarification on 07.11.75 by Khanna J.), (3) judicial

review/ separation of powers, (4) Union biased or centric federalism and (5) Rule of Law. ((1)

Secularism – Sawant, Kuldip Singh, Jeevan Reddy, Agrawal, Pandian, Ramaswamy & Ahmadi JJ. at

SCC paras 2, 10, 13, 19, 26, 28, 29, 36, 39, 153(VIII), 176, 185, 248, 252, 303, 304, 308 & 434 (10),

(2) Democracy - Sawant, Kuldip Singh, Jeevan Reddy, Agrawal, Pandian, Ramaswamy & Ahmadi JJ.

at SCC paras 2, 10, 13, 19, 96, 102, 103, 106, 168, 176, 248, 270 & 303, (3) Judicial review/

separation of powers – Sawant, Kuldip Singh, Jeevan Reddy, Agrawal, Pandian, Ramaswamy &

Ahmadi JJ. at SCC paras 2, 10, 31, 32, 33, 34, 35, 106, 153 (I), 248, 255, 330, 331 & 435, (4) Union

biased or centric federalism – Sawant, Kuldip Singh, Jeevan Reddy, Agrawal, Pandian, Ramaswamy

& Ahmadi JJ. at SCC paras 2, 4, 23, 24, 96, 106, 168, 247, 248, 276 & 434 (9), (5) Rule of Law –

Jeevan Reddy, Agrawal, Pandian, Ramaswamy & Ahmadi JJ. at SCC paras 2, 10, 252, 270 & 281). It is

significant that five of the learned judges, Jeevan Reddy, Agrawal, Pandian, Ramaswamy & Ahmadi

JJ. clarified that democracy included the third tier of local governments as part of Basic Structure

Doctrine at SCC paras 2, 5, 8, 10, 20 (State of Karnataka v. Union of India 1977 (4) SCC 608), 184,

281 & 304. Jeevan Reddy, Agrawal, Pandian, Sawant & Kuldip Singh JJ. approved the applicability of

Barium Chemicals Ltd. and Anr vs The Company Law Board and Others AIR 1967 SC 295 (5 judges)

(Ahmadi, Verma & Yogeshwar Dayal JJ. dissenting at SCC paras 35 & 47) for maintainability of

challenge qua Basic Structure Doctrine to actions/ orders (executive, administrative, quasi-judicial,

legislative and/ or judicial) which do not adhere to Rule of Law at SCC paras 2, 70, 280, 366-369 &

380. Ramaswamy, Sawant & Kuldip Singh JJ. approved the ratio of State of Rajasthan v. Union of

India 1977 (3) SCC 592 at SCC paras 72, 91 & 93 whereas Jeevan Reddy, Agrawal, Pandian, Ahmadi,

Verma & Yogeshwar Dayal JJ. indicated certain areas of disagreement with the ratio of State of

Rajasthan v. Union of India 1977 (3) SCC 592 qua withholding of material on which advice was

tendered to the President under Article 356 and any dismissal of the State governments on the ground

of different political party coming into power at the Centre at SCC paras 2, 20, 31, 33, 35, 47, 48, 284,

288, 290, 299, 324, 330, 344-347, 373 & 379.

12. In Ismail Faruqui v. Union of India 1994 (6) SCC 360 at pp. 422 para 96 in re Acquisition of

Certain Area at Ayodhya Act, 1993, an ordinary Act, the Constitution Bench held:

“96. As a result of the above discussion, our conclusions, to be read with the discussion,

are as follows :

(1)(a) Sub-section (3) of Section 4 of the Act abates all pending suits and legal

proceedings without providing for an alternative dispute-- resolution mechanism for

resolution of the dispute between the parties thereto. This is an extinction of the judicial

remedy for resolution of the dispute amounting to negation of rule of law. Sub-section

(3) of Section 4 of the Act is, therefore, unconstitutional and invalid.”

13. In B.R. Kapur v. State of T.N. 2001 (7) SCC 231 in re interpretation of executive power by the

Governor:

(a) Bharucha J. speaking for himself, YK Sabharwal, Ruma Pal JJ.,the Constitution Bench held at SCC

pp. 293 at para 29 held:

“..nothing can better demonstrate that it is permissible for the court to read limitations into the

constitution based on its language and scheme and its basic structure.”

(b) Pattanaik, J. (concurring with Bharucha, J.) held at SCC pp. 309 at para 70:

“Judicial review is the basic and essential feature of the Indian constitutional scheme entrusted

to the judiciary. It is the essence of the rule of law that the exercise of the power by the State

whether it be the legislature or the executive or any other authority, should be within the

constitutional limitation and if any practice is adopted by the executive, which is in violation of

its constitutional limitations, then the same could be examined by the Courts. In S.R. Bommai

vs. Union of India, 1994 (3) SCC Page 1, this Court held that a proclamation issued by the

President on the advice of the council of ministers headed by the Prime Minister is amenable to

judicial review.”

(c) Brijesh Kumar J. concurred with the judgment of Pattanaik, J. at SCC pp. 315 at para 77.

14. On maintainability of suit under Article 131 (question of law qua basic structure doctrine/ judicial

review) the 7 judge Constitution Bench in State of Karnataka v. Union of India 1977 (4) SCC 608, in 4

separate judgments delivered for the majority by Beg CJ, Chandrachud J., Bhagwati J. & Kailasam J.

held that Article 131 was indeed attracted for purposes of maintainability of suit. Kailasam J. dissented

in the majority dismissal of the suit, in minority of 1:6, by holding that suit should be upheld because it

was his opinion that strict federalism is part of the basic structure doctrine. The Constitution Bench in

Kuldip Nayar v Union of India 2006 7 SCC 1 has erroneously interpreted only a highly truncated and

therefore misinterpreted, per incuriam, detached part of judgment of Beg CJ's argument at SCC pp. 677

Para 120 "...in every case where reliance is placed upon it, in the course of an attack upon legislation,

whether ordinary or constituent (in the sense that it is an amendment of the Constitution), what is put

forward as part of "a basic structure" must be justified by references to the express provisions of the

Constitution." Beg CJ, significantly, went on to hold at SCC pp. 679 Para 125 that "No doubt, as a set

of inferences from a document (i.e. the Constitution), the doctrine of "the basic structure" arose out of

and relates to the Constitution only' and does not, in that sense, appertain to the sphere of ordinary

statutes or arise for application to them in the same way. But, if, as result of the doctrine certain

imperative are inherent in or logically and necessarily flow from the constitutions ‘basic structure ’,

just as though they are its express mandates, they can be and have to be used to test the validity of

ordinary laws just as the other parts of the constitution so used.."

15. That the very act of declaring the Commissions of Inquiry Act, 1952, not being any sort of

amendment to the Constitution, as not unconstitutional is judicial review of basic structure of the

Constitution not having been violated in this case by an ordinary law, albeit, the Commissions of

Inquiry Act, 1952. Hence in State of Karnataka v. Union of India 1977 (4) SCC 608 Chandrachud J.

was on the same page as Beg CJ as regards the latter’s conclusion at SCC pp. 679 Para 125 that "No

doubt, as a set of inferences from a document (i.e. the Constitution), the doctrine of "the basic

structure" arose out of and relates to the Constitution only' and does not, in that sense, appertain to the

sphere of ordinary statutes or arise for application to them in the same way. But, if, as result of the

doctrine certain imperative are inherent in or logically and necessarily flow from the constitutions

‘basic structure ’, just as though they are its express mandates, they can be and have to be used to test

the validity of ordinary laws just as the other parts of the constitution so used.."

16. Chandrachud J., and Bhagwati J. agreed in entirety with judgment of Beg CJ whereas Kailasam J.

agreed with Beg CJ. qua Article 131 only on the question of law qua basic structure doctrine/judicial

review. The full argument of Beg CJ. qua Article 131, which found support with and was approved by

Chandrachud J., Bhagwati J. & Kailasam J. (7 judges Bench) was therefore ignored, nay slaughtered,

by the unanimous decision of a later 5 judges Bench in Kuldip Nayar v Union of India 2006 7 SCC 1 at

pp.66-67 paras 103-106 which is nothing but a grave judicial disaster.

17. That even the separate judgment of Chandrachud J., in State of Karnataka v. Union of India 1977

(4) SCC 608 appears to have been similarly truncated and therefore misinterpreted. The unanimous

verdict of Kuldip Nayar v Union of India 2006 7 SCC 1 at pp.66-67 paras 103-106 quoted only a

truncated and therefore misinterpreted part of judgment of Chandrachud J.’s argument at SCC pp. 705

Para 197 "...if a law is within the legislative competence of the Legislature, it cannot be invalidated on

the supposed ground that it has added something to, or has supplemented, a constitutional provision so

long as the addition or supplementation is not inconsistent with any provision of the Constitution.” but

significantly omitted to mention the conclusion of the learned judge at SCC pp. 705 para 198 which

held that “I am, therefore, of the opinion that though the suit filed by the State of Karnataka is

maintainable under Article 131 of the Constitution, the notification issued by the Government of India

on May 23, 1977 is within the scope of section 3(1) of the Commissions of Inquiry Act, 1952 and that

the Act is not unconstitutional for any of the reasons mentioned on behalf of the State Government.

Accordingly, I agree respectfully with the conclusions reached by my Lord the Chief Justice in the

case.”

18. This error was compounded in Kuldip Nayar v Union of India 2006 (7) SCC 1 by further error of

using operative part of minority judgment, Untwalia J., Shingal J. & Jaswant Singh J. who rejected the

arguments qua Article 131 (question of law qua basic structure doctrine/judicial review) in State of

Karnataka v. Union of India 1977 (4) SCC 608 at pp. 723 para 238 "Mr. Sinha also contended that an

ordinary law cannot go against the basic scheme or the fundamental backbone of the Centre-State

relationship as enshrined in the Constitution. He put his argument in this respect in a very ingenious

way because he felt difficulty in placing it in a direct manner by saying that an ordinary law cannot

violate the basic structure of the Constitution. In the case of Smt Indira Nehru Gandhi v. Shri Raj

Narain such an argument was expressedly rejected by this Court."

19. Thus the later 5 judges Bench in Kuldip Nayar v Union of India 2006 (7) SCC 1 concluded, per

incuriam, and unanimously held at SCC p.67 para 106:

“The doctrine of ‘Basic Feature’ in the context of our Constitution, thus, does not apply to

ordinary legislation...."

20. The above error of declaring on 22.08.06 that ordinary statute can never be challenged on basic

structure doctrine was further compounded by subsequent judgments remaining silent on this issue and/

or favouring the ratio of Kuldip Nayar v Union of India 2006 (7) SCC 1. This is an untenable

proposition as per doctrine of interpretation of Article 141 law. A 5 judge bench may not over rule the

specific point decided by a 7 judge bench that an ordinary statute may be challenged on the test of basic

structure provided always that as held in State of Karnataka v. Union of India 1977 (4) SCC 608 at

SCC pp. 679 Para 125 "as result of the doctrine certain imperative are inherent in or logically and

necessarily flow from the constitutions ‘basic structure ’, just as though they are its express mandates,

they can be and have to be used to test the validity of ordinary laws just as the other parts of the

constitution so used.." .

21. K.Prabhakaran v. P.Jayarajan 2005 (1) SCC 754 (5 judges) (Interpretation of sub-section (4) of

Section 8 of the Representation of the People Act, 1951) and Lily Thomas v. Union of India & Ors

2013 (7) SCC 653 (2 judges) (Challenge to sub-section (4) of Section 8 of the Representation of the

People Act, 1951) appear to be in irreconcilable conflict with each other, though ostensibly reconciled.

However if the judgments in State of Karnataka v. Union of India 1977 (4) SCC 608 (7 judges)

(Challenge to the Commissions of Inquiry Act, 1952), S.R. Bommai v. Union of India 1994 (3) SCC 1

(9 judges), Ismail Faruqui v. Union of India 1994 (6) SCC 360 (5 judges) (Challenge to the

Acquisition of Certain Area at Ayodhya Act, 1993) and B.R. Kapur v. State of T.N. 2001 (7) SCC 231

(5 judges) (Interpretation of sub-section (4) of Section 8 of the Representation of the People Act, 1951)

are properly interpreted to fully resolve the issue of ultra vires of sub-section (4) of Section 8 of the

Representation of the People Act, 1951 upon a judicious consideration of the Basic Structure Doctrine,

it is more than likely that the ratio of Lily Thomas v. Union of India & Ors 2013 (7) SCC 653 (2

judges) would hold the field at the cost of K.Prabhakaran v. P.Jayarajan 2005 (1) SCC 754 (5 judges).

The conviction in a murder case of sitting MLA of Samajwadi Party, Kaptan Singh Rajput and his

being sentenced to life imprisonment on 05.01.15 is bound to lead to another challenge to sub-section

(4) of Section 8 of the Representation of the People Act, 1951.

CONCLUSION

22. There is a need to take these judgments into account in any case or cases where it is proposed to

challenge an ordinary law on grounds other than violation of fundamental rights for violation of the

Basic Structure Doctrine.

ACKNOWLEDGMENTS Arvind P. Datar, Senior Advocate, Madras High Court, Dr. Sanjay Jain, Associate Professor, ILS Law College, Pune, V

Venkatesan, Senior Editor, Frontline, for material accessed in publications referred to, and members of the legal fraternity

with whom many hours of fruitful discussion has given the author valuable insights into the inner workings of perhaps the

best legal system world-wide, that is available to the discerning citizen of India.