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Issue 2 Final

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15 views4 pages

Issue 2 Final

Uploaded by

Gk Kapadiya
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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For petitioners:

I. Whether the basic structure doctrine can be applied to invalidate provisions of


ordinary legislation such as the representation of people act,1951?
It is submitted that the basic structure doctrine can be applied to invalidate the
provisions of ordinary legislations such as the representation of people act, 1951 as
the basic structure doctrine can be applied to invalidate the ordinary legislations.

1. It is humbly submitted that the basic structure doctrine has evolved as an


independent and distinct type of judicial review that applies to state action
generally, and not necessarily to constitutional amendments which are under
challenge. The following cases of supreme court proves this point.
In Dr. D.C. Wadhwa and Others v State of Bihar1, the Supreme Court struck down
the re-promulgation of ordinances in Bihar on the ground of basic structure
violation.
In L. Chandra Kumar v Union of India2, the Supreme Court not only struck down
the constitutional amendment depriving the high court of its jurisdiction under
Article 226 and 227 (from decisions of an administrative tribunal), but declared
Section 28 of the Administrative Tribunal Act, 1985 providing for “exclusion of
jurisdiction of courts except the Supreme Court under Article 136 of Constitution”
as unconstitutional on the ground that they violated the basic structure doctrine.
In Indra Sawhney case (1999)3, a bench of three judges of the Supreme Court held
that a state-enacted law (by Kerala on reservation for the ‘creamy layer’) violated
the doctrine of basic structure.
2. Furthermore, the court has also resorted to the basic structure doctrine in Ismail
Faruqui v Union of India 4 in order to invalidate an ordinary legislation dealing
with the demolished Babri Masjid, namely, the Ayodhya (Acquisition of Certain
Areas) Act, 1993. Similarly, in G. C. Kanungo v State of Orissa5, the court used
the doctrine to invalidate an arbitration law enacted by the (then) Orissa assembly.
3. It is respectfully submitted that in State of Karnataka v. Union of India6, saying
that only a constitutional amendment can be challenged on the ground of violation
of the doctrine of basic structure, not an ordinary legislation.
4. In the light of above submissions,

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for Respondents: Advanced

I. Whether the basic structure doctrine can be applied to invalidate provisions of


ordinary legislation such as the representation of people act,1951?
It is submitted that the basic structure doctrine cannot be applied to invalidate
the provisions of ordinary legislations such as the representation of people act,
1951 as the basic structure doctrine can only be applied to invalidate the
constitutional amendments and not the ordinary legislations.

1. The basic structure doctrine was not mentioned in the constitution of India but
was propounded by Indian judiciary in keshavnanda Bharti case7 in which it
was held that through amendments the parliament in the exercise of its
‘constituent power’ under Article 3688 of the Indian constitution can amend
any provision of the constitution provided that such amendment did not
change the Constitution’s basic structure.
2. It was also held by Justice Y.V. Chandrachud in paragraph 691 of his separate
judgment in Kesavananda Bharati case that the validity of an ordinary
legislation can be tested on two grounds, namely, legislative competence and
whether or not it attracts the bar of articles 13(1)9 and 13(2)10 of the
Constitution.11
3. It is firstly submitted that a constitutional amendment, made by virtue of
Article 36812, is an “amending power”, whereas, ordinary law, made by virtue
of Articles 245 to 24813 on entries in the 7th Schedule14, deals with a
“legislative power” and Secondly, the “basic structure” theory was evolved in
Kesavananda Bharati case15, because a frontal attack on a constitutional
amendment cannot be made on ground of violation of Part III per se, as the
expression “law” under Article 13(3)16 does not covers a constitutional
amendment. The point that the expression “law” under Article 13(3) does not
covers amendments under Article 368 was held by 8 Judges out of 13 Judges
in the Kesavananda Bharati case by overruling C. Golak Nath v. State of
Punjab17 on this aspect.
4. Furthermore, the SC in the in Indira Gandhi vs. Raj Narain18 case held that
“To 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 Article

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Kes v Kerala (chandrachud J).
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245 19and 24620 and the legislative entries and the provision in Article 1321.
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." 22
5. It is humbly submitted that if the theory of basic structures or basic features
will be applied to legislative measures it will denude Parliament and State
Legislatures of the power of legislation and deprive them of laying down
legislative policies. This will be encroachment on the separation of powers”.23
6. Further it is submitted that “certain constitutional amendment has to be passed
by a special majority and certain such amendments have to be ratified by the
legislatures of not less than one-half of the States as provided by Article
368(2).24 An ordinary legislation can be passed by a simple majority. The two
powers, though species of the same genus, operate in different fields and are
therefore subject to different limitations”25

7. The respondent submits that in Kuldip Nayar vs Union of India26, it was


observed by the Supreme Court that the basic structure theory imposes
limitation on the power of the Parliament to amend the Constitution. An
amendment to the Constitution under Article 368 could be challenged on the
ground of violation of the basic structure of the Constitution. An ordinary
legislation cannot be so challenged. The challenge to a law made on the
ground of violation of the basic structure of the Constitution is thus not
available to the petitioners. The court thus dismissed challenges to the validity
of the amendments brought about in the Representation of People Act, 1951,
through the RP (Amendment) Act, 2003.27
8. Furthermore, a statute cannot be challenged on the ground that it violates the
basic structure of the Constitution. [The only exception to this perhaps could
be a statute placed in the Ninth Schedule of the Constitution].28
9. It is humbly submitted that in Ashoka Kumar Thakur v. Union of India29, it
was noticed that it is not open to challenge the ordinary legislations on the
basis of the basic structure principle. State legislation can be challenged on the
question whether it is violative of the provisions of the Constitution. But as
regards constitutional amendments, if any challenge is made on the basis of

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(Ray J
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Election case ( chandrachud)
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State of Karnataka v. Union of India Lokur j
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basic structure, it has to be examined based on the basic features of the
Constitution."
10. Also, in Minerva Mills (1986)30, the Supreme Court dismissed the challenge to
the Nationalisation Act, passed to replace the Sick Textile Undertakings
Ordinance of 1974, on the ground of violation of basic structure doctrine.
11. In the light of the above submissions, it is submitted that the various supreme
court judgements held that ordinary legislation cannot be invalidated by
applying basic structure doctrine and thus the representation of people act
1951 is an ordinary legislation therefore it cannot be invalidated by applying
basic structure doctrine.

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