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26 May, 2007

Another superstructure built on fraudulent foundation?

The basic structure theory and the creamy layer theory are two ideas that sprouted in fertile Indian judicial minds decades after the Constitution came into force and have been widely propagated by the Supreme Court since then.
The basic structure theory was propounded by Chief Justice S. M. Sikri when the court decided the Kesavananda Bharati case on April 24, 1973.
A 13-member bench, the largest in the court’s history, was constituted to hear the case as the matter called for review of the judgment in the Golak Nath case, which was decided by an 11-judge bench in 1967. The 13 judges produced 11 separate judgments.
T.R.Andhyarujina, a former Solicitor General, who was counsel for one of the parties in the case, writes: “It was a hopelessly divided verdict after all the labour and contest of five months. No majority, no minority, nobody could say what was the verdict.
“How was it then said that the Court by a majority held that Parliament had no power to amend the basic structure of the Constitution? Thereby hangs a tale not generally known. Immediately after the 11 judges finished reading their judgments, Chief Justice Sikri, in whose opinion Parliament’s power was limited by inherent and implied limitations, passed on a hastily prepared paper called a ‘View of the Majority’ for signature by the 13 judges on the bench. One of the conclusions in the ‘View of the Majority’ was that ‘Parliament did not have the power to amend the basic structure or framework of the Constitution’. This was lifted from one of the conclusions in the judgment of Justice H. R. Khanna. Nine judges signed the statement in court. Four others refused to sign it.”

Andhyarujina’s reconstruction of the formulation of the basic structure theory appears on the Editorial page of The Hindu. See “Basic structure of the Constitution revisited”.
See also Superstructures built on fraudulent foundations.

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