'The basic structure doctrine of our Contitution

Shanti Bhushan (born 11 November 1925)

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Dr.B.Ambedkar

Vithal Mahadeo Tarkunde

                Shanti Bhushan (born 11 November 1925) is a former Law Minister of India at Ministry of Law and Justice  in the Morarji Desai Ministry and also a senior advocate.Now crossing 90 through a glorious judicial carrier .   Adv  Shanti Bhushan, N.A. Palkhivala ,Vithal Mahadeo Tarkunde all are to be  remembered  with gratitude !As they have  saved the Indian democracy. 'Largest democracy' become the 'Greatest Democracy in the world'(at least for a small interlude).    The basic structure doctrine is an Indian judicial principle that the Constitution of India has certain basic features that cannot be altered or destroyed through amendments by the parliament.

N.A. Palkhivala

In Kesavananda Bharati v State of Kerala .Argument by great N.A. Palkhivala is worth remembering.  Let us revisit that great moments with nostalgia :- Kesavananda Bharati v State of Kerala .----Argument by great N.A. Palkhivala. Issue was “Can Parliament amend basic structure of the constitution with a brutal majority ? Let us look proceedings . Great Palkhilvala :- “ If the parliament in future is passing an amendment demanding “Prime Minister of India should always be from a particular family !” .(recollect Mrs Indira Gandhi ,daughter of Pandit Nehru  was the P.M of India then !). Hon: Judge: “ Do you think that the parliament is  insane ?“ Celebrated answer was  : “The problem is not what  a sane parliament  do. BUT WHAT AN INSANE PARLIAMENT SHOULD NOT  DO” . The power of the argument was an inspiration to all of us who were with the J.P movement -It was during my student days and was the Southern regional coordinator of 'Students Union for Civil Liberties and Democratic rights [the student wing of PUCL – travelled extensively and the argument of Palkhilvala we got it  hearsay!. We were fortunate to get in touch with Vithal Mahadeo Tarkunde (3 July 1909, Saswad – 22 March 2004, Delhi),the "Father of the Civil Liberties movement" in India and a former judge of the Bombay High Court .The Supreme Court of India also praised him as "undoubtedly the most distinguished judge of the post-Chagla 1957 period" But now I am not getting the reference of the argument more informed friends please Help – I am not mentioning the names of  his books  and publications for obvious reasons -It was the most productive period of my life. Now I am writing these to remind our younger generation 'Emergency period was for sure the darkest period in Indian History but for those who reacted  properly got the best from that -quoting from my chosen discipline of academic activity, Physics I have understood and tried to impart the information that 'Entropy is a measure of disorder but with out entropy there is no growth!'- In History Arnold Toynbee has correctly pointed out this fact by saying "The Civilization which faces no challenge eventually become moribund ". Let us return to Basic principle doctrine of our constitution let me quote what ever I got after googling “ Indira Gandhi was determined to cut the Supreme Court and the High Courts to size and she introduced a series of constitutional amendments that nullified the Golak Nath, Bank Nationalisation and Privy Purses judgements. In a nutshell, these amendments gave Parliament uncontrolled power to alter or even abolish any fundamental right. Although the court upheld the basic structure doctrine by only the narrowest of margins, it has since gained widespread acceptance and legitimacy due to subsequent cases and judgements. Quit irony of events,  very same legendary Nani Palkhivala represented Mrs Gandhi  for her appeal for   an unconditional stay. Before the vacation judge, Justice V.R. Krishna Iyer, Shanti Bhushan succeeded against Palkhivala, . On June 24, 1975, Justice Iyer gave Gandhi only a partial stay — she could continue as an MP and PM but could not vote or participate in Lok Sabha proceedings.
                              On June 25, hardly 12 days after the election verdict and a day after the conditional stay, the internal Emergency was declared and many opposition leaders were detained without trial, including Jayaprakash Narayan, Atal Bihari Vajpayee and L.K. Advani. The press was muzzled, censorship imposed, and even judgements could not be reported. A pall of fear enveloped the country. Justice Iyer’s conditional stay and Shanti Bhushan’s victory in Allahabad earned them the unmerited distinction — unintended and unforeseen — of being the fathers of the Emergency     

On her appeal to the Supreme Court for an unconditional stay, Gandhi was represented by the legendary advocate, Nani Palkhivala. Before the vacation judge, Justice V.R. Krishna Iyer, Shanti Bhushan succeeded against Palkhivala, who had argued for an unconditional stay. On June 24, 1975, Justice Iyer gave Gandhi only a partial stay — she could continue as an MP and PM but could not vote or participate in Lok Sabha proceedings.
On June 25, hardly 12 days after the election verdict and a day after the conditional stay, the internal Emergency was declared and many opposition leaders were detained without trial, including Jayaprakash Narayan, Atal Bihari Vajpayee and L.K. Advani. The press was muzzled, censorship imposed, and even judgments could not be reported. A
- See more at: http://indianexpress.com/article/opinion/columns/emergency-antidote/#sthash.srXyUpmR.TRUDkdXU.dpuf

                              The subsequent attempt to suppress her prosecution through the 39th Amendment. When the Kesavananda Bharati v State of Kerala ,case was decided, the underlying apprehension of the majority bench that elected representatives could not be trusted to act responsibly was perceived to be unprecedented. However, the passage of the 39th Amendment proved that in fact this apprehension was well-founded. In Indira Nehru Gandhi v. Raj Narain, a Constitutional Bench of the Supreme Court used the basic structure doctrine to strike down the 39th amendment and paved the way for restoration of Indian democracy. Raju Ramachandran put it succinctly in his essay:quote/“The basic structure doctrine proceeds upon a distrust of the democratic process, which itself must surely be part of the basic structure. In limiting the amending power, the basic structure doctrine in fact stifles democracy, a basic feature.”/unquote - The text book example of insane -undemocratic and KHAP model,was that with a doctored majority by inviting all Delhi M.L.As and goons. Mr Arvindh Kejeriwal humiliated the Indian consciousness .I can never never forget the live telecast showing ,Respected Bushan in his eighties running for life and refuse to comment to the T.V crew !. Those who knows his contribution in this 'Basic principle doctrine  and hundreds of issues which upheld the dignity of rule of law .Quoting his words regarding,  IAC  "This is the last bus to democracy and next is anarchy" we are forced to think about 'A next bus after the last'. oxymoron claims now a days are not uncommon .  Verdict first and trial next -a paraphrase of 'Alice in  Wonderland' is the working rule of A.K, Khap .    Thousands of volunteers are worried and in a state of despair ,those who support A.K honestly are hoping to bring an amicable solution. Compromise needs more compromises with a hope to maintain status qua ,  just like a lie needs  more lies to mask the truth and violence breeds more violence.   But taking up the challenge to bring history to its logical course -And it will make us  better citizens and that would be more productive.

Please visit my blogs

 1. Lahor speech by Dr Ambedkar     and How Kerala Nars ,Ezhavas and other communities  becomes Hindus

2.  Swaraj Abhyan Draft constitution -for Discussion

3.  AAP Politics and cpmments in F.B