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(13) Mr. A. C. Shubh, the petitioner in Criminal Writ No. 62 of 1976, first urged that the 38th Amendment of the Constitution is destructive of the basic structure of the Constitution inasmuch as it prevents or is violative of the concept of judicial review and the federal structure of the Union. We have, therefore, to first examine whether the 38th Amendment adversely affects the basic structure of the Constitution.

(14) The concept of "the basic structure" was first propounded in His Holiness Kesavananda Bharati Sripadaqalvaru and others v. State of Kerala and another, . It is a matter of judicial history that the Constitution 24th Amendment Act was passed as a result of the decision of the Supreme Court in L. C. Golak Nath v. State of Punjab, . In this case what had been held was that Article 368 related only to the procedure for amending the Constitution but did not confer on the Parliament any power to do so. The 24th Amendment expressly empowered the Parliament to amend any provisions of the Constitution including those relating to fundamental rights and further made Article 13 of the Constitution inapplicable to an amendment of the Constitution under Article 368. Inasmuch as the 24th Amendment itself tended or appeared to be contrary to the rule laid down in L. C. Golak Nath's case the matter had to be reconsidered in Kesavananda Bharati's case. A special bench of 13 Judges overruled Golak Nath but also brought in the concept of the basic structure of the Constitution. So, what we have to sec is whether Kesavananda Bharati lays down any rule which could support the contention made by the petitioner that judicial review of executive action is a basic structure of the Constitution.

(17) Sikri, C. J. in the same case has expressed himself as follows (Para 302, Page 1535 of the report) : "THE learned Attorney-General said that every provision of the Constitution is essential; otherwise it would not have been put in the Constitution. This is true. But this does not place every provision of the Constitution in the same position. The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the constitution remains the same. The basic structure may be said to consist of the following features: (1) Supermacy of the Constitution; (2) Republican and Democratic forms of Government. (3) Secular character of the Constitution; (4) Separation of powers between the legislature, the executive and the judiciary; (5) Federal character of the Constitution."

It will thus be seen that Hon'ble the Chief Justice did not include judicial review as one of the features of the basic structure of our Constitution.

(18) Shelat, and Grover, JJ. have also made no reference to judicial review as a feature of the basic structure of our Constitution. After observing : "Our Constitution is federal in character and not unitary. In a federal structure the existence of both the Union and the State is indispensable and so, is the power of judicial review," their Lordships go on to illustrate "the basic elements of the Constitutional structure", as follows:- "THE basic structure of the Constitution is not a vague concept and the apprehensions expressed on behalf of the respondents that neither the citizen nor the Parliament would be able to understand it are unfounded. If the historical background, the Premable, the entire scheme of the Constitution, the relevant provisions thereof including Article 368 are kept in mind there can be no difficulty in discerning that the following can be regarded as the basic elements of the constitutional structure. (These cannot be catalogued but can only be illustrated): 1. The supermacy of the Constitution. 2. Republican and Democratic form of Government and sovereignty of the country. 3. Secular and federal character of the Constitution. 4. Demarcation of power between the legislature, the executive and the judiciary. 5. The dignity of the individual secured by the various freedoms and basic rights in Part Iii and the mandate to build a welfare State contained in Part IV. 6. The unity and the integrity of the nation."

(22) We, therefore, are firmly of the opinion that the specific exclusion of the jurisdiction of the court by sub-clause (b) of clause (5) and the non-justiciability postulated by sub-clause (a) of clause (5) of Article 352 do not, in any way, affect the basic structure of our Constitution.

(23) It was then urged that the 38th Amendment inasmuch as it affects the federal structure adversely affects our Constitution. The argument is really not understandable. Indeed, our Constitution which is more or less federal in character has many contingencies provided in it when the federal structure gets automatically affected. The moment an order is made under part 18 of the Constitution the necessary consequences must follow even before any amendment' of the Constitution. This basic fact is an integral part of our Constitution and so must be regarded as a feature of the basic structure of the Constitution as adopted by the Constituent Assembly. The chapter on emergency and emergency provisions were conceived by the framers of the Constitution who also conceived and enshrined the fundamental rights. If it is said that the democratic form of Government is in jeopardy by the 38th Amendment it must also be said that the emergency provisions as provided in the Constitution when originally adopted conceived of such a feature. We cannot accept the contention that the democratic form of Government is destroyed by the Constitutional Amendment or the emergency provisions. These were, in fact, adopted to save the democratic set up. The consequences of a declaration by a proclamation on the satisfaction postulated by Article 352(1) and (3) follow from the original provisions of the Constitution. Such inborn provisions in the Constitution cannot be subjected to the basic structure test at all as they form part of the basic structure itself as adopted by the Constituent Assembly.