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29. Faced with these facts, It is submitted that the insertion of Cl. (1-A) in Article 31-C, by Section 7 of the Constitution (Thirty-Eighth Amendment) Act, 1975, cannot have the effect of suspending the basic structure and basic principles of the Constitution. Challenge to laws that affect the basic structure of the Constitution should be treated to be alive. The concept of basic principle cannot be controlled by the state of emergency or by any other declaration made by the President who himself is the creation of the Constitution and the orders made by such office under the Constitution cannot eclipse the challenges based on the basic features of the constitutional statute. If the effect of Insertion of clause (1-A) Is to affect that basic principle or structure, it is urged that the Constitution (Thirty-Eighth Amendment) Act, 1975, which in-

serted the said clause by Section 7 has been incompetently made.

30. The newly added Article according to the submission operates upon the enforcement of the remedy and affects the basic rights as contained in Part III of the Constitution. That is not a measure to give immunity. Therefore, it is urged that declaratory reliefs that certain laws have been incompetently made because of the fetters operative upon the legislative powers as contemplated by Part III of the Constitution can still be made by the Courts possessing original jurisdiction. To the extent of such a declaration the scrutiny of the law is effectively permissible in spite of the Presidential Order and in spite of Article 359 (1). In fact, Clause (1-A) is a colourable device and the argument proceeds, therefore, to assert that the basic rights including the one of judicial review as contemplated by Art. 32 and Article 226 of the Constitution are affected and, therefore, such a provision cannot stand in the way of the petitioners in seeking the redress against the law that affects obviously his right to hold property and maintain equality of status. After all, the ratio of the Election Case is that equality is the basic principle fundamental to the Constitutional Law, the Presidential Order putting enforcement of Article 14 in eclipse because of the power conferred by Article 359(1-A) is itself bad. Mr. Dharmadhikari proceeds to classify the laws as being Ordinary Law and the Constitutional Law, the latter being the Constitutional Amendment laws. According to the learned counsel, the principle of constitutional law permits that the constitutional law must satisfy the test of the principles of the basic structure or framework of the Constitution. The law placed in the Ninth Schedule partakes in the nature of the Constitutional Law, because that requires exercise of power for effecting amendment to the Constitution. Therefore, on the principles of basic structure or basic framework of the Constitution, the law will have to be tested. The argument proceeds, such laws though put in the Constitutional umbrella of Article 31-B must be examined and should satisfy the requirements of basic structure or basic framework or basic principle of the Constitution. If, on the scrutiny the laws affect those principles, the Courts are not incompetent to declare them to be void. According to the learned counsel, thus the scrutiny on the basis of Articles 14, 15, 19(d)(e) and (f) and Article 39(a) and (f) to test the validity of the laws in issue is & scrutiny to find the basic con-stitutional structure and not a scrutiny shut out by the Presidential Order. The argument is that under the constitutional premise, there is an injunction to protect the weaker sections of the society, particularly women and minors. That obligation must be treated as fundamental and basic to the constitutional framework and cannot be violative and the challenge cannot be defeated by merely placing the Act in Ninth Schedule. So is the argument based on equality of status and equal protection of laws though with regard to property. It is indeed contended that if democratic set-up is basic concept, then equality before law is equally basic being the part of democratic set up. That principle is affected clearjy by the provisions in issue. Article 31-B is a frail device to protect such laws.

limited constituent power and is not therefore omnipotent.
SECOND: These basic structure principles include the fundamental constitutional contemplation of the permissive judicial review of the Constitutional Am-andment Act so as to find out firstly whether in exercise of the constituent powers what is enacted is a law permissible by the premises of Article 368 of the Constitution; and secondly whether the amendment in substance does or does not accord with basic structure doctrine or basic framework or basic principles of the Constitution. In the exercise of making an amendatory law by exercise of constituent power, it would be impermissible to render legislative judgments on cases which under the Constitution form part of the jurisdiction of the judiciary and is preeminently a judicial function.

73. Article 31-B does not affect in our view any of the enumerated basic structure principles evolved by the BASIC STRUCTURE CASE , On the other hand, it subserves the constitutional purpose. After all, Parts III and IV of the Constitution appear to evolve a composite scheme for the governance of the country. There is underlying assurance given to the people regarding dispensation of political, social and economic justice. The Constitution assures that in the state of just conditions, liberty of thought, expression, belief, faith and worship along with equality of status and equality of opportunity will be rendered available to the people at large. The directive injunctions in Part IV are the matters for the governance of the country and in terms it dictates that these principles shall be applied as the duty by the State in making laws. The rule of law that is eventually to be ushered by these guiding principles will have to subserve the needs of the tenets of provisions contained in Part IV so as to achieve a state where social, economic and political justice shall prevail. These principles and these constitutional premisses have to operate to restructure the social, economic and political life of the society as much as to confer upon the members thereof the fruits of liberty and equality. In the making of these constitutional premises, the life of the people, their economic, social and cultural conditions involving levels operating and resulting inequality as well conditions oppressive between man and man are all part of the constitutional experience that can hardly be glossed over. Rights are not mere exhortations. Possessor of right has to be conscious, able, activist. Conditions that tend to bind masses in processes of mute economic and social subjections undo the capacity of the political person to enjoy, to realise or to stand by the right so guaranteed. On closer analysis the rights conferred by Part III are active principles to be upheld by applying the principles of governance enunciated as basic to the State particularly by Part IV of the Constitution. It follows such constitutional conferment of right cannot affect the eventual objective the Constitution has placed before itself the objective to offer justice to the people as the collective entity in social, economic and political field and to achieve just conditions for all where exploitation and oppression in human or material relations shall for ever be banished,