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70. The first reference to basic structure them came from Pakistan Supreme Court, when Fazulal Quader Chawdry v. Mohd. Abdul Haque 1963 PLD 486 (SC) it was held that franchise and form of Government are fundamental features of the Constitution. Cornelius C.J. relied on the Judges oath of office for striking down the action of the President, under what he called, "Sub-Constitutional Power".

71. It fell to the lot of learned Mudholakar J., to point out to Indian courts by emphasising phrase "basic features of the Constitution" in Sajjan Shingh's v. State of Rajasthan wherein he observed as under;:

While we want this Constitution to be as solid and permanent as we can make it, there is no permanence in Constitution. There should be a certain flexibility. If you make anything rigid and permanent, you stop the nation's growth the growth of living, vital, organic people... In any event, we could not make this so rigid that it cannot be adopted to changing conditions. When the world is in turmoil and we are passing through a very swift period of transitions, what we may do today may not be wholly applicable tomorrow." Parliamentany debates, Vols. XII-XIII Part II 1951 p. 6617 Jawaharlal Nehru Amend as you may even the solemn document which the founding fathers have committed to your care, for you know best the needs of your generation. But, the Constitution is a precious heritage, therefore, you cannot destroy its identity." Minerva a Mills (supra) (p. 1798) Chandrachud C.J., The First Amendment was thus made the Constitutional ideal of equal justice a living truth. It is like a mirror that reflects the ideals of the Constitution, it is not the destroyer of the basic structure. The provisions introduced by it and the 4th amendment for the extinguishment and modification of rights in lands held or let for purposes of agriculture or for purpose ancillary thereto, strengthen rather than weaken the basic structure of the Constitution. (Wamman Rao v. Union of India ) Chandrachud C.J.

79. In Kesavanand Bharati' decision (supra) the majority consisting of Ray, Palekar, Mathew, Beg, Dwivedi, Chandrachud, Reddy and Khanna JJ. declared the first part of Article 31C as valid. This means that Article 19 did not pertain to the essential feature of the basic structure of the Constitution.

80. No doubt, Justice Tulzapurkar in Bhim Singh v. Union of India (supra) observed that Section 2(f), 11(6) and 23 of the Urban Land (Ceiling and Regulation) Act, 1976 flagrantly violates these aspects of Articles 14 and 31 which constituted the essentials and basic features of our Constitution and therefore, protection of Article 31(b) was not available. In para 49, he opined that the impugned Act has been put in Ninth Schedule by 40th amendment of the Constitution but as it destroyed the basic structure of the Constitution, it was beyond the constituent power of the parliament. He did not allow the protective umbrella of Article 31C. However, with respect, this is the solitary voice as in the celebrated cases of Kesavanand Bharati (supra) Indira Gandhi's case , Minerva Mill' case (supra) and Waman Rao's case (supra), nowhere Article 31 was put on the high pedestal of essential features of basic structure.

81. I would have dealt with in Length all the cases from Sankari Prasad AIR 1951 SC 428, Sajjan Singu (Ibid), Golaknath AIR 1967 SC 1643, Kesavanand Bharati supra) Indira Gandhi supra), Habeas Corpus AIR 1976 SC 1207, Assembly Dissolution AIR 1977 SC 1361 Minerva Mills (supra), Waman Rao (supra), Bhimsingh (supra) and transfer of Judge's case (supra) far elaborating the concept of basic structure under the Indian Constitution. However, I find that concept the solitary view of Hon'ble Justice Tulzapurkar, nowhere the right of the property has been given at prime place. I, therefore, hold that the right to property as contained in Article 31, fundamental right before 44th Amendment was never an essential-basic -feature of the basic structure of the Constitution and therefore the parliament was within its competence under Article 368 to delete it by 44th Amendment. I hold that 44th Amendment is intra vires to this limited extent,