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8. Sri Chaudhary submitted that Clause (4) of Article 243T of the Constitution of India in so far as it makes the provision for reservation in the office of the President in municipalities, is violative of the basic structure of the Constitution of India. According to him, equality before the law is a part of the basic structure of the Constitution. Reservation, except as provided under Article 16(4) of the Constitution, runs counter to this basic structure. The Parliament was, thus, not empowered under Article 368 of the Constitution of India to amend and insert such a provision in the Constitution and, therefore, insertion of Clauses (4) and of Article 243T of the Constitution of India contravenes Article 368 of the Constitution of India. According to him, equality before the law as provided under Articles 14 and 15 of the Constitution of India are basic structure of the Constitution. Article 15(4) which was added later, does not speak about reservation, as does Article 16(4) of the Constitution of India. According to him, in the case of socially, and educationally backward classes, there is no other question but to improve them in respect of social status and education. This matter calls for positive action for improvement in their social life and learning. This is the object. The special provision spoken of must be something other than reservation, some constructive and affirmative action for these classes for removal of deficiency and for their upliftment.

66. In the case of Waman Rao (supra) the Apex Court has held in paragraph 16 of the report as follows :

16. The judgment of this Court in Kesavanand Bharati provoked in its wake a multi-storied controversy, which is quite understandable. The judgment of the majority to which seven out of the thirteen Judges were parties, struck a bridle path by holding that in the exercise of the power conferred by Article 368, the Parliament cannot amend the Constitution so as to damage or destroy the basic structure of the Constitution. The seven learned Judges chose their words and phrases to express their conclusion as effectively and eloquently as language can do. But, as this distance of time any controversy over what was meant by what they said is plainly sterile. At 'this distance of time', because though not more than eight years have gone by since the decision in Kesavananda Bharati was rendered those few years are packed with constitutional events of great magnitude. Applying the ratio of the majority judgments in that epoch-making decision, this Court has since struck down constitutional amendments which would otherwise have passed muster. For example, in Smt. Indira Gandhi the Revenue Raj Narain, , Article 329A(4) was held by the Court to be beyond the amending competence of the Parliament since, by making separate and special provisions as to elections to Parliament of the Prime Minister and the Speaker, it destroyed the basic structure of the Constitution. Ray C.J. based his decision on the ground that the 39th Amendment by which Article 329A was introduced violated the Rule of Law (p.418); Khanna J. based his decision on the ground that democracy was a basic feature of the Constitution, that democracy contemplates that elections should be free and fair and that the clause in question struck at the basis of free and fair elections (pp. 467 and 471); Mathew J. struck down the clause on the ground that it was in the nature of legislation ad hominem (p.513) and that it damaged the democratic structure of the Constitution (p.515); while one of us, Chandrachud, J. held that the clause was bad because it violated the Rule of Law and was an outright negation of the principle of equality which is, a basic feature of the Constitution (pp. 663-665). More recently, in Minerva Mills , Clauses (4) and (5) of Article 368 itself were held unconstitutional by a unanimous Court, on the ground that they destroyed certain basic features of the Constitution like judicial review and a limited amending power, and thereby damaged its basic structure. The majority also struck down the amendment introduced to Article 31C by Section 4 of the 42nd Amendment Act, 1976.

67. Thus, from the aforesaid decisions it is well established and admits of no doubt that even an Act amending the Constitution passed by the Parliament can be challenged on the ground that it violates the basic feature or the basic structure of the Constitution. What is the basic feature or the basis structure of the Constitution has not been defined.

Basic features - what are - some examples :

68. The Apex Court in the case of Smt. Indira Nehru Gandhi (supra) while referring to its earlier decision in the case of Kesavananda Bharati (supra), has held that all the seven Judges who constainted the majority, were also agreed that the democratic set up was part of the basic structure of the Constitution and democracy postulates that there should be periodical election so that the people should be able to re-elect the old representatives or, if they so chose, to change the representatives and elect in their place other representatives. According to the Apex Court, the democracy further contemplates that the election should be free and fair so that the voters may be in a position to vote for candidates of their choice. Democracy can indeed function only upon the faith that elections are free and fair and not rigged and manipulated and that they are effective instruments of ascertaining popular will both in reality and form and are nor mere rituals calculated to generate illusion of deference to mass opinion.

115. The propositions which emerge from the aforesaid decisions of the Apex Court, are that under Article 368 the Parliament has absolute right to amend the Constitution. However, by amendment, the basic features/structures of the Constitution should not be altered. Democracy is a part of the basic structure/feature of our Constitution. The form of the Government is not necessary to be gone into so long as the essential characteristic that enables a system of Government to be called democratic are otherwise satisfied. The right to contest an election either for the membership of a body or any post is not a fundamental right but a right granted under a particular statute. Thus, by insertion of Clauses (4) and (6) in Article 243-T in Part IX-A of the Constitution of India by the Constitution Amendment Act which provides for reservation of the office of the President in municipality for specific categories of person, namely, Scheduled Caste, Scheduled Tribe, Backward Class and women, do not destroy the basic structure of the Constitution of India what to say of any fundamental right of the petitioner. We, therefore, do not find any force in the submission raised for challenging the validity of the Constitutional amendment.