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46. The provisions discussed in the above segment indicate that secularism is embodied in the constitutional scheme, particularly Part III. In Kesavananda Bharati v. State of Kerala, this Court held that Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution. 46 It was held that the power of Parliament to amend the Constitution cannot have the effect of destroying or abrogating the basic structure or framework of the Constitution. 47 Further, the judges constituting the majority enumerated certain T M A Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 [157] Ahmedabad St Xavier’s College Society (supra) [9]; T M A Pai Foundation (supra) [138] [“138. As we look at it, Article 30(1) is a sort of guarantee or assurance to the linguistic and religious minority institutions of their right to establish and administer educational institutions of their choice. Secularism and equality being two of the basic features of the Constitution, Article 30(1) ensures protection to the linguistic and religious minorities, thereby preserving the secularism of the country. Furthermore, the principles of equality must necessarily apply to the enjoyment of such rights. No law can be framed that will discriminate against such minorities with regard to the establishment and administration of educational institutions vis-à-vis other educational institutions. Any law or rule or regulation that would put the educational institutions run by the minorities at a disadvantage when compared to the institutions run by the others will have to be struck down.”] Ahmedabad St Xavier’s College Society (supra) [75] (Justice H R Khanna) S R Bommai (supra) [183] (1973) 4 SCC 225 Kesavananda Bharati (supra) [1426] (Justice H R Khanna) [“1426. […] The word “amendment” postulates that the old Constitution survives without loss of its identity despite the change and continues even though it has been subjected to alterations. As a result of the amendment, the old Constitution cannot be destroyed and done away with; it is regained though in the amended form. What then is meant by the retention of the old Constitution? It means the retention of the basic structure or framework of the old Constitution. A mere retention of some provisions of the old Constitution even though the basic structure or framework of the Constitution has been destroyed would not amount to the retention of the old Constitution. Although it is PART D basic features of our Constitution, including the secular character of the Constitution. 48 In S R Bommai v. Union of India,49 a nine-Judge Bench held that secularism is a basic feature of the Constitution. The issue that arises for our consideration is whether the basic structure doctrine can be applied to invalidate ordinary legislation.

52. In Kuldip Nayar v. Union of India,61 a Constitution Bench held that ordinary legislation cannot be challenged for the violation of the basic structure of the Constitution. Statutes, including State legislation, can only be challenged for violating the provisions of the Constitution. 62 However, in Madras Bar Association v. Union of India,63 a Constitution Bench applied the basic structure doctrine to test the validity of Parliamentary legislation seeking to transfer judicial power from High Courts to tribunals. Justice J S Khehar (as the learned Chief Justice then was), writing for the Constitution Bench, held that the basic structure of the Constitution will stand violated if Parliament does not ensure that the newly created tribunals do not “conform with the salient characteristics and standards of the court sought to be substituted.” 64

53. In Supreme Court Advocates-on-Record Association v. Union of India,65 this Court had to decide the constitutional validity of the Constitution (Ninety- ninth Amendment) Act 2014 and the National Judicial Appointments Commission Act 2014. Justice J S Khehar (as the learned Chief Justice then was) built upon his reasoning in Madras Bar Association (supra) by observing (2006) 7 SCC 1 [“107. The basic structure theory imposes limitation on the power of Parliament to amend the Constitution. An amendment to the Constitution under Article 368 could be challenged on the ground of violation of the basic structure of the Constitution. An ordinary legislation cannot be so challenged. The challenge to a law made, within its legislative competence, by Parliament on the ground of violation of the basic structure of the Constitution is thus not available to the petitioners.”] Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1 [116] Madras Bar Association v. Union of India, (2014) 10 SCC 1 [109] [“This Court has repeatedly held that an amendment to the provisions of the Constitution would not be sustainable if it violated the “basic structure” of the Constitution, even though the amendment had been carried out by following the procedure contemplated under “Part XI” of the Constitution. This leads to the determination that the “basic structure” is inviolable. In our view, the same would apply to all other legislations (other than amendments to the Constitution) as well, even though the legislation had been enacted by following the prescribed procedure, and was within the domain of the enacting legislature, any infringement to the “basic structure” would be unacceptable.”] Madras Bar Association (supra) [136]. [“136. (iii) The “basic structure” of the Constitution will stand violated if while enacting legislation pertaining to transfer of judicial power, Parliament does not ensure that the newly created court/tribunal conforms with the salient characteristics and standards of the court sought to be substituted.”] (2016) 5 SCC 1 PART D that a challenge to ordinary legislation for violation of the basic structure would only be a “technical flaw” and “cannot be treated to suffer from a legal infirmity.” 66 He observed that the determination of the basic structure of the Constitution is made exclusively from the provisions of the Constitution. The observations of the learned Judge are instructive and extracted below:

54. However, Justice Lokur differed with Justice Khehar on the issue of testing the validity of a statute for violation of the basic structure doctrine. Justice Lokur followed the view of the majority in the State of Karnataka (supra) 67 that a statute cannot be challenged for violating the basic structure doctrine.

55. From the above discussion, it can be concluded that a statute can be struck down only for the violation of Part III or any other provision of the Constitution or for being without legislative competence. The constitutional validity of a statute cannot be challenged for the violation of the basic structure of the Constitution. The reason is that concepts such as democracy, federalism, and secularism are undefined concepts. Allowing courts to strike down legislation for violation of such concepts will introduce an element of uncertainty in our constitutional adjudication. Recently, this Court has accepted that a challenge to the constitutional validity of a statute for violation of the basic structure is a technical aspect because the infraction has to be traced to the express provisions of the Constitution. Hence, in a challenge to the validity of a statute for violation of the principle of secularism, it must be shown that the statute violates provisions of the Constitution pertaining to secularism. Supreme Court Advocates-on-Record Association (supra) [795] [“795. For the purposes of the present discussion, I would prefer to follow the view expressed by a Bench of seven learned Judges in State of Karnataka v. Union of India [State of Karnataka v. Union of India, (1977) 4 SCC 608 (Seven-Judge Bench)] that it is only an amendment of the Constitution that can be challenged on the ground that it violates the basic structure of the Constitution—a statute cannot be challenged on the ground that it violates the basic structure of the Constitution. [The only exception to this perhaps could be a statute placed in the Ninth Schedule of the Constitution.] The principles for challenging the constitutionality of a statute are quite different.”] PART D c. Regulation of minority educational institutions