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However, the doctrine of the basic structure was constitutionalized in the case of Kesavananda Bharati (supra). In the seminal opinion rendered by His Lordship H. R. Khanna J. (as His Lordship then was) in the case of Kesavananda Bharati (supra), it was observed at paragraph No.1426 that 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 alternations. His Lordship further observed that the words "amendment of the Constitution" with all their wide sweep and amplitude, cannot have the effect of destroying or abrogating the basic structure or framework of the Constitution. In other words, His Lordship was of the view that subject to the retention of the basic structure or the framework of the Constitution, the power of amendment is plenary and includes within itself the power to amend the various Articles of the Constitution, including those relating to fundamental rights as well as those which may be said to relate Page No.# 15/40 to essential features. He was also of the view that the right to property does not pertain to basic structure or framework of the Constitution.

19. The above analysis so made makes it clear that the Constitution is the Page No.# 18/40 grundnorm of our nation. The Constitution as was originally framed cannot be questioned by any Court or Authority in the State as to whether the Constitution had been lawfully framed according to any standards. The basic principle of the Constitutional jurisprudence is that the Constitution is supreme above the law and itself governing all other laws. However, the said principles do not apply insofar as the amendments to the Constitution are concerned inasmuch as the validity of an amendment can very well be challenged on the ground that it is ultra vires. At this stage, we may add that our Constitution is a living document and taking into account the challenging conditions and purposes so that a Constitutional provision does not get fossilized but remains flexible enough to meet the newly emerging problems and challenges, the requirement for amending the Constitution emerges. As held by the Full Bench of the Supreme Court in the case of Kesavananda Bharati (supra), the power to amend the Constitution under Article 368 of the Constitution is very wide. The Parliament has all powers to amend the Constitution except to abrogate the Constitution or to change the basic structure of the Constitution. The analysis of the above judgments rendered by the various Constitution Benches of the Supreme Court and interpretation given as to what would constitute the basic structure, show that an amendment to the Constitution can only be challenged on the ground that it infringes upon the essential features forming the basic structure of the Constitution. At the cost of repetition, we find it relevant to yet again to remind ourselves that the instant proceedings is only a reference made to decide as to whether the provisions of Article 226(3) of the Constitution is directory or mandatory and it is not a proceedings wherein the said provision i.e. Article 226(3) of the Constitution is challenged on the ground of being Page No.# 19/40 ultra vires the Constitution as it infringes upon the basic structure of the Constitution.

20. Be that as it may, we find it pertinent to deal with another aspect of the matter which touches upon the scope of judicial review vis-à-vis the plenary powers of the Parliament to amend the Constitution. We feel that this aspect would further throw some light as to whether a Constitutional provision can be declared to be directory and if declared so, what would be the impact upon the said provision.

21. In the case of Janhit Abhiyan (supra), the majority opinion of the Constitution Bench of the Supreme Court was rendered by His Lordship Dinesh Maheshwari, J. (as His Lordship then was). His Lordship observed at paragraph No.78 of the said judgment that the reason for minimal interference by the Court in Constitutional Amendment is not far too seek, inasmuch as, in our Constitutional set up of Parliamentary Democracy, even when the power of judicial review is an essential feature and thereby an immutable part of basic structure of the Constitution, the power to amend the Constitution vested in the Parliament is in terms with Article 368 of the Constitution which is equally an inherent part of the basic structure of the Constitution. His Lordship further opined that both these powers of amending the Constitution by the Parliament and judicial review by the Constitutional Courts are subject to their own limitations. The interplay of amending power of the Parliament and the judicial review by the Constitutional Courts over such exercising of amending power may appear a little bit complex, but ultimately leads towards strengthening the Constitutional value of separation of powers. It was further observed that Page No.# 20/40 this synergy of separation is the strength of our Constitution. Taking into account, the exposition of law in the case of Kesavananda Bharati (supra), wherein it was held that the amending power can be used by the Parliament to amend the Constitution in order to fulfill the obligation imposed on the State, subject, of course, to the defined limits of not damaging the basic structure of the Constitution, His Lordship in his opinion at paragraph No.79, summarized the interlacing of the amending powers of the Parliament and the operation of the doctrine of basic structure. We find it apposite to reproduce paragraph No.79 and it's sub-paragraphs herein under:

27. The above meaning ascribed to the terms "directory" and "mandatory" shows that when a provision is mandatory or absolute, the provision has to be obeyed or fulfilled exactly. However a directory provision only requires substantial compliance. The question therefore arises as to whether a Constitutional provision which is the basic law of the nation can be said to be directory or requiring substantial compliance only. We are of the opinion that taking into consideration the place a Constitution or Constitutional provision holds which is the supreme law of our nation, a Constitutional provision cannot be said or declared to be directory or requiring substantial compliance only. The framers of our Constitution as well as the evolution of the Constitutional Laws as referred to herein above, nowhere conceived that a Constitutional provision would be directory. No doubt, a statutory provision or contractual provision or a term of a tender document can be held to be mandatory or directory on the basis of the language used coupled with the intention of the Legislature or the parties respectively but the said principles of interpretation, in our opinion cannot be imported to interpret a Constitutional provisions to be mandatory or directory. In our opinion, declaring a Constitutional provision to be directory would not only result in demeaning or diluting the powers of the Parliament under Article 368 of the Constitution which is an essential feature of the basic structure of the Constitution, but would also go against the various judicial pronouncements which hold that the power of the Parliament to amend the Constitution is Page No.# 25/40 plenary and wide and the Parliament can amend every aspect of the Constitution, except abrogating the Constitution or changing the essential features forming the basic structure of the Constitution. In addition to the above, we also find it is apposite to observe that except the judgments holding that Article 226(3) of the Constitution to be directory, we have not come across any judgment holding that a Constitutional provision is directory. The reason seems to be obvious inasmuch as the Constitution is the Supreme law of the land. We are further of the view that a Constitutional provision inserted to the Constitution by way of an amendment can be struck down on the ground that the said amendment infringes the basic structure of the Constitution forming the Constitutional core of our Constitution or given an interpretation which would be conducive to the changing times taking into account that our Constitution is a living document but under no circumstances, a Constitutional provision can be said to be directory save and except where the Constitution itself states so.