The judgment clipped the widest power of Parliament to amend the Constitution, saying Parliament cannot “emasculate” its basic features. It simultaneously gave the judiciary the authority to review any amendment to restrict the power of Parliament to amend every bit of the Constitution.
Justice Nariman was speaking at the launch of his book, ‘The Basic Structure Doctrine: Protector of Constitutional Integrity.’ “All I can say is that the endeavour of this book is that this doctrine has come to stay. It can never go.
“And if by chance, it ever goes, God help this country. Jallianwala Bagh becomes a distinct possibility,” the former apex court judge said.
Justice Nariman spoke about the Keshavananda Bharti case, which established the basic structure doctrine and its long-term implications in protecting fundamental rights by limiting the power of constitutional amendments.
“13th April is perhaps the blackest day in our history, which we must never forget because, on that day in 1919, British general Reginald Dyer took our own troops in Jallianwala and actually fired at and killed and hurt a very large number of our citizens, And that is exactly the point of this book.
“Can that ever occur again in free India, this time Dyer being replaced by one of our own generals or police captains and doing this to our own people? Obviously, it cannot. And the reason it cannot is because, in large measure, of this great doctrine which the Supreme Court has laid down to save us from constitutional amendments which may allow such things,” he said.
During a panel discussion during the event, Supreme Court judge Justice K V Viswanathan applauded the book for its “chilling clarity”.
“I can put my hand on the heart and say that I have read most parts of it (the book) till the later portion dealing with the other jurisdictions. And it’s a fascinating edition. You get a feeling that Rohinton is arguing in court,” the apex court judge said.
He said the book raised fascinating points and was a remarkable treatise, having neatly tabulated illustrations, background of the case and arguments, including those of the minority judges in the case.
Justice Viswanathan highlighted the robustness of the Kesavananda Bharati ruling, noting that no critic of the ‘basic structure’ doctrine has yet provided a compelling alternative theory. “Unless you come up with a sound theory to oppose it — which none have — the doctrine is here to stay,” he said.
He went a step further, asserting that even a national referendum could not override the inalienable nature of certain fundamental rights. “Even in a referendum, these inherent, natural rights cannot be taken away. They are beyond the reach of majority rule.” Reflecting on the man behind the historic case, Justice Viswanathan proposed a portrait or statue in memory of Swami Kesavananda Bharati.
“Like England honoured Donoghue of Donoghue v Stevenson fame, it’s time we did the same for Kesavananda Bharati. His contribution is immense — whether or not he fully understood it at the time.” Justice Viswanathan concluded by noting the continued influence of the Kesavananda Bharati judgment, calling it a source of inspiration for both lawyers and judges alike.
Justice Nariman, the son of noted jurist Fali Nariman, demitted office as a Supreme Court judge on August 12, 2021 after over seven years of judiciary’s docket with verdicts including declaring privacy as a fundamental right, setting aside an IT Act provision enabling easy arrests, decriminalising consensual gay sex and permitting women of all ages to enter Kerala’s Sabarimala temple.
Justice Nariman is an ordained Parsi priest and among the select company of five lawyers who directly joined the apex court bench on July 7, 2014.
A graduate from Shri Ram College of Commerce, Justice Nariman did his LL.B and LLM from Delhi and Harvard University respectively and got the unique distinction of getting designated as a senior advocate at the age of 37 years, instead of the stipulated 45 years, as then Chief Justice of India M N Venkatachaliah amended rules in 1993 for him. PTI MNR SJK KSS KSS
