Basic Structure doctrine, Kesavananda Bharati judgment did not amount to judicial overreach: Arvind Datar

Senior Advocate Arvind Datar on Saturday remarked that the notion that the Basic Structure doctrine was a case of judicial overreach does not sustain itself when one examines the Kesavananda Bharati judgment in detail..The Senior Counsel was delivering the Nineteenth Justice PD Desai Memorial Lecture on the subject Fifty Years of Basic Structure - Judicial Overreach or Constitutional Necessity..The top court in Kesavananda Bharati had outlined the Basic Structure doctrine that says, among other things, that certain provisions of the Constitution cannot be amended by the government..Speaking in the context of the multiple constitutional amendments that were under challenge in that case, Datar said,"We all think Kesavananda was a big check on Parliament, and that the judiciary was overreaching. If you study carefully, everything went the way of the government - (Article) 24 was upheld, 26 was sent back and later upheld; 29 was upheld, 25 first part was upheld. The only thing that was struck down was the second part of 31. If you see it that way, the allegation of judicial overreach is not sustained.".Datar began his address by stating that he chose to speak on the topic given the recent rumblings it had generated in the news.What led to the Basic Structure was frequent amendments and putting of matters in the Ninth Schedule, thus escaping judicial scrutiny, he explained."After the Basic Structure doctrine was put, look at what it could be used to protect our Constitution. Immediately after the Basic Structure, there was the Emergency...You were able to protect, you were able to establish that nobody is above the law. Just because you are the Prime Minister doesn't mean you can do any practice in your election and it will not be questioned.".Datar also flagged the possible implications of some sections of the 42nd Constitutional Amendment Bill being allowed to pass judicial muster."...if you are the President, Vice President, Prime Minister or Governor, then under amended Article 361 - you had lifetime immunity from any civil or criminal prosecution. So, a man could be a Governor for one day and can commit murder, he'll not be liable for prosecution. Fortunately, it never came. But I dare say, if it had, it would have been struck down."Further, the same would have been made Central legislation impossible to be subject to judicial review, he said..Pertinently, Datar said that the Basic Structure was never really accepted by the then government."We all know the clumsy attempt to review it. It was almost an embarrassment for the Supreme Court that 13 judges assembled.".He underscored that no part of the Basic Structure doctrine comes in the way of social development policies or legislation, giving the example of the recent Economically Weaker Sections quota being upheld by the Supreme Court despite the petitioners' reliance on the Basic Strucutre."The most important pillar of a written Constitution is its Basic Structure," he said in conclusion..The Nineteenth Justice PD Desai Memorial Lecture was organised by the Chairman and members of the Justice PD Desai Memorial Lecture Committee and trustees of the Praleen Public Charitable Trust (founded by the late Justice PD Desai).Senior Advocate Suresh Shelat and Advocate General Kamal Trivedi also spoke on the occasion.