Basic structure of Constitution being violated on a daily basis: Kapil Sibal

Supreme Court Bar Association (SCBA) President and Senior Advocate Kapil Sibal on Monday said that the basic structure of the Indian Constitution is being violated on a daily basis. .He added that while the 'Basic Structure doctrine' is here to stay, it could be hollowed out by amending or enacting laws and there is no requirement to bring in a Constitutional amendment to impinge upon Basic Structure. Since laws cannot be challenged in a court of law on the ground of basic structure violation, the doctrine can practically be put to the sword, he said. “What Rohinton has said, the Basic Structure doctrine is here to stay. Nobody can change it … But the real challenge is that you don't need to violate basic structure by changing the principles of basic structure. You can violate basic structure by bringing in ordinary law which is contrary to the basic structure of the Constitution. And the principle laid down in Kesavananda Bharati is that basic structure is only a concept which is applicable to the Constituent power of Parliament. But if we have laws which are contrary to the basic structure, you can't challenge them on grounds of basic structure. But you can violate basic structure on a daily basis, and that is what's happening in this country," Sibal said.He was speaking at the Book release of Justice Rohinton Nariman's book 'The Basic Structure Doctrine'..You can violate basic structure by bringing in ordinary law which is contrary to the basic structure of the Constitution.Kapil Sibal .Sibal added that federalism and secular fabric of society was also being violated through the existing legislations and courts are not striking down those enactments."Now you can't challenge those legislations on the ground that it violates the basic structure. You have to have them struck down by virtue of Article 13, because they violate Part III of the Constitution. That the courts are not willing to do," he said..If Basic Structure doctrine goes, we could see Jallianwala Bagh again: Justice Rohinton Nariman.Sibal earlier recalled that he had just joined the Bar when the Kesavananda Bharati case was being argued."I was a briefless lawyer, so I would normally go from court to court, watching judges. And when I heard that this matter was on, I went to court 1, and there I saw Nani Palkhivala arguing," he reminisced..Courts are not willing to strike down laws violating basic structure.Kapil Sibal.Speaking at the event, former Supreme Court judge Justice AK Sikri also agreed that the Basic Structure doctrine is here to stay."We are a democratic country, a constitutional democracy. It is the people of India who have given us the Constitution. Another important attribute of the Constitution is that we are a liberal democracy...We have fundamental rights. It [Constitution] is based on the dignity which is to be recognised in the people of this country and its is based on the identity as well. We have Directive Principles of State Policy also. Of course, we have elections too. It is in the scheme of the Constitution that the majority will rule. But the government is not given a carte blache. Power of governance are also prescribed in the Constitution and the elected government is to act as per that," he said..Senior Advocate Abhishek Manu Singhvi said that that basic structure cannot be taken away by any constitutional amendment."Some 20 countries around the world now follow our approach. But the country which gave this gift, now occasionally talks of backtracking. It is something we should be proud of," he added.Singhvi also emphasised that the judges are the gatekeepers of the Basic Structure doctrine. "In theory, the Constitution is supreme. But the gatekeepers and interpreters of the Constitution and Basic Structure will remain the judges. Therefore, we now know who is supreme. They are the gatekeepers and interpreters.... that is an area we put our trust in the institution."However, while echoing the views of Sibal, Singhvi said,"There is an important legal issue which the Constitution Bench should decide. Ordinary laws cannot be struck down on basic structure only. Constitutional amendment can. It came in Indira Gandhi case and has been followed in many cases since then. This area must be legally revisited.".Meanwhile, Senior Advocate Arvind Datar said that even ordinary laws can be struck down if they violate the basic structure and there have been judgsments to that effect. “Justice Mathew’s observation [stating ordinary law cannot be struck down on grounds of being violative of basic structure] is more like an obiter. There is no plus and minus. He doesn’t say why, why not. My humble view is that, tomorrow if a matter comes before the High Court or the Supreme Court, and if it violates the basic structure, it cannot pass muster,” he said..Read what Justice Rohinton Nariman said here..[Read Live Coverage below].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.