Breaking News SCAORA e-Lecture Series: Senior Advocate Harish Salve on basic...

SCAORA e-Lecture Series: Senior Advocate Harish Salve on basic structure, landmark cases

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New Delhi, Oct 16 (ILNS) The Supreme Court Advocates On Record Association (SCAORA) on Saturday organised an Academy e-lecture series on the Constitution, specifically on the Basic Structure and Analysis of Landmark Decisions of Minerva Mills, I.R. Coelho and Kesavananda Bharti.

Senior Advocate Harish N. Salve started the lecture series with his observations on various types of constitutions, including the flexible and inflexible. He said the American constitution is inflexible as parliament cannot create a law to bypass it, whereas, in India, Parliament has a much larger scope. Barring the basic structure, secularism and free, fair elections.

One exception that remains, he said, “When we draft a petition, we say it’s illegal ultra vires and violative of basic structure, Conceptually there is a problem if you are challenging an entry in 9th schedule. But if it is not in 9th schedule legislation, the question of basic structure doesn’t come in. Because you realise when you talk about basic structure, you are narrowing your challenge And ordinary legislation must face the full brunt of 14,19,21. So when you are drafting one has to be careful about it.

“Not the rights test is applied but the right itself is available, the notion of basic structure comes out of 368 and 368 applies to Constitutional amendment. So an ordinary law violating the basic structure is an inaccurate expression. It has gained currency because if you violate 14,19,21 you say it violates basic structure but conceptually that’s a wrong articulation of principles.

“A law which violates Article 14, violates 14. the law which violates 14 and 19 violates 14 and 19. the law which violates 14, 19 and 21 violates the whole thing. But an amendment of the Constitution that seeks to impair 14, 19 and 21 applying the rights test violates the structure. It’s a narrower tunnel you have through which you can pass. If you can pass through that your challenge succeed.

“But merely because a parliamentary ordinary legislation violates 14,19,21 doesn’t mean it violates the basic structure but it’s a manner of expression. More like a powerful colloquial expression. So this is the history of the development of the basic structure. If you understand all these judgments, it becomes far more comprehensive./ILNS/SNG/IL

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