Constitution cannot be dismembered under guise of constitutional amendment: Justice PV Sanjay Kumar

The Basic Structure doctrine propounded by the Supreme Court in the case of Keshavananda Bharati vs. State of Kerala protects the Constitution from being a replaced by a new one under the guise of Constitutional amendment by a majoritarian parliament, Supreme Court judge Justice PV Sanjay Kumar said on Saturday..The power to amend implies the power to make changes but not to enact a completely new Constitution and the Constitution cannot be dismembered under guise of constitutional amendment, the apex court judge underlined.The judge was addressing criticism of courts undertaking judicial review exercises to examine the validity of constitutional amendments and protect the basic structure of the Constitution. "(In Keshavanadha Bharati case) the phrase, 'amendment of the Constitution' was interpreted to mean that the amended, original Constitution would still remain standing and the power of amendment would not be a source bring about a new Constitution. This implies that there is a requirement to retain the basic fundamental structure of the Constitution, as it exists, which cannot be altered by amendment. Critics argue that it is not for the courts to create judicial eternity clauses when the Constitution itself is silent and the Court must limit itself to an examination as to whether the formal procedural conditions prescribed in the Constitution have been met while making the amendment," he observed. In response to this criticism, he said,"The answer to this argument lies in the very power that is conferred by the Constitution, that is the power to amend the existing constitution - stress being made on the connotations of the word 'amend', which would imply making changes, but which would not include the authority to enact a completely enact a new Constitution. When courts curb use of the power of amendment ... the Court is not protecting itself, but protecting fundamental principles such as independence of the judiciary and the rule of law which form the mosaic of the Constitution."He added that there is a difference between an amendment to the Constitution and its dismemberment. "Amendment would alter the provisions within certain existing parameters while dismemberment would be a total and foundational alteration, departing from the existing framework. In the result, dismemberment brings about a completely transformative change. It is this distinction which has to be kept in mind while considering the validity of constitutional amendments as it is not permissible to completely dismember the existing constitution in the guise of undertaking amendment to it," he said. .The Supreme Court judge was speaking at the 4th Justice HR Khanna Memorial National Symposium, where he was the Chief Guest.In his keynote address, Justice Kumar remarked that Justice Khanna still stands as an 'undying source of inspiration' for all in the judicial fraternity, and remained 'a shining beacon' to those whose quest is to uphold Constitutional values.The apex court judge recounted that it was a sad truth that Justice Khanna had practically foreseen the drastic events that would unfold and lead to the proclamation of the Emergency in 1975.Pertinently, he cautioned against Constitutional law remaining static. "Just as our Constitution cannot be rigid and static, so to cannot the principles of Constitutional law. Both must grow and evolve as per the need of the hour, to be contemporaneously relevant to society and to serve their purpose within the boundaries within the Basic Structure", he said.On a parting note, he said that Indian citizens have a responsibility to respect, value and cherish the rights and liberties protected by the Constitution."I would like to leave you with the thought that it is ultimately for all of us as citizens of this great country to respect, value and cherish the rights and liberties secured and protected by our Constitution and live up to the duties and obligations that come along with those rights and liberties," he said..Gujarat High Court Chief Justice Sunita Agarwal was a Special Guest at the session..In her address, Justice Agarwal said that the preamble of the Constitution is meant to embody the key to understanding the Constitution."The meaning and extent of Basic Structure needs to be construed in view of the principles laid down in the preamble of the Constitution. The specific provisions of the preamble forms the yarn from which the Basic Structure has to be woven. As we continue to navigate the complexities of the governance and societal challenges, let us remain steadfast to commitment to the principles enshrined in the Preamble," she said..The Confederation of Alumni for National Law Universities Foundation (CAN Foundation) is organising the event virtually this year in collaboration with the NALSAR University of Law, Hyderabad and the Dharmashastra National Law University, Jabalpur (DNLU).The welcome address was delivered by Prof. Srikrishna Deva Rao, Vice Chancellor at NALSAR, Hyderabad.Advocates Abhikalp Pratap Singh, Sriram Parakkat and Siddharth Sharma welcomed the speakers..The event is telecast live on the official YouTube channel of the CAN Foundation and can be accessed as below:Session I - Pre-Lunch Session - Click hereSession II - 2:30 P.M. onwards - Click here.[Follow our live-coverage of the first session]