Ahmedabad, Feb 4 (PTI) The most important 'saptarishi' or seven guiding priorities through 'Amrit Kaal', a period of 25 years to convert India into a developed country, was the rule of law, the central pillar of which was the "written Constitution" and its "basic structure", senior advocate Arvind Datar said here on Saturday.

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He was delivering in online mode the 19th Justice PD Desai Memorial Lecture on the theme '50 Years of Basic Structure'.

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In her Budget speech on February 1, Union Finance Minister Nirmala Sitharaman had spoken about the seven priorities, or 'saptarishi', to guide the country through 'amrit kaal' till 2047, when 100 years of Independence will be celebrated.

"Two days ago, when I heard the Budget (speech), I was told that 2023 is the starting point of the 'Amrit Kaal,' and we would have 'Saptarishi' going on till 2047. It's an ambitious, audacious target, and all the goals are very laudable. And it will be really 'Amrit Kaal' if these goals are achieved," Datar said.

"But I would venture to suggest that for a republican democracy, if it has to be in 'Amrit Kaal,' then the most important 'saptarishi' is the rule or law. The most important pillar of the rule of law is the written Constitution. The most important pillar of the written Constitution is its basic structure," he asserted.

The 'basic structure' is a legal doctrine that the Constitution has certain characteristics, which cannot be erased by the legislature.

Datar, who appears in the Supreme Court in matters relating to constitutional, corporate, commercial, tax and regulatory laws, questioned the critics of the 'basic structure' and asked whether it has ever become a stumbling block in any proposal of the elected government related to social development or towards constitutional end.

Questioning these critics, he asked, "You want to revisit which part of the basic structure? Are you going to say equality is not a basic structure? Right to speech is not a basic structure? Judicial review is not a basic structure? What are you trying to say?"

He said these critics fail to come up with answers or a concrete example as to where the basic structure was coming in their way, adding he sincerely hoped "we do not have the occasion to review the basic structure".

Datar said the apex court has never come in the way of social reform or stopped the intention of Parliament to implement reservation or any social policy.

He was speaking about how the apex court passed a judgment saying one cannot go beyond a certain percentage in reservation, but the Parliament passed one amendment after the other restoring reservation.

"Take the new 103rd Amendment of the Constitution (raising the total reservation quota to 59.5 per cent) for EWS (Economic Weaker Sections). I think it is a correct amendment. The 103rd amendment was upheld by the Supreme Court," he said.

He said the legislature, the executive and judiciary are delegates in a written Constitution, which confers power on these three organs of government, and they go by what is called the principal agent of theory.

"Just as an agent cannot act against the principle, the delegates cannot go against their mother document," he said.

He said the 39th Amendment, passed during the Emergency of 1975-77, which placed the election of the President, the Vice President, the Prime Minister and the Speaker of the Lok Sabha beyond the scrutiny of the courts, was held to be violative of basic structure.

This established that nobody was above the law, he asserted.

The 41st Amendment Bill, which never saw the light of day, talked about giving lifetime immunity to the country's President, Vice President, Prime Minister, and Governor from any civil and criminal prosecution, would also have been "struck down as violative of the basic structure," Datar claimed.

Elaborating on the history of the doctrine of the basic structure, Datar said one paragraph of Justice HR Khanna's judgment (in the Kesavananda Bharati versus State of Kerala case of 1973) saved the country from "dictatorship in the years to come."

Justice Khanna rejected the will of the majority, touted nowadays that the Parliament represents the will of the people, he added.

In his judgment, Justice Khanna said the "old Constitution" should continue even after such an amendment as the "old Constitution" is the "essential Constitution", which contains secularism, freedom, democracy, upper and lower houses, Datar said.

Datar said Justice Khanna even rejected the idea of referendum as it "talks of the majority, and the essence of constitutional democracy is that a minority is protected even though he does not have a proper voice".

"Even a small minority is entitled to protection under the constitution. So all these arguments about majority, will of the majority are debunked by Justice Khanna's judgment and he upholds the basic structure," Datar asserted.

(The above story is verified and authored by Press Trust of India (PTI) staff. PTI, India’s premier news agency, employs more than 400 journalists and 500 stringers to cover almost every district and small town in India.. The views appearing in the above post do not reflect the opinions of LatestLY)