Certain Fundamental Rights Are Beyond Majority's Hands, Can't Be Taken Away Even In Referendum : Justice KV Viswanathan

Since certain fundamental rights are natural and inherent rights, they are beyond the hands of majority and cannot be taken away even through a referendum, said Justice KV Viswanathan, Judge of the Supreme Court.

Speaking at the launch of the book "'Basic Structure Doctrine: Protector of Constitutional Integrity" written by Justice Rohinton Nariman, former judge of Supreme Court, Justice Viswanathan recalled that the "most difficult questions" Nani Palkhivala ever encountered in his entire career were whether he would have still advocated for basic structure doctrine had Article 368 provided for a referendum.

This was a question asked by Justice D.G Palekar to Palkhivala during the hearing of the landmark Kesavananda Bharati case. Justice Nariman, in his book 'Discordant Notes,' termed it as the most difficult question Palkhivala ever encountered, and that he had difficulty in answering it.

Justice Viswanathan said: 

Mr Palkhivala was asked, you are advocating this theory of basic structure. Would you do this if Article 368 in its original form had always provided for a referendum? In this case, you are not really against the Amendment being proscribed or the basic structure theory which is to be implemented. But you are on the procedure which is prescribed because it's not the Parliament which amends with appropriate ratification, but if it was a referendum, could it amend the basic structure? Rohintan says Palkhivala had difficulty in answering.

Justice Viswanathan added:

Today, in the form Article 368 is, it cannot be substituted in any other form. In my view, even if there was a referendum, since certain fundamental rights are naturally and inherent rights, they cannot be taken away. They were put beyond the hands of majority and fundamental rights are limitation on even the legislative power. Today, in a referendum, it cannot be taken away. But today, its out of question now. The strength of basic structure can be best appreciated if you illustrate them with concrete examples, its a sound theory.