J Bhat: Why are all these judgements which do not deal with constitutional amendment get into basic structure? Because some facets get into the lore of basic structure. It started out with basic structure not being applicable to only amendment.
SG: Your Lordships were dealing with administrative order in Indra Sawhney and Jaishree Patil. Someone exercised power in enabling provision.
SG: It is an enabling provision. Even newly inserted (6) is enabling. So states are not mandated to, but permitted to.
J Bhat: 265 says noone can be taxed without authority, it's not FR but it is important. If you delete it, would it not violate basic structure?
CJI: it's a dynamic concept. To begin with, RTE was not a FR but now that you bring it in, and if 20 years later you delete that..
J Bhat: You give this but don't you violate the basic structure when you take it back? Therefore, you have to go back to the specific provisions.
SG: I am coming to that.
J Bhat: Value is to be rooted in some provision. So if there is some tinkering with 14, deletion of some prescribed grounds- like gender etc.
SG: Then equality remains but fundamental structure goes.
J Bhat: Otherwise the theory of classification will permit this.
CJI: One of the grounds is that separation of power is also basic structure. Separation of power with judicial review being given final say is basic structure.
J Bhat: In Indira Gandhi, two things- one is judicial review and one is equality.
SG: There judicial review was taken away. This is the level of threshold.
CJI: Limitation on amending power is itself a part of basic structure.
J Bhat: Form of 368 is also basic structure.
SG: That takes away the very edifice, you're destroying the document by doing that.
J Bhat: In Minerva Mill, the amendment sought to undone Keshavananda. So the court went back to basic structure and said you cannot transcend the amending power. The point is even newly amended features can violate basic structure.
SG: Building a welfare state contained in the DPSPs- this is how the amendment has strengthened the basic structure.