Why the basic structure is a fraud on the constitution – explained in a few words 

Mathews j nedumpara

98205 35428

14th September 2025

 

I am often asked why I call the “basic structure” a laughable theory. I can answer this in a few words by citing an example. If one were to invoke Article 32 prior to Kesavananda Bharati, the judges would unfailingly ask “why are you here? And which fundamental right of yours is infringed?”

 

No one would dare approach the Supreme Court without recourse to any other Court unless there is a grave violation of the fundamental rights, wholly justifying the invocation of the original jurisdiction of the Supreme Court.

 

After Kesavananda Bharati, however, “public spirited” persons with wholly private agendas, state on oath that none of their rights, not to speak of fundamental rights, are infringed, but the “basic structure” is infringed. One would expect the judges to ask them at the very threshold how, if none of their fundamental rights are infringed does it matter if the “basic structure” (unknown to jurisprudence) is infringed, and if the real reason is the infringement of their fundamental rights, namely, freedom of expression, liberties, right to life, then why don’t they assert that instead of the basic structure which is incapable of any specific meaning.

 

I dare to say, in all humility, that the basic structure theory is contrary to the fundamental principles of jurisprudence, namely, ubi jus ibi remedium (where there is a right, law will provide a forum and a remedy), opening the doors of the court to busy bodies. The theory is a fraud on the constitution.