Why the Power to Amend Is Not the Power to Destroy, Darius Khambata Explains at VK 4.0

Speaking at the Legal Session titled Nation State Under the Constitution at Vasudhaiva Kutumbakam Ki Oar 4.0 – Sankraman Kaal, Senior Advocate Darius Khambata delivered a deeply reflective and rights-centric exposition on the nature of constitutional power, the limits of amendment, and the enduring relevance of the Basic Structure doctrine. His intervention emerged as one of the most philosophically grounded contributions of the conclave, engaging with the Constitution not merely as a legal text but as a moral and democratic compact.

Mr. Khambata began by emphasising that the Constitution is far more than an ordinary law; It is a document that encapsulates the dreams, hopes and aspirations of a people and serves as the primary safeguard of individual rights. To view it only through the lens of statutory interpretation, he suggested, would be to diminish its foundational role in shaping democratic governance.

The Constitution, in his view, derives its authority not simply from enactment but from the values it seeks to preserve and the limits it places on power.

Central to Mr. Khambata’s remarks was the question that has animated Indian constitutional jurisprudence for decades: whether the power to amend the Constitution includes the power to destroy it. This question, he noted, lies at the heart of the Basic Structure doctrine, which emerged as the judiciary’s response to the possibility of constitutional self-erosion through formal amendment. Recalling the Constituent Assembly debates, Khambata referred to Dr. B.R. Ambedkar’s warning against easy amendability, observing that excessive flexibility could lead to constitutional chaos; While the framers recognised the need for change, they were equally conscious that a Constitution without enduring limits would fail to protect the rights it promises.

Mr. Khambata explained that the Basic Structure doctrine does not seek to freeze the Constitution in time. Rather, it protects a set of core principles that cannot be compromised under any circumstances, even by a democratically elected legislature. These principles, though not exhaustively enumerated, form the backbone of constitutional identity.

The doctrine, he argued, ensures that constitutional amendments remain acts of preservation rather than instruments of dismantling.

Referring to Article 31C, Mr. Khambata traced its judicial journey to illustrate how constitutional balance has been restored over time. He noted that in Kesavananda Bharati, the Supreme Court addressed only the latter portion of Article 31C, while the provision’s earlier part, seeking to insulate certain laws from judicial review, was struck down years later in Minerva Mills. This evolution, he suggested, reflects the judiciary’s continuing effort to reaffirm constitutional supremacy and prevent the erosion of Fundamental Rights under the guise of socio-economic policy.

While underscoring the importance of the Basic Structure doctrine, Mr. Khambata placed it within a broader framework of constitutional safeguards. Judicial review, he noted, is not confined to challenges against constitutional amendments. Doctrines such as arbitrariness and proportionality provide courts with the tools necessary to scrutinise ordinary legislation that violates constitutional guarantees. Together, these principles ensure that the exercise of State power remains accountable to constitutional norms, he said.

Mr. Khambata also addressed the idea of the Constitution as a living document, cautioning against conflating adaptability with unrestrained change. The Constitution, he observed, was never intended to function as a detailed code of law, but its evolution must remain anchored in its basic fundamentals. As long as these fundamentals are secure, constitutional amendments are not only permissible but necessary. However, when change threatens the very framework that sustains rights and liberties, constitutional intervention becomes imperative, it was added.

In this context, Mr. Khambata expressed concern over the removal of Article 19(1)(f) from the catalogue of Fundamental Rights. He observed that problems arise when a right is entirely displaced from the constitutional rights framework, as this weakens the protective architecture that judicial scrutiny provides. The dilution of rights, he suggested, often occurs not through overt abrogation but through subtle constitutional rearrangement.

Mr. Khambata concluded by reaffirming his belief in the Basic Structure doctrine as an essential safeguard of constitutional democracy. Its true value, he stressed, lies not in resisting change, but in ensuring that change does not come at the cost of constitutional morality. In an era marked by shifting political priorities and expanding State power, his intervention served as a reminder that the Constitution’s endurance depends on its ability to restrain authority, protect rights and preserve the principles that define India’s democratic experiment.

The second legal session of Vasudhaiva Kutumbakam Ki Oar 4.0 - Sankraman Kaal, titled “Nation State Under the Constitution”, turned attention to some of the most enduring and contested questions in Indian constitutional law, particularly the limits of constitutional amendment, the continued operation of Articles 31A, 31B and 31C, and the role of the Basic Structure doctrine in preserving constitutional supremacy.

The panel comprised Additional Solicitor General Pravin Faldessai, Additional Solicitor General S. Dwarkanath, Senior Advocate Percival Billimoria, and Senior Advocate Darius Khambata, each offering distinct perspectives on how these questions have shaped India’s constitutional journey.