WHAT IS A CONSTITUTION OF A COUNTRY? WHETHER IT SUPERSEDES 'COMMON LAW OF BRITAIN (UK), OR SUBSERVIENT, IS BIG QUESTION TO COMMONWEALTH COUNTRIES?
Other day, retired justice Mr.K.T.Thomas questioned SC verdict on 'fundamental rights' and he says, 'fundamental rights' are not so sacrosanct that parliament or state legislatures can abridge or modify - quoting Bombay hawkers v state case - where in he says 'if the fundamental right under Art 21 is given support saying the legislatures can modify or abridge the article, if not allowed, 'the hawkers would obstruct the pedestrian paths by crowding on there or the main roads would be blocked', my view, why do we have judiciary for, if you allow legislatures can pass statutes of the fundamental rights?
Fact is, 'Fundamental rights are indeed absolute if used in a sensible direction, not otherwise, is the sum and substance of fundamental right doctrine.
Therefore, the only judiciary can only interfere, not the legislatures, for the legislatures work more politically, in their own selfish interest, like in capitalistic economies, not obviously always in the interest of common man on the street, under socialistic principles.
Therefore, I will tend to agree with Mr. K.T. Thomas only to the extent, that fundamental rights do not allow you to do whatever you like to do, in the name of the fundamental concept.
Without Constitution, you don't have any legislature as such.
When so, how can you resort to 'Common law of Britain' - In Britain, you had Monarchies that ruled the Britain, thereafter today, you don't have a written Constitution as such, not making the British Parliament not accountable to any written Constitution as such.
So the comparison with British Parliamentary system of Governance cannot be viable, and untenable for India, for Indians have a very detailed written Constitution, as such.
See, Gurmeet Ram Rahim Singh as self styled 'Guru' simply raped as he liked that cannot be termed as a fundamental right at all for he misused his fundamental right under Art 21 r/w Art 19, as if the Constitution gave him his fundamental right as he perceived like any other rapists in India , like Asaram as guru and so many so called 'Gurus' as if they are some God incarnation as such.
Similarly, many other rapists misused the fundamental rights, so the statute is not a right solution by any legislatures or even the Parliament.
All these are some kind of Green eyed monsters.
See, in Ishrat Jehan case on 'triple talaq', she fought against, for 'triple talaq' without any sensible reason cannot be allowed under so called 'personal religious law or custom', that way the Hon'ble SC rightly set aside the right of All India Muslim Board; for she invoked her fundamental right of Uniform civil code' (UCC) ( a right under Part IV of the Constitution - a directive principle, now treated as a fundamental right), under Art 21 of Part III of the Constitution of India.
Muslim personal law Board cannot invoke its fundamental right under Art.25 of the Constitution, for the Board is some 'legal person' not like any individual, for fundamental rights apply to individuals only in a single capacity, not as a collective capacity.
If you read 'fundamental right in a collective capacity, you make a hell of difference ; that means 'No collective' ever can claim the fundamental right, for the fundamental right is to be claimed in Individual capacity only, then there is a lot of difference one can make out.
See Mandal Commission classified castes - OBC/BC etc that way Art 21 was applied, where in the question of 'caste' idea can never be applied at all, like any single individual, but politicians played with the Fundamental rights like a 'person' in personum, they obviously treated 'caste' as an individual but caste is as such some collective idea, so obviously caste is some 'legal person' like a company, obviously 'No company can claim fundamental right like an individual as a or some living being', but politicians played with for the purpose of 'vote bank politics', that idea cannot work in any socialistic society as such, for India is 'Socialistic Republic', not some Aristocracy, Plutocracy, or some 'Dictatorship' , one needs to view.
Similarly, you allowed so called 'creamy layer', 'creamy layer' as such, is not like an individual, a living person, but some so called 'legal person', for your political convenience; that political convenience cannot trash the very constitutional doctrine as such, so we call constitutional basic rights called, Liberty, Individual, that way basic tenets surfaced.
When CJI Mr. S.R. Das, in 'Champakam Duraiswamy v/s ST. of Madras, (1951) rightly held that Art 368 is a clear bar on parliament, obviously a bar on any legislature in any state in India, so the Full Bench rightly set aside the Madras Government order in regard to Medical and Engineering colleges reservations in colleges admissions - the very same bench rightly viewed the 'fundamental rights' cannot be mangled by any Parliament or the legislatures.
But, most of the judges, misunderstood the doctrine of 'Judicial Restraint' that way they allowed, the government in power top mangle the 'fundamental rights' - see in Golaknath v of Punjab, CJI Mr. K.Subba Rau, brought in the civil rights theory of 'prospective over ruling doctrine';
that way he allowed the government of India to hold some 13 Acts under the schedule IX found in the first constitutional amendment, obviously some kind of concession on government indeed a misplaced doctrinal idea, for never 'No statute' can escape judicial scrutiny, as such; for, this 'prospective over ruling' concept is indeed an irrelevant in the case of fundamental right of the Judiciary shall be an independent institution, under Separation of Powers' every advanced constitution is enshrined with.
Why the Judiciary need be subservient to any elected political government, in the first place, for Judiciary is falling under a system of 'Separation of powers' which is in place, is?;
That way, Election, as a mechanism. as such, is allowing 'some so called majority of votes', a party gets in an election, is allowed to rule over the state; when individual Fundamental Rights are sacrosanct, in any robust Socialistic Democratic System.
Obviously meaning, 'minority' of voters is 'obviously trashed', is the meaning of any so called Electoral System.
Again, CJI Mr. YK. Sabharwal bench in L H Coelho v ST of TN (2007) erroneously allowed first 13 statutes to continue to be under very Sch.IX of the first constitutional amendment, in terms of Golaknath v ST of Punjab judgement - while in fact all statues under Sch IX obviously ultra vires the Constitution of India.
Any way, such kind of accommodations by Judiciary only causing some trashing of the very constitution of India, after all Constitution is not based on only Logic but sound reasoning doctrines, so if you fail to properly reason as judges, well you fall into the canyons of political democracies of so called 'majority rule' that majority obviously trash the poor ordinary man on the street while constitution is for 'have nots' only.
Democracy is not for 'haves' but only for the 'have nots' that way 'have nots' fought for several centuries for their individual rights, but if you use the fundamental rights for some collectives, you obviously misread deliberately the very basic tenets of the Indian Constitution.
Constitution ought to be interpreted in favor of individual only, that such interpretation is robust constitutional interpretation.