INTRODUCTION
Imagine waking up in a world where the right to life and personal liberty guaranteed by Article 21[1] of the Indian Constitution has suddenly disappeared. No redress for custodial brutality, no legal protections against wrongful incarceration, and little privacy protection. Even though this seems gloomy, it makes us consider that our fundamental liberties could be taken away.
A legal theory known as the “Basic Structure Doctrine[2]” gives the Indian Constitution, which is frequently referred to as a “living document,” its resilience by preventing Parliament from changing its fundamental character. However, what if there were no such doctrine? This mental exercise is not only hypothetical; it serves as a sobering reminder of the need to vigorously defend rights that were previously taken for granted.
FRAGILE FOUNDATIONS: ARE RIGHTS UNTOUCHABLE?
The Basic Structure Doctrine protects the Constitution, which was established in the famous Kesavananda Bharati case [3] (1973). It ensures that no change made by Article 368[4] can damage its essential elements, such as democracy, secularism, and fundamental rights.
However, only two years later, the doctrine’s weakness was shown. The Indira Gandhi-led government passed the 42nd Amendment[5], which declared Parliament’s amending power “unlimited” and attempted to abolish judicial review during the Emergency (1975–77). In later years, the Basic Structure Doctrine was only marginally endorsed by the Supreme Court, most notably in Minerva Mills v. Union of India[6] (1980), where it declared that erasing the identity of the Constitution would “make India a tyranny.”
These incidents highlight a paradox: the Basic Structure Doctrine is in place to safeguard rights, yet institutional bravery is necessary for it to endure. As legal scholar Granville Austin noted, “The Indian Constitution is first and foremost a social document, and its resilience lies in its interpreters. [7]. Even the most solid doctrines can fall apart without an independent judiciary.
A terrifying example is the Emergency era. The administration showed how easily rights may be marginalised without constitutional safeguards by suspending habeas corpus and controlling the media. We are reminded today that the Basic Structure Doctrine is still a fight and not a guarantee by discussions surrounding legislation such as the Citizenship Amendment Act[8] (CAA) or sedition measures.
WHAT HAPPENS IF RIGHTS GET DELETED?
Dissent may become illegal suddenly if Article 19[9] is removed. Similar to the Emergency era, when newspapers were compelled to publish official propaganda, media outlets may be subject to state censorship. Recent legislation, such as the IT Rules 2021[10], which have drawn criticism for their ambiguous speech restrictions, demonstrates how quickly free speech could be undermined without constitutional protections. Journalists covering farmer protests were charged with treason in 2020, showing how authority can use legal uncertainty as a weapon.
Citizens would no longer have rights against capricious state action if Article 21 were repealed. Mass monitoring, encounter murders, and incarceration without charge or trial—all characteristics of authoritarian governments—may become commonplace. Its contemporary importance is shown by the Supreme Court’s acknowledgement of privacy as inherent to Article 21 in Justice K.S. Puttaswamy v. Union of India[11] (2017). Prolonged internet shutdowns and detentions during the 2019 Jammu and Kashmir lockdown put Article 21’s restrictions to the test.
By contesting the Kesavananda Bharati ruling in October 2022, Vice President Jagdeep Dhankhar sparked controversy by claiming that Parliament’s amendment authority is “supreme” since it represents “the people’s choice.” According to his reasoning, election majorities provide Parliament with unrestricted power to add, remove, or modify rights. This is a flawed logic because of the Tyranny of the Majority. B.R. Ambedkar warned that majorities could persecute minorities without constitutional restraints and expressly rejected total parliamentary authority (Constituent Assembly Debates, Vol. XI). As an illustration, if Parliament repealed Article 15 (which forbids caste discrimination) on the grounds of “majority will,” apartheid against Dalits and Adivasis would be approved.
Secondly, the historical precedent, the Emergency-era passage of the 42nd Amendment (1976), demonstrated how readily a brute majority may declare itself omnipotent. Later, in Minerva Mills (1980), the Supreme Court overturned it, reiterating that the whole Constitution, rather than just ephemeral legislative majorities, is how “people’s will” is conveyed. The vice president’s position conflates constitutional authority with democratic legitimacy. The fundamental tenet of Kesavananda Bharati is that, even if Parliament speaks for the people, it cannot destroy the system that underpins democracy. In 2022, Justice Chandrachud observed that the Basic Structure Doctrine does not undermine democracy. It keeps democracy from collapsing on its own.
It might recover legal justification without Articles 15[12] and 17[13] based on caste discrimination. We are reminded that social development depends on constitutional responsibility by the horrifying 2016 Una flogging event, in which Dalit men were publicly beaten for skinning a cow[14]. Gender equality would also be negatively impacted; important rulings such as Shayara Bano v. Union of India[15] (2017), which prohibited immediate triple talaq, depend on the anti-discrimination mandate of Article 15.
WHO HOLDS THE POWER TO DELETE?
According to Article 368[16] of the Constitution, Parliament has the primary authority to change or eliminate fundamental rights theoretically. This power is not unqualified, though. According to Minerva Mills v. Union of India (1980), the judiciary, as the protector of the Constitution, has the authority to invalidate modifications that contravene its Basic Structure.
However, the rise of majoritarian politics and executive overreach has tested this balance. The 2020 Farm Laws[17], for instance, were initially enacted as ordinances without parliamentary discussion or public scrutiny, which sparked concerns about democratic accountability. Likewise, the extensive implementation of laws about preventive detention, such as the Unlawful Activities Prevention Act[18] (UAPA), demonstrates how executive authority can violate the rights protected by Articles 21 and 19.
Around the world, countries like Hungary serve as examples of how constitutional protections can be undermined when a powerful executive and obedient legislature work together. The dangers India would face without strict checks and balances are reflected in Prime Minister Viktor Orbán’s consolidation of power, which includes judicial measures to quell dissent.
Even the judiciary is subject to pressure. Hearing delays on crucial issues, such as challenges to the Citizenship Amendment Act (CAA), might indirectly enable human rights violations by preserving legal ambiguity. Former Supreme Court justice Madan Lokur said that democracy is a shared duty. When institutions fail, people’s rights become negotiable.
WHY THIS THOUGHT EXPERIMENT MATTERS
Fundamental rights are innate entitlements that are part of human dignity rather than advantages bestowed by the state. According to philosophers like Hannah Arendt, rights devoid of legal protection become “stateless” when governments ignore them. This exercise forces us to confront a depressing fact: rights are only at the mercy of the powerful in the absence of fundamental protections.
B.R. Ambedkar, member of the drafting committee of the Indian Constitution, believed that fundamental rights protected from social oppression. He famously warned, “Rights are not supposed to be a plaything of the majority.”
By envisioning a society in which rights are “deleted,” we acknowledge their function in keeping India’s patriarchal, casteist, and colonial past from reviving.
Sobering lessons can be learned from history. The suspension of press freedom and habeas corpus during the 1975–77 Emergency showed how quickly rights may be undermined when institutions fail. Around the world, governments like Maduro’s Venezuela and Putin’s Russia show how constitutional deterioration creates the conditions for authoritarianism. This is a call to awareness, not an intellectual experiment.
CONCLUSION
The thought experiment of a constitutional “delete” button is not just a rhetorical exercise; it’s a mirror held to democracy’s vulnerabilities. The Constitution protects fundamental rights, but they are jeopardised when institutions fail or majorities grow complacent. Our last line of defence against tyranny is still the Basic Structure Doctrine, which was established by Kesavananda Bharati in 1973 and maintained in Minerva Mills in 1980. However, as seen during the emergency era, this theory cannot protect rights without public awareness.
Instead of dying in obscurity, democracies erode gradually—a privacy right is disregarded here, a sedition statute is abused there. The pattern is evident everywhere, from Myanmar’s coup to Hungary’s democratic reversal: rights disappear when people no longer view them as unassailable. More than ever, B.R. Ambedkar’s caution is relevant: “Constitutional morality is not a natural sentiment.” It needs to be nurtured.
The “delete” button on the Constitution only exists because we permit it. Demanding accountability, challenging authority, and keeping Justice D.Y. Chandrachud’s statement that “a Constitution is not a relic” in mind are all necessary to protect democracy. Through its citizens, it breathes. So, if rights can be deleted, democracy can be too.
Author(s) Name: Pratishtha Singh (Dr. Ram Manohar Lohiya National Law University, Lucknow)
References:
[1] Constitution of India 1950, art 21
[2] Kesavananda Bharati v State of Kerala AIR 1973 SC 1461; (1973) 4 SCC 225.
[3] Kesavananda Bharati v State of Kerala AIR 1973 SC 1461.
[4] Constitution of India 1950, art 368
[5] Constitution (Forty-second Amendment) Act 1976 (India), assented to on 18 December 1976, published in the Gazette of India, Extraordinary, Part II, Section 1
[6] Minerva Mills Ltd v Union of India AIR 1980 SC 1789; (1980) 3 SCC 625.
[7] Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford University Press 1966)
[8] Citizenship (Amendment) Act 2019 (India), Act No. 47 of 2019, assented to on 12 December 2019, published in the Gazette of India, Extraordinary, Part II, Section 1, dated 12 December 2019
[9] Constitution of India 1950, art 19
[10] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, GSR 139(E), notified in the Gazette of India, Extraordinary, Part II, Section 3(i), dated 25 February 2021.
[11] Justice K.S. Puttaswamy (Retd.) & Anr. v Union of India & Ors. (2017) 10 SCC 1; AIR 2017 SC 4161.
[12] Constitution of India 1950, art 15
[13] Constitution of India 1950, art 17
[14] BBC News, “India Protests Continue After Cow Protectors Assault Dalits in Gujarat” (20 July 2016) <https://www.bbc.com/news/world-asia-india-36844782> accessed 26 May 2025
[15] Shayara Bano v Union of India (2017) 9 SCC 1; AIR 2017 SC 4609.
[16] Constitution of India 1950, art 368
[17] Prachi Kaur and Suyash Tiwari, “Comparison of the 2020 Central Farm Laws with the Amendments Proposed by States” (7 December 2020) PRS India <https://prsindia.org/theprsblog/comparison-of-the-2020-central-farm-laws-with-the-amendments-proposed-by-states > accessed 26 May 2025
[18] Unlawful Activities (Prevention) Act 1967 (India), Act No. 37 of 1967, assented to on 30 December 1967, published in the Gazette of India, Extraordinary, Part II, Section 1, dated 30 December 1967
