Advocate Aankhi Ghosh writes that it is time to reargue Kesavananda Bharati case and reconsider the Basic Structure doctrine. The case of Kesavananda Bharati v. State of Kerala (Kesavananda Bharati) is perhaps the most well-known constitutional decision of the. Kesavananda Bharathi is the case which saved Indian democracy; thanks to Shri Kesavananda Bharati, eminent jurist Nanabhoy Palkhivala and the seven.

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Accordingly, every kesavamanda of the Constitution was open to amendment provided the basic foundation or structure of the Constitution was not damaged or destroyed. First, the power of amending the Constitution provided for kesabananda Article was conferred not on Parliament but on the two Houses of Parliament as designated body and, therefore, the provisional Parliament was not competent to exercise that power under Article They have at least an educative value.

Save as otherwise provided in Sub-section kesafananda of Section 29any question proposed for decision by either Chamber shall be determined by a majority of votes of the Senators or Members, as the case may be, present and voting. The learned Judge held that the essential elements of the basic structure of the Constitution are reflected in its preamble and that some of the important features of the Constitution are justice, freedom of expression and equality of status and opportunity.

Kesavananda Bharati v. State of Kerala – Wikipedia

This conclusion is also reinforced by the concession of the Attorney-General and Mr. Any law in force immediately before the commencement of this Constitution The best place to begin answering these questions is the Constituent Assembly Debates. Regarding the use which can be made of the preamble in interpreting an ordinary statute, there is no doubt that kesavanqnda cannot be used jugdment modify the language if the language of the enactment is plain and clear. Her government was upset with the Kesavananda verdict, and struck back immediately with a powerful blow to the independence of the judiciary.

Meanwhile, on August 10,the 39th Amendment introduced Article A into the Constitution, placing the election of the Prime Minister and Speaker of Lok Sabha beyond judicial review. Union of India SCR at. It further provided that no person shall be appointed as, or shall remain, a member of the Judicial Service Commission, if he kesavannada Senator or a Member of Parliament. Therefore, the words “amendment of the Constitution” in spite of the width of their sweep and in spite of their amplitude, could not have the effect of empowering the Parliament to destroy or abrogate the basic structure or framework judgent the Constitution.

The fundamental rights conferred by the Constitution include right to equality before the law, Article 14prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, Article 15equality of opportunity in matters of public employment, Article 16right to freedom of speech and expression, to assemble peaceably and without arms, to form association or unions, to move freely bharqti the territory of India, to reside and settle in any part of the territory of India, to acquire, hold and dispose of property; and to practice any profession or to carry on any occupation, trade or business.

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Prem Nath Mallick [] 22 I.

I may set out here the observations of the Judicial Committee regarding McCawley’s case. In accordance with this statement, declarations were issued by the Rulers or Rajpramukhs accepting the Constitution.

I respectfully adopt the reasoning of Lord Greene in construing the expression “the amendment of the Constitution. A proposition enunciated, judgent a majority consisting of Sikri, C. Ray and Mathew, JJ. Article 32 4 further provides that “the right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted”. Section 55 1 reads:. If at all there has to be a Basic Structure, then juegment elevated status must be given to these Articles mentioned in Articlenot to make them unamendable, but to recognize their fundamental importance.

We are, however, not concerned with the interpretation of an ordinary statute. One of the inferences that can be drawn is that the Constitution-makers never contemplated, or imagined that Article 52 will be altered and there shall not be a President of India. It is this freedom from tyranny which, according to the petitioners, has been taken away by the impugned Article 31C which has been inserted by the Twenty-fifth Amendment.

He has also said that no part of a fundamental right can claim immunity from the amendatory process by being described as the essence or core of that right. The petitioner filed an application for permission to urge additional grounds and to impugn the Constitutional validity of the Kerala Land Reforms Amendment Act Kerala Act No. This judgement ruled that Article does not enable Parliament in its constituent capacity to delegate its function of amending the Constitution to another legislature or to itself in its ordinary legislative capacity.

The passage is lengthy but I may quote these sentences:.

In other words they did not contemplate a monarchy being set up in India or there being no President. Hormasji Seervai had made an argument in Kesavanan da Bharati that the power of amendment conferred upon Parliament must be coextensive with the power of judicial review conferred upon the judiciary, because otherwise the judiciary would judgnent supreme.

Kesavananda Bharati

With a premium account you get: Were not the States interested in the fundamental rights of their people? The word ‘amendment’ could not possibly embrace the right to abrogate the pivotal features and the fundamental freedoms and therefore, that part of the basic structure could not be damaged or destroyed.

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The case was a culmination of a series of cases relating to limitations to the power to amend the Indian constitution. I may here mention that while our fundamental rights and directive principles were being fashioned and approved of by the Constituent Assembly, on December 10, the General Assembly of the United Nations adopted a Universal Declaration of Human Rights. Hegde and Mukherjea, JJ. Therefore it is a desirable and a good thing for people to realise that this very fine Constitution that we have fashioned after years of labour is good so far as it goes, but as society changes, as conditions change we amend it in the proper way” quoted by Khanna, Kesavanands.

The respondents claim that Parliament can abrogate fundamental rights such as freedom of speech and expression, freedom to form associations or unions, and freedom of religion.

Palekar, H R KhannaA. Article 42 directs that the State shall make provisions for securing just and humane conditions of work and for maternity relief.

The speeches can, in my view, be relied on only in order to see if the course of the progress of a particular provision or provisions throws any light on the historical background or shows that a common understanding or agreement was arrived at between certain sections of the bharatl. It is the discussion on the latter question that is relevant to the present case.

State of Kerala and Anr. I would require stronger reason than those given in Sankari Prasad’s case to make me accept the view that Fundamental Rights were not really fundamental but were intended to be within the powers of amendment in common with kesaananda other parts of the Constitution and without the concurrence of the States.

The expression has been described as: It is in the restricted sense of making changes “here and there”, as Pandit Nehru expressed the idea, that the power of amendment is considered plenary and can reach each and every Article of the Constitution, provided its basic structure is retained intact.

The doctrine that is said to cushion democracy in our country, was ironically born in the jurisprudence of a neighboring country known for its undemocratic ideology more than anything else. In a statement circulated to members of the Assembly on July 18, Pandit Jawaharlal Nehru inter alia, observed that the Preamble was covered more or less by the Objectives Resolution which it was intended to incorporate in the final Constitution subject to some modification on account of the political changes resulting from partition.