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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Retrieved 1 December bhharati In the Bharafi statement dated May 22,it was again reiterated as follows: The same implied limitation on the Legislature, in the field of delegation, has been invoked and applied in:. And may I, Sir, also with all respect, suggest to you and to the House that, when the time comes for the passing bhadati this Resolution let it be not done in the formal way by the raising of hands, but much more solemnly, by all of us standing up and thus taking this pledge anew.
It is this proposition that will be applied in testing the validity of a constitutional amendment in the future. Along with these provisions, there is also provision for judicial review in the Federal Republic. He seemed to be in agreement with the following observations of Kania, C.
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This gave birth to the basic structure doctrinewhich has been considered as the cornerstone of the Constitutional law in India. There the legislature having full power to make laws by a majority, except upon one subject that was not in question, passed a law which conflicted with one of the existing terms of the Constitution Act. In my opinion, that cannot be said because 10 out of the 13 judges have held that Parliament is not barred from amending fundamental rights.
Similarly in In re. 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. See Orient Paper Mills v.
Subsequently the words and figure “this twenty-sixth day of November ” were introduced in the last paragraph to indicate the date on which the Constitution was finally adopted by the Constituent Assembly. Both these cases were followed by bharatj Constitution bench in U.
Any amendment, according to them, should leave behind a mechanism of Government for the making, interpretation and implementation of laws. The Municipal Corporation of Delhi v. Similar language is used in Article whereby existing laws continue to be in force until “altered or repealed or keswvananda by a competent Legislature or other competent authority.
If all the basic features of the Constitution are repealed and some other provisions inconsistent with those features are incorporated, it cannot still remain the Constitution referred to in Article Seervai and the learned Attorney General. Retrieved 8 December Sri Keshavananda Bharathi Swamiji is spreading the religion and culture in equal earnest. The passage is lengthy but I may quote these sentences:.
Article 49 deals with protection of monuments and places and objects of national importance. The Advisory Committee on the rights of citizens, minorities, and tribal and excluded areas should contain full representation of the interests affected, and their function will be to report to the Union Constituent Assembly upon the list of Fundamental Rights, the clauses for the protection of minorities, and a scheme for the administration of the tribal and excluded areas, and to advise whether bharzti rights should be incorporated in the Provincial, Group, or Union Constitution.
It further provided that no person shall gharati appointed as, or shall remain, a member of the Judicial Service Commission, if he is Senator or a Member of Parliament. Retrieved 12 August Article is important.
Before referring to a recent decision of the Australian High Court, observations in certain earlier cases may be reproduced here:. Article 25 1 provides that “subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. We need only notice Article which provides that “no tax shall be levied or collected except by authority of law”.
To understand the import and utility of the judgment, it is important to focus on three aspects — the judgment itself; the socio- legal and political environment in the country before, during and after the pronouncement of this judgment; and last but most importantly, the Constituent Assembly debates, in order to understand if at all there was meant to be a Basic Structure of the Constitution.
The Privy Council has established and illustrated this in many decisions. This Court has in numerous decisions implied similar powers.
The Declaration may not be a legally binding instrument but it shows how India understood the nature of Human Rights. English words derive colour from those which surround them. There is definitely no intention expressed to make any part of the Constitution unamendable, to the extent that the topic was not even debated. In conclusion, the learned Judge held that though the power of amendment was wide, it did not comprehend the power to totally abrogate or emasculate or damage any of the fundamental rights or the essential elements of the basic structure of the Constitution or to destroy the identity of the Constitution.
I may mention that in the case of the amendments which may be made in exercise of the powers under Article 4Articlepara 7 of the Fifth Schedule, and para 21 of the Sixth Schedule, it has been expressly stated in these provisions that they shall not be deemed to be amendments of the Constitution for the purposes of Article This objective has been, to a large extent, carried out without infringing the fundamental rights.
Kesavananda Bharati judgment: The Major Minority
Subject to the retention of the basic structure or framework of the Constitution, the power of amendment is plenary and includes within itself the power to amend the various Articles of the Constitution, including those relating to fundamental rights as well as those which may be said to relate to essential features. Para 7 of Part D, Fifth Schedule, which deals with amendment of the schedule, reads:. Return to Text Article 1 reads: The majority decision has held that the basic structure of the Constitution cannot be destroyed by means of amendment.
To hold otherwise is to stray from the intention of the founding fathers.
So, there is no doubt from a perusal of these provisions that different words have been used to meet different demands. In the context of Article 13″law” must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in the exercise of constituent kfsavananda with the result that Article 13 2 does not affect amendments made under Article Select Documents II, 20 iip.