Keshavnanda Barti Case: A Critique

Shankari Prasad Case:-

In Shankari Prasad v Union of India, the Supreme Court upheld the validity of the First amendment and held that the Fundamental Rights can be amended. The Court did not agree taking into account the arguments of the complainant and restricted the scope of Article and held that there is difference in the midst of the Constituent knack and the everyday legislative knack of the Parliament. Article 13 is applicable to the laws made by the Parliament in its nameless exercise of knack, not in report to the Constitutional amendment passed in exercise of the Constituent carrying out of the Parliament. The court in addition to held that the Article 368 and Article 13 are in skirmish when each new and as a result the principle of cordial construction needs to be applied. The court hence disagreed gone the view that the Fundamental Rights are inviolable and cannot be amended. By applying the procedure as laid the length of in Article 368 of the Indian Constitution, the Fundamental Rights can with be amended.

Sajjan Singh Case:-

In 1964, the Constitutional validity of the Seventeenth amendment of the Indian Constitution was challenged in the later than ease-known exploit of Sajjan Singh v State of Rajasthan regarding the subject of the arena that it adversely affected the right to property.The court reiterated the view resolution in Shakari Prasad conflict. It held that the faculty of amendment can be applied almost each and all provision of the Constitution. It anew drew the distinction with the unidentified play in and the Constitutional amendments and held that Article 13 is not applicable as regards Constitutional amendments. The Minority judgment was delivered by Justice Hidyatullah and Justice Mudholkar in sever judgments.
Justice Hidyatullah was of the view that there appears to be no defense to admit that fundamental rights are not in fact fundamental and all the assurances truthful in Part III are feign things for a easy majority and can be amended moreover new parts of the Constitution. Justice Mudholkar was of the view that the altogether Constitution has unmovable features which are basic in birds and those features cannot be distorted.Do you know about Wewenang Mahkamah Konstitusi

Golaknath Case:-

Sajjan Singh fighting moreover led to varied opinions in the real sports arena and the view of the two panel of jury giving the minority judgment in addition to led to debates. Thus anew the associated situation was anew raised in further the apex court in the fomous combat of I.C. Golaknath v. State of Punjab. Seventeenth Amendment Act has anew been challenged in a unmovable vent. Eleven jury participated in the decision and they estranged into 6:5. The majority now overruled the earlier two cases and held that the Fundamental Rights were non-variable through the Constitutional amending process knocked out Article 368. The minority even if remained stick to the earlier two decisions.

Twenty Fourth Amendment:-

The moreover changes were brought by 24th Amendment:-
1. Article 368 was amended and the uncharacteristic note was changed from “Procedure for amendment of the Constitution” to “Power of Parliament to have an effect on the Constitution and the procedure therefor.” This amendment was brought to enlarge on that Article 368 provided not unaccompanied the procedure for amendment but plus the facility of the Parliament to alter the Constitution.
2. Article 13(4) of the Indian Constitution was choice to the Indian Constitution, which made it determined that Article 13 will not be applicable to Constitutional amendments.
3. Article 368(3) was late accrual to the Indian Constitution, which avowed that Articke shall not be applicable re the order of Constitutional Amendment.
4. Article 368(1) was extra, which stated that the Parliament may by showing off of adjunct, variation or repeal any provision of this Constitution.
5. The provision was made that the President shall be bound to have the funds for its succeed to to the Constitutional Amendment.
Twenty Fifth Amendment:-
Twenty Fifth brought the subsequent to changes:-
1. Article 19(1) (f) was delinked from Article 31 (2).
2. Article 31C was other to the Constitution.
3. The word ‘amount’ was substituted for the word ‘compensation’ in Article 31(2).
4. A subsidiary provision Article 31C was supplementary.
Twenty Ninth Amendment:-
By twenty ninth amendment, several acts including Kerala estate Reforms Act were append the Ninth Schedule to guard them from judicial review.

Kesavananda Bharati: Issues forward the Bench

Kesavanand Bharati, a mutt chief of Kerala, challenged the validity of Kerala Land Reforms Act, 1963. During the pendency of the dispute, this Act was placed in the Ninth Schedule by 29th Amendment Act. He challenged the validity of the 29th Amendment and he was permissible to challenge the validity of the 24th and 25th Amendment moreover.
The 13 panel of judges bench was constituted in this renowned battle of Kesavananda Bharati v State of Kerala, headed by Chief Justice Sikri as the decision of 11 board of panel of board of adjudicators bench of Golaknath was below evaluation. Other jury were Justice A.N. Grover, A.N. Ray, D.G. Palekar, H.R. Khanna, J.M. Shelat, K.K. Mathew, K.S. Hegde M.H. Beg, P. Jaganmohan Reddy, S.N. Dwivedi and Y.V. Chandrachud.
The major issues in front the bench were
1. Whether the twenty-fourth amendment was unconstitutional or not.
2. Whether Article 13(2) is applicable going coarsely for Constituional amendment as dexterously, i.e. whether the term con in Article 13 includes Constitutional amendment or not.
3. Whether Fundamental Rights can be amended or not.
4. Whether Article 368 as it originally was conferred expertise harshly the Parliament to fine-appearance the Constituion.
5. Whether twentyfifth amendment was constitutional or not.
6. Whether substitution of the term ‘amount’ considering the term ‘compensation’ in Article 31 was precise or not.
7. Whether Artilce 31C was genuine or not.
8. Whether Directive principles will now be unadulterated predence higher than the Fundamental Rights.
9. Whether twenty ninth amendment was constitutional or not.

Judgment and Principle laid the length of by the court

The 13 panel of judges bench after listening to the fight for sixty long days, the court passed its judgment which crossed six hundred pages. The Court unanimously decided that the 24th amendment was definite. On the ask whether the Fundamental Rights can at altogether one be amended, the bench was estranged into 7:6. The minority was of the view that the Parliament has every single one capacity to fiddle taking into account the Constitution including the basic structure. The majority granted that the Parliament can fiddle once any provision of the Constitution but the basic structure should not be destroyed, damaged or abrogated. The court affirmed that the attainment of the Parliament to alter the Constitution is not unlimited and the judicial evaluation can be applied upon it. The majority overruled Golaknath judgment as in the permit know of the bench, apart from fundamental rights, there are several subsidiary features and provisions in the Constitution, which are more important and which should not be allowed to be violated. Golaknath made the Fundamental rights non-modifiable and this was quite uncompromising and will put an decline to the flexibility of the Constitution. Thus the fundamental rights were allowed to be amended provided it does not abrogate the basic structure of the Constitution and it was held that every fundamental rights are not included in the basic structure, specially right to property is not as such. It was held that the twenty fourth amendment made that explicit what was implicit in Article 368 earlier.
The court in addition to partly upheld the twenty fifth amendment of the Indian Constitution. The court upheld the substitution of the term “amount” for the term “compensation” but the courts in addition to held that the amount must not be arbitrary. The non- applicability of Article 19(1) (f) to Article 31(2) was held to be constitutionally real. The first portion of Article 31 C was held genuine suitably that the dispensation can make legislations to meet the expense of effect to the socio-economic reforms. The latter allocation of Article 31 C was held to be unconstitutional as it made the laws challenge proof.
Thus a secondary doctrine called the doctrine of basic structure was laid the length of in this battle by the Supreme Court. Chief Justice Sikri himself expalined the term basic strucure and cited precise instances of the basic structure of the Indian Constitution. This Doctrine of Basic structure was furhter widened by the Supreme Court in a number of cases taking into consideration Indira Gandhi stroke and Minerva Mills combat.

Doctrine of Basic Structure: Widening Horizons

The doctrine of basic structure was laid the length of in Kesavananda Bharati v State of Kerala. But the major ask which arises is what the basic structure of our Constitution is. The majority panel of adjudicators tried to explain this term and gave several instances for the same.
Chief Justice Sikri indicated that Basic structure consists of the considering features:
1. The supremacy of Constitution
2. The republican and democratic forms of doling out
3. The secular setting of Constitution
4. Maintenance of detachment of encounter a allowance
5. The federal environment of the Constitution
But he with held that these features are not exhaustive and includes add-on features furthermore which the court may from time to era lay down.

Justices Shelat and Grover influence ahead option three features as basic structure:
1. The mandate to construct a welfare assert contained in the Directive Principles of State Policy
2. Maintenance of the arrangement and integrity of India
3. The sovereignty of the country
Justices Hegde and Mukherjee listed the subsequent to features as swine the basic structure:
1. The Sovereignty of India
2. The goodwill of the country
3. The democratic setting of the polity
4. Essential features of individual freedoms
5. The mandate to produce a welfare come happening along in the midst of the portion for in

Justice Jaganmohan Reddy referred the features contained in the Preamble without help as the basic structure, i.e. the along with than features:
1. A sovereign democratic republic
2. The provision of social, economic and political justice
3. Liberty of thought, exposure, belief, faith and adulation
4. Equality of status and opportunity
Indira Nehru Gandhi v Raj Narayan

In Indira Nehru Gandhi v Raj Narayan, an glamor was filed relating to the validity of the election of Indira Gandhi as the Prime Minister, which was permit by Allahahbad High Court. Pending the magnetism, the Parliament passed the 39th Constitutional Amendment, which introduced a auxiliary Article 329A to the Indian Constitution. This Article 329A avowed that the election of the Prime Minister and Speaker cannot be challenged in any court. It can be rather challenged to the fore a committee constituted by the Parliament itself. The Supreme Court though validated the election of Indira Gandhi but avowed 39th Amendment to be unconstitutional as it violated the basic structure of the Constitution. Justice H.R. Khanna held that the democracy is the basic structure of the Constitution and it includes pardon and fair election and hence cannot be violated. Justice Y.V. Chandrachud listed four basic features which he considered non- changeable:
1. Sovereign democratic republic status
2. Equality of status and opportunity of an individual
3. Secularism and forgiveness of conscience and religion
4. ‘Government of laws and not of men’ i.e. the regard as brute of take charity
Minerva Mills v Union of India

In Minerva Mills v Union of India, the Constitutional validity of determined parts of 42nd amendment was challenged. Two more clauses were exchange on to Article 368 of the Indian Constitution. Article 368(4) avowed that no Constitutional amendment can be challenged in any court of take steps. Article 368(5) avowed that the Parliament shall have response carrying out to fine-impression the Constitution of India. Both these provisions were held to be unconstitutional as they violated the basic structure of the Indian Constitution. The court all yet again again again expanded the horizon of the term basic strucutre and held that the later are the basic structure of the Indian Constitution:-
1. Judicial Review
2. Limited skirmish of the Parliament to alter the Constitution.
In several new cases with, the doctrine of basic structure has been widened. Thus we can make public the widening horizons of the basic structure.
Major Criticisms of Kesavananda Bharati Case:-

The majority decision in the renowned skirmish of Kesavananda Bharati has been criticized upon various grounds. Prof. Upendra Baxi criticized the judgment of this skirmish which runs for 670 pages that it will lead to an illiterate bar and he is plus of the information that the exercise of analysing the judgment of this act is as delicate and hard as that directed to the unravelling of the significance of the grin of Mona Lisa.
Apart from Upendra Baxi, various jurists have criticized the judgment of this combat upon various grounds.
The major criticisms of the majority decisions are as follows:-
The decision- nearby the take dream of the members of the Constituent Assembly:-

According to Mr. N.A. Palkhivala, the opinion from the side of the complainant, there are ample evidence from the Constituent Assembly debates that the members of the Constituent Assembly were neighboring-door to the view that the Fundamental Rights can be amended. Thus the Supreme Court erred in deciding that Fundamental Rights can be amended.
On April 29, 1947, an unconventional bank account upon Fundamental Rights was placed forward the Constituent Assembly and there was a debate upon that performing arts metaphor. On April 29, 1947, Shri K. Santhanam moved an amendment in Clause 2 which corresponded to the faculty Article 13 as follows:
“Shri K. Santhanam: Sir, I gave statement of an amendment but I will move it in a somewhat modified form in terms of a information made by Sardar Patel. I encumbrance that in Clause 2 for the words ‘nor shall the Union or any unit make any produce an effect deletion or abridging any such right’, the as soon as be substituted:
‘Nor shall any such right be taken away or abridged except by an amendment of the Constitution.’
The unaccompanied reason is that if the clause stands as it is with even by an amendment of the Constitution we shall not be practiced to revise any of these rights if found unsatisfactory or inconvenient. In some Constitutions they have provided that some parts of the Constitution may be misused by higher constitutional amendments and subsidiary parts may not be untouched. In order to avoid any such doubts I have moved this amendment and I mean it will be well-liked.
The Hon’ble Sardar Vallabhbhai Patel: Sir, I succession the amendment”. In the draft prepared by the Constitutional Advisor in October 1947, Clause 9(2) corresponding to the faculty Article 13(2) was for that reason worded as to exclude constitutional amendments from beast rendered deep hole below that article:
“(2) Nothing in this Constitution shall be taken to empower the State to make any perform which curtails or takes away or which has the effect of curtailing or taking away any of the rights conferred by Chapter II of this Part except by quirk of amendment of this Constitution under Section 232 and any acquit yourself made in contravention of this sub-section shall, to the extent of the contravention, be deep hole.
But the Drafting Committee omitted the words excluding constitutional amendments, and in the draft Constitution as decided by the Drafting Committee, constitutional amendments were not excluded from the bar of Clause 8(2) corresponding to the power Article 13(2):
“(2) The State shall not make any charity which takes away or abridges the rights conferred by this Part and any take steps made in contravention of this clause shall, to the extent of the contravention, be deep hole;”
This shows that the members of the Constituent Assembly did not designate in in the by now the view that the fundamental right can be amended or abridged by the habit of the Constitutional Amendment.
Jawahar Lal Nehru wanted to make the Fundamental Rights as the enduring feature of the Indian Constitution and B.R. Ambedkar wanted to make it taking into account again the achieve of Article 368.
According to N.A. Palkhivala, the majority of the members of the Constituent Assembly, who were flesh and blood in 1973 were neighboring door to the view that the fundamental rights can be amended.
This reaffirms our view and as a result we can conclude by saw that the Supreme Court erred by declaring that the Fundamental Rights can be amended.
Permitted the violation of inalienable natural rights, fundamental freedoms and basic human rights of the people

According to Natural Law Jurists, human beings even if entering into the pure associates as soon as the rulers, transferred the right to acknowledge them but kept sure rights bearing in mind themselves. Those rights are natural rights which the disclose, king or the processing has no triumph to violate. These inalienable natural rights were permissible to be violated by the court. The court acceptable the Parliament to understand away the fundamental freedoms which the people have themselves reserved for themselves by the habit of Constitutional amendments. The Supreme court has been made the custodian of these rights, subsequently with erred in its decision by holding that the Fundamental Rights can be violated.
Chief Justice Subba Rao in the skillfully-known disagreement of I.C. Golaknath v State of Punjab, equated the Fundamental Rights when natural rights and rightly held that subsequent to Parliament can’t abrogate the fundamental rights by Constituional amendment as skillfully. But the same view was not taken in Kesavananda prosecution. The Court perhaps did not make a get sticking together of of that it allowed the violation of several basic human rights guaranteed sedated Universal Declaration of Human Rights, 1948 to which India was a signatory. Thus the Court can be said to have allowed grave injustice to be curtains at the hands of the Parliament in the form of Constitutional amendments.
The view that the term “play a allowance” knocked out Article 13 does not colleague Constitutional Amendment – not precise:-

If we way of swine the cumulative of the Constitutional Jurisprudence, we will locate that the Constitution has moreover been recognised to be a deed. In India furthermore, the Constitution is considered to be the highest undertaking of the house and as a outcome the term ham it going on as used in Article 13 (2) must dispel the Constitutional Amendment as ably. There is not much difference surrounded by the procedure by which an undistinguished operate is passed and the procedure by which a Constitutional amendment is passed. Thus, the Constitution which does not avow the proceed violating the fundamental rights to be passed by the Parliament even though they unanimously be of the same mind to it, cannot broadcast the Parliament to abrogate, violated and even repeal them by two third majority by pretentiousness of Constitutional amendment. This can never be the target of the Constitution makers. The dynamism resolution by the judges in this conflict that if the Constitution makers would have expected the thesame, later they must have made an exposure to vibes provision declaring the Fundamental Rights to be an exception to Article 368. This view of the board of jury cannot be taken and believed. In Article 13 as without complexity there existed no exception prematurely 24th amendment that it won’t be applicable to Constitutional amendment. The plan of the framers of the Constitution cannot be presumed. In this regard, the evidence from the Constituent Assembly Debates holds pleasant.
The term ‘adjust’ wrongly defined in 24th Amendment- upheld:-

The court then erred in pronouncement 24th amendment as it contained Article 368 which had an financial credit of the word regulate by using the terms taking into consideration partner in crime, variation or repeal. The subsidiary words may solid alright but the term repeal creates dismal confusion. Does it set sights on that a particular provision may be repealed or does it seek that the summative Constitution may be repealed. Some judges defined the term fiddle later than in its own habit, i.e. alter means that the indigenous should remain intact and on your own young changes can be take in benefits but it did not avow this term unconstitutional and gulf and for that reason tolerate the confusion remain. The term ‘repeal’ in this article may be used to justify the repeal of the accumulate Constitution in merged. Thus, it is humbly submitted that the court erred in wrongly notice the validity of this provision.
A brute of Constitution – permissible to ensue its Constituent execution:-

In India, it is not the Parliament, which is unlimited rather it is the Constitution which is add together. But if we have a space at 24th amendment, we will locate that it seems through the changes brought by this amendment, the Parliamentary supremacy is sought to be achieved and the court by assertion the Constitutional validity of this amendment has allowed the monster of the Constitution to increases its constituent facility. The term ‘environment’ as defined in Article 12 and as used in Article 13 of the Constitution, includes the Parliament. The Parliament is the body from which the sponsorship of fundamental rights is sought and the loyalty to guard the fundamental rights of the people from creature violated by the have enough part admission including the Parliament lies upon the Supreme Court. The custodian of the fundamental rights allowed the Parliament to tally together its constitutional powers and moreover allowed to immunize itself from its responsibility towards the people. It is an attempt by the majority to change the fundamental war out in violation of self imposed restrictions. Thus, it must have been avowed unconstitutional, by not dispel consequently the court has in force an error.
Parliament cannot realize indirectly what was enjoined by the Constitution not to get directly:-

Parliament is prohibited from making the laws which violated fundamental rights and in view of that neither by easy majority nor unanimously the Parliament can appendix legislations, which abrogate the Fundamental Rights of the citizen. This was the main motive of the framers of the Constitution as is certain from the plain reading of Article 13. It is following to authorize that Constitution makers did not have any agonized if the thesame violation was done in the proclaim of Constitutional amendments by two- thirds majority. The issue which the Parliament cannot outfit directly, it can’t also discharge adherence indirectly. The Parliament cannot be allowed to first make snappish changes in the Constitution and subsequently pass legislations for that effect. This will make the mockery of the outlook of our Constitution makers, their dreams and philosophy. The court vivacious a blunder in notice the validity of the 24th amendment to the Indian Constitution.

Leave a Comment

Your email address will not be published. Required fields are marked *