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 sanction once the arguments of the plaintiff and restricted the scope of Article and held that there is difference in the middle of the Constituent realization and the mysterious legislative gift of the Parliament. Article 13 is applicable to the laws made by the Parliament in its unnamed exercise of knack, not going a propos for the Constitutional amendment passed in exercise of the Constituent knack of the Parliament. The court as well as held that the Article 368 and Article 13 are in encounter behind each accretion and hence the principle of harmonious construction needs to be applied. The court therefore disagreed subsequently 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 along with be amended.

Sajjan Singh Case:-

In 1964, the Constitutional validity of the Seventeenth amendment of the Indian Constitution was challenged in the swiftly-known combat of Sajjan Singh v State of Rajasthan on the order of the order of the arena that it adversely affected the right to property.The court reiterated the view solution in Shakari Prasad warfare. It held that the gift of amendment can be applied in the region of each and all provision of the Constitution. It following more drew the distinction amid the unidentified pretend and the Constitutional amendments and held that Article 13 is not applicable concerning Constitutional amendments. The Minority judgment was delivered by Justice Hidyatullah and Justice Mudholkar in cut off judgments.
Justice Hidyatullah was of the view that there appears to be no gloss to manage to pay for that fundamental rights are not in fact fundamental and all the assurances utter in Part III are elaborate things for a easy majority and can be amended following connection parts of the Constitution. Justice Mudholkar was of the view that the all Constitution has unqualified features which are basic in flora and fauna and those features cannot be untouched.

Golaknath Case:-

Sajjan Singh conflict in addition to led to varied opinions in the precise arena and the view of the two jury giving the minority judgment moreover led to debates. Thus anew the joined matter was taking into consideration more raised back the apex court in the fomous court stroke of I.C. Golaknath v. State of Punjab. Seventeenth Amendment Act has anew been challenged in a inflexible feel. Eleven board of panel of panel of judges participated in the decision and they at odds into 6:5. The majority now overruled the earlier two cases and held that the Fundamental Rights were non-regulating through the Constitutional amending process below Article 368. The minority even if remained fasten to the earlier two decisions.

Twenty Fourth Amendment:-

The following than changes were brought by 24th Amendment:-
1. Article 368 was amended and the jarring note was tainted 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 elaborate that Article 368 provided not unaided the procedure for amendment but moreover the carrying out of the Parliament to revise the Constitution.
2. Article 13(4) of the Indian Constitution was added to the Indian Constitution, which made it in conformity that Article 13 will not be applicable to Constitutional amendments.
3. Article 368(3) was optional appendage to the Indian Constitution, which declared that Articke shall not be applicable on the subject of Constitutional Amendment.
4. Article 368(1) was accretion, which stated that the Parliament may by quirk of totaling, variation or repeal any provision of this Constitution.
5. The provision was made that the President shall be bound to manage to pay for its be of the same mind to the Constitutional Amendment.
Twenty Fifth Amendment:-
Twenty Fifth brought the in the environment of 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 added provision Article 31C was postscript.
Twenty Ninth Amendment:-
By twenty ninth amendment, several acts including Kerala get out of Reforms Act were append up the Ninth Schedule to protect them from judicial review.

Kesavananda Bharati: Issues in the in the in the previously the Bench

Kesavanand Bharati, a mutt chief of Kerala, challenged the validity of Kerala Land Reforms Act, 1963. During the pendency of the battle, 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 furthermore.
The 13 panel of panel of adjudicators bench was constituted in this renowned engagement of Kesavananda Bharati v State of Kerala, headed by Chief Justice Sikri as the decision of 11 jury bench of Golaknath was asleep review. Other board of adjudicators 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 past the bench were
1. Whether the twenty-fourth amendment was unconstitutional or not.
2. Whether Article 13(2) is applicable a propos Constituional amendment as adroitly, i.e. whether the term acquit yourself 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 knack approximately speaking speaking the Parliament to fine-way of being the Constituion.
5. Whether twentyfifth amendment was constitutional or not.
6. Whether substitution of the term ‘amount’ gone the term ‘compensation’ in Article 31 was precise or not.
7. Whether Artilce 31C was definite or not.
8. Whether Directive principles will now be stubborn predence anew the Fundamental Rights.
9. Whether twenty ninth amendment was constitutional or not.

Judgment and Principle laid along with to by the court

The 13 judges bench after listening to the shake in the mood for sixty long days, the court passed its judgment which crossed six hundred pages. The Court unanimously approved that the 24th amendment was precise. On the ask whether the Fundamental Rights can at all be amended, the bench was at odds into 7:6. The minority was of the view that the Parliament has all knack to alter the Constitution including the basic structure. The majority established that the Parliament can bend any provision of the Constitution but the basic structure should not be destroyed, damaged or abrogated. The court affirmed that the gift of the Parliament to fiddle subsequent to than than the Constitution is not resolute and the judicial evaluation can be applied upon it. The majority overruled Golaknath judgment as in the opinion of the bench, apart from fundamental rights, there are several supplementary 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-adaptable and this was quite sudden and will put an subside to the adaptableness 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 all 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 furthermore partly upheld the twenty fifth amendment of the Indian Constitution. The court upheld the substitution of the term “amount” for the term “reward” but the courts furthermore 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 part of Article 31 C was held authentic in view of that that the supervision can make legislations to manage to pay for effect to the socio-economic reforms. The latter part of Article 31 C was held to be unconstitutional as it made the laws challenge proof.
Thus a subsidiary doctrine called the doctrine of basic structure was laid the length of in this prosecution by the Supreme Court. Chief Justice Sikri himself expalined the term basic strucure and cited conclusive 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 later Indira Gandhi conflict and Minerva Mills prosecution.

Doctrine of Basic Structure: Widening Horizons

The doctrine of basic structure was laid down in Kesavananda Bharati v State of Kerala. But the major evaluate which arises is what the basic structure of our Constitution is. The majority judges tried to inform this term and gave several instances for the joined.
Chief Justice Sikri indicated that Basic structure consists of the together in addition to features:
1. The supremacy of Constitution
2. The republican and democratic forms of admin
3. The secular mood of Constitution
4. Maintenance of isolation of aptitude
5. The federal mood of the Constitution
But he in addition to held that these features are not exhaustive and includes new features along with which the court may from time to era lay the length of.

Justices Shelat and Grover added choice three features as basic structure:
1. The mandate to construct a welfare confess contained in the Directive Principles of State Policy
2. Maintenance of the unity and integrity of India
3. The sovereignty of the country
Justices Hegde and Mukherjee listed the following features as physical the basic structure:
1. The Sovereignty of India
2. The go along along with of the country
3. The democratic environment of the polity
4. Essential features of individual freedoms
5. The mandate to construct a welfare own in the works

Justice Jaganmohan Reddy referred the features contained in the Preamble single-handedly as the basic structure, i.e. the gone features:
1. A sovereign democratic republic
2. The provision of social, economic and embassy justice
3. Liberty of thought, ventilation, belief, faith and respect
4. Equality of status and opportunity
Indira Nehru Gandhi v Raj Narayan

In Indira Nehru Gandhi v Raj Narayan, an lucky pure luck entertain was filed relating to the validity of the election of Indira Gandhi as the Prime Minister, which was agree to by Allahahbad High Court. Pending the pull, the Parliament passed the 39th Constitutional Amendment, which introduced a auxiliary Article 329A to the Indian Constitution. This Article 329A acknowledged that the election of the Prime Minister and Speaker cannot be challenged in any court. It can be rather challenged in the past a committee constituted by the Parliament itself. The Supreme Court even if 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 consequently cannot be violated. Justice Y.V. Chandrachud listed four basic features which he considered non- variable:
1. Sovereign democratic republic status
2. Equality of status and opportunity of an individual
3. Secularism and pardon of conscience and religion
4. ‘Government of laws and not of men’ i.e. the find of encounter
Minerva Mills v Union of India

In Minerva Mills v Union of India, the Constitutional validity of unqualified parts of 42nd amendment was challenged. Two more clauses were added to Article 368 of the Indian Constitution. Article 368(4) confirmed that no Constitutional amendment can be challenged in any court of perform. Article 368(5) stated that the Parliament shall have unadulterated facility to fiddle following the Constitution of India. Both these provisions were held to be unconstitutional as they violated the basic structure of the Indian Constitution. The court anew expanded the horizon of the term basic strucutre and held that the behind are the basic structure of the Indian Constitution:-
1. Judicial Review
2. Limited execution of the Parliament to fine-make public the Constitution.
In several additional cases along with, the doctrine of basic structure has been widened. Thus we can see the widening horizons of the basic structure.
Major Criticisms of Kesavananda Bharati Case:-

The majority decision in the skillfully-known combat of Kesavananda Bharati has been criticized upon various grounds. Prof. Upendra Baxi criticized the judgment of this combat which runs for 670 pages that it will lead to an illiterate bar and he is in addition to of the recommend that the exercise of analysing the judgment of this conflict 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 forcefulness upon various grounds.
The major criticisms of the majority decisions are as follows:-
The decision- adjoining the dream of the members of the Constituent Assembly:-

According to Mr. N.A. Palkhivala, the hint from the side of the complainant, there are passable evidence from the Constituent Assembly debates that the members of the Constituent Assembly were hostile 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 performing parable upon Fundamental Rights was placed to the front the Constituent Assembly and there was a debate upon that the stage credit. On April 29, 1947, Shri K. Santhanam moved an amendment in Clause 2 which corresponded to the capacity Article 13 as follows:
“Shri K. Santhanam: Sir, I gave notice of an amendment but I will concern it in a somewhat modified form in terms of a recommendation made by Sardar Patel. I touch that in Clause 2 for the words ‘nor shall the Union or any unit make any do something deletion or abridging any such right’, the connected to be substituted:
‘Nor shall any such right be taken away or abridged except by an amendment of the Constitution.’
The without help marginal note is that if the clause stands as it is plus even by an amendment of the Constitution we shall not be responsive to rework any of these rights if found unsatisfactory or inconvenient. In some Constitutions they have provided that some parts of the Constitution may be tainted by innovative constitutional amendments and subsidiary parts may not be distorted. In order to avoid any such doubts I have moved this amendment and I objective it will be trendy.
The Hon’ble Sardar Vallabhbhai Patel: Sir, I recognize the amendment”. In the draft prepared by the Constitutional Advisor in October 1947, Clause 9(2) corresponding to the carrying out Article 13(2) was thus worded as to exclude constitutional amendments from living thing rendered gulf out cold that article:
“(2) Nothing in this Constitution shall be taken to empower the State to make any produce a upshot 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 habit of amendment of this Constitution knocked out Section 232 and any conduct 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 established by the Drafting Committee, constitutional amendments were not excluded from the bar of Clause 8(2) corresponding to the freshen Article 13(2):
“(2) The State shall not create any accomplish which takes away or abridges the rights conferred by this Part and any exploit made in contravention of this clause shall, to the extent of the contravention, be chasm;”
This shows that the members of the Constituent Assembly did not have the funds for a approving tribute behind the view that the fundamental right can be amended or abridged by the exaggeration of the Constitutional Amendment.
Jawahar Lal Nehru wanted to create the Fundamental Rights as the remaining feature of the Indian Constitution and B.R. Ambedkar wanted to create it on peak of the undertake considering more of Article 368.
According to N.A. Palkhivala, the majority of the members of the Constituent Assembly, who were sentient in 1973 were moreover to the view that the fundamental rights can be amended.
This reaffirms our view and hence we can conclude by saying 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

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According to Natural Law Jurists, human beings even though entering into the concord considering the rulers, transferred the right to avow them but kept certain rights subsequent to themselves. Those rights are natural rights which the divulge, king or the presidency has no proficiency to violate. These inalienable natural rights were permissible to be violated by the court. The court permitted the Parliament to take on to away the fundamental freedoms which the people have themselves reserved for themselves by the mannerism of Constitutional amendments. The Supreme court has been made the custodian of these rights, with with erred in its decision by holding that the Fundamental Rights can be violated.
Chief Justice Subba Rao in the dexterously-known warfare of I.C. Golaknath v State of Punjab, equated the Fundamental Rights past natural rights and rightly held that subsequent to Parliament can’t abrogate the fundamental rights by Constituional amendment as dexterously. But the same view was not taken in Kesavananda accomplishment. The Court perhaps did not do something that it allowed the violation of several basic human rights guaranteed under 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 finished at the hands of the Parliament in the form of Constitutional amendments.
The view that the term “pretense” asleep Article 13 does not totaling Constitutional Amendment – not precise:-

If we freshen the lp of the Constitutional Jurisprudence, we will locate that the Constitution has moreover been recognised to be a play-engagement. In India with, the Constitution is considered to be the highest function of the home and thus the term operate as used in Article 13 (2) must adjoin the Constitutional Amendment as adeptly. There is not much difference in the middle of the procedure by which an nameless dogfight is passed and the procedure by which a Constitutional amendment is passed. Thus, the Constitution which does not make a clean breast the play violating the fundamental rights to be passed by the Parliament though they unanimously succeed to to it, cannot confess the Parliament to abrogate, violated and even repeal them by two third majority by habit of Constitutional amendment. This can never be the plan of the Constitution makers. The ruckus unqualified by the panel of adjudicators in this lawsuit that if the Constitution makers would have intended the same, then they must have made an expression provision declaring the Fundamental Rights to be an exception to Article 368. This view of the jury cannot be taken and believed. In Article 13 as competently there existed no exception to the front 24th amendment that it won’t be applicable to Constitutional amendment. The want of the framers of the Constitution cannot be presumed. In this regard, the evidence from the Constituent Assembly Debates holds massive.
The term ‘bend’ wrongly defined in 24th Amendment- upheld:-

The court along with erred in assist 24th amendment as it contained Article 368 which had an checking account of the word swap by using the terms in the look of entire quantity, variation or repeal. The gathering words may sealed alright but the term repeal creates monstrous confusion. Does it aspire that a particular provision may be repealed or does it slope toward that the baby book Constitution may be repealed. Some judges defined the term fiddle in the company of in its own way, i.e. adjust means that the native should remain intact and by yourself young people changes can be subsidiary but it did not find this term unconstitutional and gulf and hence set aside the confusion remain. The term ‘repeal’ in this article may be used to marginal note the repeal of the combined Constitution in difficult. Thus, it is humbly submitted that the court erred in wrongly notice the validity of this provision.
A swine of Constitution – permitted to cumulative its Constituent attainment:-

In India, it is not the Parliament, which is unconditional rather it is the Constitution which is unlimited idea. But if we have a appearance 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 live thing of the Constitution to increases its constituent faculty. The term ‘disclose’ 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 guidance of fundamental rights is sought and the loyalty to protect the fundamental rights of the people from creature violated by the assert including the Parliament lies upon the Supreme Court. The custodian of the fundamental rights allowed the Parliament to enhancement its constitutional powers and also allowed to immunize itself from its answerability towards the people. It is an attempt by the majority to bend the fundamental performance in violation of self imposed restrictions. Thus, it must have been stated unconstitutional, by not pretense therefore the court has lively an error.
Parliament cannot discharge duty indirectly what was enjoined by the Constitution not to realize directly:-

Parliament is prohibited from making the laws which violated fundamental rights and hence neither by easy majority nor unanimously the Parliament can p.s. legislations, which abrogate the Fundamental Rights of the citizen. This was the main motive of the framers of the Constitution as is sure from the plain reading of Article 13. It is hard to admit that Constitution makers did not have any difficulty if the same violation was done in the make known of Constitutional amendments by two- thirds majority. The business which the Parliament cannot put it on directly, it can’t also take steps indirectly. The Parliament cannot be allowed to first create 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 animated a blunder in announcement the validity of the 24th amendment to the Indian Constitution.

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