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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The case was a keesavananda of a series of cases relating to limitations to the power to amend the Indian constitution. It seems to me that the Preamble of our Constitution is of extreme importance and the Constitution should be read and interpreted in the light of the grand and noble vision expressed in the Preamble.
State of Orissa  1 Supp. H R Khanna has given in his judgment that the Parliament had kudgment power to amend the Constitution, however, since it is only a “power to amend”, the basic structure or framework of the structure should remain intact. The question, then, is one of construction and in the ultimate resort must be determined upon tht actual words bhadati, read not in vacuo but as occurring in a single complex instrument, in which one part may throw light on another.
To hold this would mean prima facie that the most solemn parts of our Constitution stand on the same footing as any other provision and even on a less bhzrati ground than one on which the articles mentioned in the proviso stand. The Constitution has been described as the federal compact, and the construction must hold a balance between all its parts”.
In order to fully appreciate the jjdgment of the Privy Council it is necessary to set out the relevant provisions of the Ceylon Independence Order in Council,judvment referred to as the Ceylon Constitution. This gave birth to the basic structure doctrinewhich has been considered as the cornerstone of the Constitutional law in India. Palkhivala that there is a distinction between the Indian Constitution Statute and the Constitution of India.
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 of the Constitution.
Kesavananda Bharati vs State Of Kerala And Anr on 24 April,
The best place to begin answering these questions is the Constituent Assembly Debates. Most of the fundamental rights will have to be retained, albeit in an attenuated form, though it would tax the ingenuity of man a little too hard to discover possible attenuation in a few instances. The Chief Justice came to the conclusion that “as a matter of construction, there is no escape from the conclusion that Article provides for the amendment of the provisions contained in Part III without imposing on Parliament an obligation to adopt the procedure prescribed by the proviso.
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Kesavananda Bharati judgment: The Major Minority
Justices KS Hegde and AK Mukherjea gave a joint judgment which, although said to be concurring with the majority, has not in fact done so in totality. Retrieved 1 December In some respects the Commonwealth was placed in a position of supremacy, as the national interest required, but it would be inconsistent with the very basis of the federation that the Commonwealth’s powers should extend to reduce the States to such a position of subordination that their very existence, or at least their capacity to function effectually as independent units, would be dependent upon the manner in which the Commonwealth exercised its powers, rather than on the legal limits of the powers themselves.
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. Seervai contends that the conclusion just mentioned was wrong and that the body that amends the Constitution under Article is not Parliament. Article makes special provisions bharafi Anglo-Indian community in certain services, and Article makes special provisions in respect of educational grants for the benefit of Anglo- Indian community.
The untold story of struggle for supremacy by Supreme Court and Parliament.
Some implications are necessary from the structure of the Constitution itself, but it is inevitable also, I should think, that these implications can only be defined by a gradual process of judicial decision” Per Starke J. They have all explicitly held that there are no inherent or implied limitations on the power of the Parliament to amend any part of the Constitution. 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 Section 7 provides that “there shall be a Parliament of the Island which shall consist of His Majesty, and two Chambers to be known respectively as the Senate and the House of Representatives. Subject to these limitations, Parliament had the right to amend any and every provision of the Constitution.
Cooray, reads the obiter dicta in Bribery Commissioner v. If the Constitution is abrogated and the country is to be governed as kdsavananda as possible under, say, the abrogated Constitution, on the strength of a martial law order, the three branches of Government are not obliterated but it is doubtful whether this would be considered a permissible amendment of the Constitution. I may mention that an attempt was made to expand the word “amend” in Article by proposing an amendment that “by way of variation, addition, or repeal” be added but the amendment was rejected.
This is borne out by the following extract from the statement of Sardar Vallabhbhai Patel in the Constituent Assembly on October 12, C. It is true that there is no complete definition of the word “law”‘ in the article but it is significant that the definition does judmgent seek to exclude Constitutional amendments which it would have been easy to indicate in the definition by adding “but shall not include an amendment of the Constitution”.
The word ‘amendment’ occurring in Article must therefore be construed in such a manner as to preserve the power of the Parliament to kesaananda the Constitution, but not so as to result in damaging or destroying the structure and identity of the Constitution.
Section 53 dealt with the setting up of the Judicial Service Commission, consisting of the Chief Justice, a Judge of the Supreme Court, and one other person who shall be, or shall have been, a Judge of the Supreme Court. While there are several crucial aspects of this case, the most prominent aspect and the one that will be discussed here is the adoption of the Basic Structure Doctrine. Return to Text Sajjan Singh v. It was then felt that it would be necessary to decide whether I.
Article enables the President by order to make exceptions and modifications in the provisions of Article to