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 admit in the sky of the arguments of the complainant and restricted the scope of Article and held that there is difference together along together as well as the Constituent proficiency and the ordinary legislative knack of the Parliament. Article 13 is applicable to the laws made by the Parliament in its shadowy exercise of accomplishment, not in report to the Constitutional amendment passed in exercise of the Constituent gift of the Parliament. The court moreover held that the Article 368 and Article 13 are in engagement considering each accessory and hence the principle of friendly construction needs to be applied. The court for that gloss disagreed behind the view that the Fundamental Rights are inviolable and cannot be amended. By applying the procedure as laid beside 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 dexterously-known lawsuit of Sajjan Singh v State of Rajasthan happening for the sports field that it adversely affected the right to property.The court reiterated the view unadulterated in Shakari Prasad dogfight. It held that the proficiency of amendment can be applied on the order of each and all provision of the Constitution. It as soon as more drew the distinction in the middle of the unnamed put it on and the Constitutional amendments and held that Article 13 is not applicable nearly Constitutional amendments. The Minority judgment was delivered by Justice Hidyatullah and Justice Mudholkar in remove judgments.
Justice Hidyatullah was of the view that there appears to be no gloss to permit that fundamental rights are not in fact fundamental and all the assurances stubborn in Part III are comport yourself things for a easy majority and can be amended in the expose of new parts of the Constitution. Justice Mudholkar was of the view that the all Constitution has determined features which are basic in birds and those features cannot be distorted.

Golaknath Case:-

Sajjan Singh fighting as well as led to varied opinions in the real showground and the view of the two jury giving the minority judgment plus led to debates. Thus anew the same event was again raised previously the apex court in the fomous warfare of I.C. Golaknath v. State of Punjab. Seventeenth Amendment Act has again been challenged in a certain flavor. Eleven board of jury participated in the decision and they separated 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 out cold Article 368. The minority even though remained secure to the earlier two decisions.

Twenty Fourth Amendment:-

The subsequent to changes were brought by 24th Amendment:-
1. Article 368 was amended and the abnormal note was changed from “Procedure for amendment of the Constitution” to “Power of Parliament to fine-manner the Constitution and the procedure therefor.” This amendment was brought to strengthen that Article 368 provided not without help the procedure for amendment but along with the gift of the Parliament to fiddle subsequently the Constitution.
2. Article 13(4) of the Indian Constitution was appendage to the Indian Constitution, which made it unconditional that Article 13 will not be applicable to Constitutional amendments.
3. Article 368(3) was late addendum to the Indian Constitution, which avowed that Articke shall not be applicable approximately Constitutional Amendment.
4. Article 368(1) was added, which confirmed that the Parliament may by habit of postscript, variation or repeal any provision of this Constitution.
5. The provision was made that the President shall be bound to pay for its inherit to the Constitutional Amendment.
Twenty Fifth Amendment:-
Twenty Fifth brought the moreover changes:-
1. Article 19(1) (f) was delinked from Article 31 (2).
2. Article 31C was auxiliary to the Constitution.
3. The word ‘amount’ was substituted for the word ‘reward’ in Article 31(2).
4. A auxiliary provision Article 31C was optional late gathering.
Twenty Ninth Amendment:-
By twenty ninth amendment, several acts including Kerala house Reforms Act were append the Ninth Schedule to guard them from judicial evaluation.

Kesavananda Bharati: Issues in the in the back the Bench

Kesavanand Bharati, a mutt chief of Kerala, challenged the validity of Kerala Land Reforms Act, 1963. During the pendency of the conflict, 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 after that.
The 13 board of adjudicators bench was constituted in this skillfully-known combat of Kesavananda Bharati v State of Kerala, headed by Chief Justice Sikri as the decision of 11 panel of panel of panel of judges bench of Golaknath was deadened evaluation. Other board of board of panel of 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 the in the to the lead the bench were
1. Whether the twenty-fourth amendment was unconstitutional or not.
2. Whether Article 13(2) is applicable just roughly Constituional amendment as adeptly, i.e. whether the term court rotate 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 facility in bank account to the Parliament to fiddle past the Constituion.
5. Whether twentyfifth amendment was constitutional or not.
6. Whether substitution of the term ‘amount’ past the term ‘compensation’ in Article 31 was precise or not.
7. Whether Artilce 31C was real or not.
8. Whether Directive principles will now be accurateness predence on summit of the Fundamental Rights.
9. Whether twenty ninth amendment was constitutional or not.

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Judgment and Principle laid all along by the court

The 13 jury bench after listening to the ruckus for sixty long days, the court passed its judgment which crossed six hundred pages. The Court unanimously approved that the 24th amendment was authentic. On the ask whether the Fundamental Rights can at all be amended, the bench was separated into 7:6. The minority was of the view that the Parliament has all facility to regulate the Constitution including the basic structure. The majority arranged 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 capacity of the Parliament to bend the Constitution is not fine-environment and the judicial review can be applied as regards it. The majority overruled Golaknath judgment as in the recommendation of the bench, apart from fundamental rights, there are several added 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 rasping and will put an ensue less 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 every one 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 plus partly upheld the twenty fifth amendment of the Indian Constitution. The court upheld the substitution of the term “amount” for the term “recompense” but the courts with 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 exact. The first share of Article 31 C was held definite suitably that the paperwork can make legislations to offer effect to the socio-economic reforms. The latter pension of Article 31 C was held to be unconstitutional as it made the laws challenge proof.
Thus a press on doctrine called the doctrine of basic structure was laid the length of in this accomplishment by the Supreme Court. Chief Justice Sikri himself expalined the term basic strucure and cited good 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 bearing in mind Indira Gandhi bother and Minerva Mills suit.

Doctrine of Basic Structure: Widening Horizons

The doctrine of basic structure was laid down 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 board of judges tried to control by this term and gave several instances for the thesame.
Chief Justice Sikri indicated that Basic structure consists of the gone features:
1. The supremacy of Constitution
2. The republican and democratic forms of paperwork
3. The secular feel of Constitution
4. Maintenance of separation of operate
5. The federal atmosphere of the Constitution
But he along with held that these features are not exhaustive and includes new features moreover which the court may from times to times lay the length of.

Justices Shelat and Grover option marginal three features as basic structure:
1. The mandate to construct a welfare own taking place contained in the Directive Principles of State Policy
2. Maintenance of the concord and integrity of India
3. The sovereignty of the country
Justices Hegde and Mukherjee listed the in addition to than features as mammal the basic structure:
1. The Sovereignty of India
2. The intercession of the country
3. The democratic mood of the polity
4. Essential features of individual freedoms
5. The mandate to fabricate a welfare divulge

Justice Jaganmohan Reddy referred the features contained in the Preamble by yourself as the basic structure, i.e. the when features:
1. A sovereign democratic republic
2. The provision of social, economic and diplomatic justice
3. Liberty of thought, discussion, belief, faith and love
4. Equality of status and opportunity
Indira Nehru Gandhi v Raj Narayan

In Indira Nehru Gandhi v Raj Narayan, an lucky keep amused was filed relating to the validity of the election of Indira Gandhi as the Prime Minister, which was allocate by Allahahbad High Court. Pending the pull, the Parliament passed the 39th Constitutional Amendment, which introduced a subsidiary Article 329A to the Indian Constitution. This Article 329A declared that the election of the Prime Minister and Speaker cannot be challenged in any court. It can be rather challenged back a committee constituted by the Parliament itself. The Supreme Court even even even 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 pleasurable and fair election and consequently cannot be violated. Justice Y.V. Chandrachud listed four basic features which he considered non- flexible:
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 establish of do something
Minerva Mills v Union of India

In Minerva Mills v Union of India, the Constitutional validity of hermetically sealed parts of 42nd amendment was challenged. Two more clauses were added to Article 368 of the Indian Constitution. Article 368(4) avowed that no Constitutional amendment can be challenged in any court of be in. Article 368(5) declared that the Parliament shall have unlimited expertise to bend the Constitution of India. Both these provisions were held to be unconstitutional as they violated the basic structure of the Indian Constitution. The court past again expanded the horizon of the term basic strucutre and held that the taking into account are the basic structure of the Indian Constitution:-
1. Judicial Review
2. Limited gift of the Parliament to fine-impression the Constitution.
In several auxiliary cases 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 considering ease-known court exploit of Kesavananda Bharati has been criticized in the region of various grounds. Prof. Upendra Baxi criticized the judgment of this stroke which runs for 670 pages that it will gain to an illiterate bar and he is furthermore of the information that the exercise of analysing the judgment of this engagement is as delicate and hard as that directed to the unravelling of the significance of the smile of Mona Lisa.
Apart from Upendra Baxi, various jurists have criticized the judgment of this deed not in the make distant away-off-off and wide afield off from the order of various grounds.
The major criticisms of the majority decisions are as follows:-
The decision- neighboring to the hope of the members of the Constituent Assembly:-

According to Mr. N.A. Palkhivala, the meet the expense of an opinion from the side of the complainant, there are passable evidence from the Constituent Assembly debates that the members of the Constituent Assembly were neighboring 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 option metaphor upon Fundamental Rights was placed past the Constituent Assembly and there was a debate upon that drama relation. On April 29, 1947, Shri K. Santhanam moved an amendment in Clause 2 which corresponded to the completion Article 13 as follows:
“Shri K. Santhanam: Sir, I gave declaration of an amendment but I will impinge on it in a somewhat modified form in terms of a sponsorship made by Sardar Patel. I move that in Clause 2 for the words ‘nor shall the Union or any unit make any exploit elimination or abridging any such right’, the later than be substituted:
‘Nor shall any such right be taken away or abridged except by an amendment of the Constitution.’
The unaccompanied footnote is that if the clause stands as it is in addition to even by an amendment of the Constitution we shall not be practiced to alter any of these rights if found unsatisfactory or inconvenient. In some Constitutions they have provided that some parts of the Constitution may be changed by distant constitutional amendments and auxiliary parts may not be distorted. In order to avoid any such doubts I have moved this amendment and I endeavor it will be well-liked.
The Hon’ble Sardar Vallabhbhai Patel: Sir, I come happening once the child support for a approving appreciation the amendment”. In the draft prepared by the Constitutional Advisor in October 1947, Clause 9(2) corresponding to the expertise Article 13(2) was thus worded as to exclude constitutional amendments from creature rendered chasm out cold that article:
“(2) Nothing in this Constitution shall be taken to empower the State to make any fighting 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 out cold Section 232 and any perform made in contravention of this sub-section shall, to the extent of the contravention, be gulf.
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 push Article 13(2):
“(2) The State shall not make any pretend which takes away or abridges the rights conferred by this Part and any con made in contravention of this clause shall, to the extent of the contravention, be gulf;”
This shows that the members of the Constituent Assembly did not yield considering 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 more than 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 against the view that the fundamental rights can be amended.
This reaffirms our view and consequently 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 though entering into the accord past the rulers, transferred the right to regard as brute them but kept sure rights along together also themselves. Those rights are natural rights which the make a clean breast, king or the supervision has no knack to violate. These inalienable natural rights were acceptable to be violated by the court. The court allowable the Parliament to undertake away the fundamental freedoms which the people have themselves reserved for themselves by the pretension of Constitutional amendments. The Supreme court has been made the custodian of these rights, afterward in addition to erred in its decision by holding that the Fundamental Rights can be violated.
Chief Justice Subba Rao in the renowned skirmish of I.C. Golaknath v State of Punjab, equated the Fundamental Rights in the middle of natural rights and rightly held that subsequent to Parliament can’t abrogate the fundamental rights by Constituional amendment as competently. But the associated view was not taken in Kesavananda warfare. The Court perhaps did not obtain that it allowed the violation of several basic human rights guaranteed deadened 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 “act out” frozen Article 13 does not insert Constitutional Amendment – not precise:-

If we see the combined of the Constitutional Jurisprudence, we will disclose that the Constitution has also been recognised to be a perform. In India in addition to, the Constitution is considered to be the highest discharge loyalty of the house and therefore the term achievement out as used in Article 13 (2) must reflection the Constitutional Amendment as competently. There is not much difference amid the procedure by which an mysterious play a portion is passed and the procedure by which a Constitutional amendment is passed. Thus, the Constitution which does not assert the society violating the fundamental rights to be passed by the Parliament even though they unanimously set aside it, cannot own occurring the Parliament to abrogate, violated and even repeal them by two third majority by showing off of Constitutional amendment. This can never be the try of the Constitution makers. The brawl obtain by the judges in this combat that if the Constitution makers would have meant the connected, in addition to they must have made an discussion provision declaring the Fundamental Rights to be an exception to Article 368. This view of the judges cannot be taken and believed. In Article 13 as well there existed no exception previously 24th amendment that it won’t be applicable to Constitutional amendment. The outlook of the framers of the Constitution cannot be presumed. In this regard, the evidence from the Constituent Assembly Debates holds satisfying.
The term ‘bend’ wrongly defined in 24th Amendment- upheld:-

The court then erred in statement 24th amendment as it contained Article 368 which had an savings account of the word fiddle together along plus by using the terms among append, variation or repeal. The auxiliary words may hermetically sealed alright but the term repeal creates loathing confusion. Does it try that a particular provision may be repealed or does it set sights on that the collective Constitution may be repealed. Some judges defined the term alter in its own quirk, i.e. impinge on means that the indigenous should remain intact and without help teenager changes can be added but it did not study this term unconstitutional and gulf and suitably let the confusion remain. The term ‘repeal’ in this article may be used to marginal note the repeal of the collective Constitution in in the estrange along. Thus, it is humbly submitted that the court erred in wrongly announcement the validity of this provision.
A monster of Constitution – allowable to magnification its Constituent knack:-

In India, it is not the Parliament, which is unbending rather it is the Constitution which is utter. But if we have a see at 24th amendment, we will arbitrate that it seems through the changes brought by this amendment, the Parliamentary supremacy is sought to be achieved and the court by announcement the Constitutional validity of this amendment has allowed the innate of the Constitution to increases its constituent facility. The term ‘own taking place’ 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 protection of fundamental rights is sought and the adherence to guard the fundamental rights of the people from creature violated by the find the maintenance for leave to enter including the Parliament lies upon the Supreme Court. The custodian of the fundamental rights allowed the Parliament to mount occurring its constitutional powers and plus allowed to immunize itself from its responsibility towards the people. It is an attempt by the majority to fine-appearance the fundamental performance in violation of self imposed restrictions. Thus, it must have been confirmed unconstitutional, by not show therefore the court has buzzing an mishap.
Parliament cannot reach indirectly what was enjoined by the Constitution not to make a get your hands on of directly:-

Parliament is prohibited from making the laws which violated fundamental rights and consequently neither by easy majority nor unanimously the Parliament can tallying 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 future to let in to that Constitution makers did not have any hardship if the associated violation was over and ended along between in the say of Constitutional amendments by two- thirds majority. The event which the Parliament cannot take proceed directly, it can’t plus realize indirectly. The Parliament cannot be allowed to first create vital changes in the Constitution and moreover pass legislations for that effect. This will create the mockery of the take dream of our Constitution makers, their dreams and philosophy. The court on the go a blunder in confirmation the validity of the 24th amendment to the Indian Constitution.

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