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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For the purposes of these cases, it is sufficient to say that the fundamental rights are within the reach of the amending power. The passage is lengthy but I may quote these sentences:. Sardar Patel, while moving the report for consideration on August 27,said: Although “law” must ordinarily include Constitutional law there is a clear demarcation between ordinary law which is made in the exercise of legislative power and Constitutional law, which is made in the exercise of constituent power.
He states that the power of amendment would also include bharatj itself the power to add, alter or repeal the various Articles. What should be the policy of the State, how the Society should be organised in its social and economic side are matters which must be decided by the people themselves according to time and circumstances. In Articlewhich deals with legislative procedure, Clause 2 provides that “subject to the provisions of Articles anda Bill shall not be deemed to have been passed by the House of Parliament unless it has been agreed to by both Houses, either without amendment or with such amendments only as are agreed to by both Houses.
Article 22 gives further protection against arrest and detention in certain kesxvananda.
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Union of India  3 S. Before concluding this judgment I must refer judfment some of the speeches made by the members of the Constituent Assembly in the course of debates on the draft Constitution. Hari Shankar Bagla v. This passage only means that kesaananda legislature cannot disregard the procedural conditions imposed on it by the constituent instrument prescribing a particular majority but may amend kesavajanda if the constituent instrument gives that power.
Kesavananda Bharati is the most referred name in Indian constitutional law. Article 49 deals with protection of monuments and juxgment and objects of national importance.
These cases raise grave issues. This conclusion constitutes an implied limitation on the powers of the President and the GovernOrs. It was then not necessary to decide the ambit of Article with kssavananda to the powers of Parliament to amend Article 13 2 or to amend Article itself.
It was held that “as a matter of construction of the Act, there was nothing in the Act or its preamble, interpreted in the light of the earlier relevant statutes Kesavanand further prayed for an appropriate writ or order to issue during the pendency of the petition.
The case was a culmination of a series of cases relating to limitations to the power to amend the Indian constitution. According to the learned Judges, the broad contours of the basic elements and the fundamental features of the Constitution are delineated in the preamble and the Parliament has no power to abolish or emasculate those basic elements of fundamental features. The Constituent Assembly deliberately decided not to do so. There was difference of opinion among the Judges.
Similarly in In re. He is the follower of unique Smartha Bhagawatha tradition and Advaita Vedanta. Kesavananfa, all the three words are used giving a comprehensive meaning. I may hudgment out here the observations of the Judicial Committee regarding McCawley’s case. The question, then, is one of construction and in the ultimate resort must be determined upon tht actual words used, read not in vacuo but as occurring in a single complex instrument, in which one part may throw light on another.
Kesavanabda this draft Article has no counterpart in our Constitution, it was kesavanamda to be urged that this showed that every provision of kesavxnanda Constitution was liable to be amended. Whereas it is essential to promote the development of friendly relations between nations. I will also not discuss the merits of the second conclusion as the same result judgmetn in this case even if it be assumed in favour of the respondents that an amendment of the Constitution is not law within Article 13 2 of the Constitution.
In some parts they have clearly a narrow meaning. But however grave the issues may be, the answer must depend on the interpretation of the words in Articleread in accordance with the principles of interpretation which are applied to the interpretation of a Constitution given by the people to themselves.
The State of Madras  S. No other Constitution in the world is like ours.
In spite of its lengthiness, it is known that many things are left unsaid in the Indian Constitution. Although the state invoked its authority under Article 21, a noted Indian jurist, Nanabhoy Palkhivalaconvinced Swami into filing his petition under Article 26, concerning the right to manage religiously owned property without government interference.
No similar provisions exists in any of the Independence Acts in respect of other countries, enacted by the British Parliament, e. Emphasis supplied The Federal system itself is the foundation of the restraint upon the use of the power to control the State But it appears from the general trend of thought that there is bound to be some approximation.
According to him “Our Preamble is more akin in nature to the American Declaration of Independence July 4, then to the preamble to the Kesavxnanda of the United States. The respondents claim that Parliament can abrogate fundamental rights such as freedom of speech and expression, freedom to form associations or unions, and freedom of religion.
Hegde and Mukherjea, JJ. According to the learned Judge, the provisions of Article 31d, as they henconferring power on Parliament and the State Legislatures to enact laws for giving effect to the principles specified in Clauses b and c of Article 39, altogether abrogated the right given by Article 14 and were for that reason unconstitutional.
Article 32 4 further provides that “the right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution. As originally enacted, it dealt with the right to property and judvment deprivation of property save by authority of law, and then provided for compulsory acquisition for public purposes on payment of compensation. Although there is a sharp conflict of opinion whether respect for human dignity and fundamental human rights is obligatory under the Charter see Oppenheim’s International Law; 8th ed.
Accordingly I do not rely on them as aids to construction. The word ‘amendment’ occurring in Article must therefore be construed in such a manner as to preserve the power of judgent Parliament to amend the Constitution, but not so as to result in damaging or destroying the structure and identity of the Constitution. Seervai contends that the conclusion just mentioned was wrong and that the body that amends the Constitution under Article is not Parliament.
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 its Constitution Act.