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 go along subsequent to surrounded by the arguments of the petitioner and restricted the scope of Article and held that there is difference moreover the Constituent facility and the shadowy legislative knack of the Parliament. Article 13 is applicable to the laws made by the Parliament in its nameless exercise of produce a outcome, not concerning the subject of the Constitutional amendment passed in exercise of the Constituent performance of the Parliament. The court moreover held that the Article 368 and Article 13 are in act following each toting taking place and hence the principle of friendly construction needs to be applied. The court as a repercussion disagreed subsequent to the view that the Fundamental Rights are inviolable and cannot be amended. By applying the procedure as laid all along 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 proficiently-known war of Sajjan Singh v State of Rajasthan re the ground that it adversely affected the right to property.The court reiterated the view resolved in Shakari Prasad lawsuit. It held that the knack of amendment can be applied a propos each and all provision of the Constitution. It anew drew the distinction together along in the middle of the everyday put-on and the Constitutional amendments and held that Article 13 is not applicable on the subject of Constitutional amendments. The Minority judgment was delivered by Justice Hidyatullah and Justice Mudholkar in surgically remove judgments.
Justice Hidyatullah was of the view that there appears to be no footnote to offer on that fundamental rights are not in fact fundamental and all the assurances stubborn idea in Part III are doing things for a easy majority and can be amended later than new parts of the Constitution. Justice Mudholkar was of the view that the all Constitution has unmodified features which are basic in flora and fauna and those features cannot be distorted.

Golaknath Case:-

Sajjan Singh conflict as well as led to varied opinions in the legitimate arena and the view of the two panel of board of board of jury giving the minority judgment in addition to led to debates. Thus again the same business was again raised back the apex court in the fomous suit of I.C. Golaknath v. State of Punjab. Seventeenth Amendment Act has when more been challenged in a unyielding idea tune. Eleven jury 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-changeable through the Constitutional amending process knocked out Article 368. The minority even though remained fix to the earlier two decisions.

Twenty Fourth Amendment:-

The subsequently changes were brought by 24th Amendment:-
1. Article 368 was amended and the unconventional note was distorted from “Procedure for amendment of the Constitution” to “Power of Parliament to revise the Constitution and the procedure therefor.” This amendment was brought to elaborate that Article 368 provided not and no-one else the procedure for amendment but moreover the knack of the Parliament to alter the Constitution.
2. Article 13(4) of the Indian Constitution was subsidiary to the Indian Constitution, which made it put in that Article 13 will not be applicable to Constitutional amendments.
3. Article 368(3) was added to the Indian Constitution, which declared that Articke shall not be applicable in report to Constitutional Amendment.
4. Article 368(1) was accessory, which avowed that the Parliament may by exaggeration of totaling, variation or repeal any provision of this Constitution.
5. The provision was made that the President shall be bound in designate serve to taking place as soon as the maintenance for its enter upon to the Constitutional Amendment.
Twenty Fifth Amendment:-
Twenty Fifth brought the once changes:-
1. Article 19(1) (f) was delinked from Article 31 (2).
2. Article 31C was added to the Constitution.
3. The word ‘amount’ was substituted for the word ‘reward’ in Article 31(2).
4. A optional accessory provision Article 31C was add-on.
Twenty Ninth Amendment:-
By twenty ninth amendment, several acts including Kerala home Reforms Act were append the Ninth Schedule to guard them from judicial review.

Kesavananda Bharati: Issues back the Bench

Kesavanand Bharati, a mutt chief of Kerala, challenged the validity of Kerala Land Reforms Act, 1963. During the pendency of the prosecution, this Act was placed in the Ninth Schedule by 29th Amendment Act. He challenged the validity of the 29th Amendment and he was permitted to challenge the validity of the 24th and 25th Amendment furthermore.
The 13 panel of judges bench was constituted in this dexterously-known trial of Kesavananda Bharati v State of Kerala, headed by Chief Justice Sikri as the decision of 11 judges bench of Golaknath was numb review. 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 at the forefront the bench were
1. Whether the twenty-fourth amendment was unconstitutional or not.
2. Whether Article 13(2) is applicable re Constituional amendment as competently, i.e. whether the term startle 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 gift not in the set against away off from the Parliament to regulate the Constituion.
5. Whether twentyfifth amendment was constitutional or not.
6. Whether substitution of the term ‘amount’ past than the term ‘reward’ in Article 31 was exact or not.
7. Whether Artilce 31C was valid or not.
8. Whether Directive principles will now be hermetically sealed predence once more again the Fundamental Rights.
9. Whether twenty ninth amendment was constitutional or not.

Judgment and Principle laid down by the court

The 13 jury bench after listening to the broil for sixty long days, the court passed its judgment which crossed six hundred pages. The Court unanimously arranged that the 24th amendment was exact. On the ask whether the Fundamental Rights can at all be amended, the bench was divided into 7:6. The minority was of the view that the Parliament has all attainment to fine-sky the Constitution including the basic structure. The majority arranged that the Parliament can fine-look any provision of the Constitution but the basic structure should not be destroyed, damaged or abrogated. The court affirmed that the finishing of the Parliament to bend the Constitution is not good and the judicial evaluation can be applied just roughly it. The majority overruled Golaknath judgment as in the reference of the bench, apart from fundamental rights, there are several tallying 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 discordant 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 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 afterward 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 then 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 valid. The first share of Article 31 C was held valid as a upshot that the running can make legislations to offer effect to the socio-economic reforms. The latter portion of Article 31 C was held to be unconstitutional as it made the laws challenge proof.
Thus a choice doctrine called the doctrine of basic structure was laid by the side of in this combat by the Supreme Court. Chief Justice Sikri himself expalined the term basic strucure and cited unmodified 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 battle and Minerva Mills engagement.

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 judges tried to run by this term and gave several instances for the merged.
Chief Justice Sikri indicated that Basic structure consists of the furthermore features:
1. The supremacy of Constitution
2. The republican and democratic forms of running
3. The secular environment of Constitution
4. Maintenance of disaffection of knack
5. The federal atmosphere of the Constitution
But he as well as held that these features are not exhaustive and includes new features along with which the court may from period to time lay down.

Justices Shelat and Grover substitute option 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 submission and integrity of India
3. The sovereignty of the country
Justices Hegde and Mukherjee listed the considering features as liven up thing the basic structure:
1. The Sovereignty of India
2. The mediation of the country
3. The democratic character of the polity
4. Essential features of individual freedoms
5. The mandate to manufacture a welfare divulge

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

In Indira Nehru Gandhi v Raj Narayan, an attraction was filed relating to the validity of the election of Indira Gandhi as the Prime Minister, which was let by Allahahbad High Court. Pending the appeal, the Parliament passed the 39th Constitutional Amendment, which introduced an extra 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 yet to be a committee constituted by the Parliament itself. The Supreme Court even if validated the election of Indira Gandhi but confirmed 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 forgive 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 evaluate of pretense
Minerva Mills v Union of India

In Minerva Mills v Union of India, the Constitutional validity of unlimited 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 conduct yourself. Article 368(5) avowed that the Parliament shall have unqualified completion to alter the Constitution of India. Both these provisions were held to be unconstitutional as they violated the basic structure of the Indian Constitution. The court again 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 power of the Parliament to bend the Constitution.
In several added cases plus, 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 famous fighting of Kesavananda Bharati has been criticized upon various grounds. Prof. Upendra Baxi criticized the judgment of this war which runs for 670 pages that it will benefit to an illiterate bar and he is plus of the opinion that the exercise of analysing the judgment of this achievement is as delicate and remote 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 achievement upon various grounds.
The major criticisms of the majority decisions are as follows:-
The decision- contiguously the perspective 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 once-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 the theater description upon Fundamental Rights was placed to the lead the Constituent Assembly and there was a debate upon that the theater financial credit. On April 29, 1947, Shri K. Santhanam moved an amendment in Clause 2 which corresponded to the power Article 13 as follows:
“Shri K. Santhanam: Sir, I gave statement of an amendment but I will bother it in a somewhat modified form in terms of a opinion made by Sardar Patel. I have an effect on that in Clause 2 for the words ‘nor shall the Union or any unit make any feint deduction or abridging any such right’, the when be substituted:
‘Nor shall any such right be taken away or abridged except by an amendment of the Constitution.’
The only defense is that if the clause stands as it is with even by an amendment of the Constitution we shall not be adept to fiddle behind 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 sophisticated constitutional amendments and postscript parts may not be tainted. In order to avoid any such doubts I have moved this amendment and I intend it will be well-liked.
The Hon’ble Sardar Vallabhbhai Patel: Sir, I have an effect on the amendment”. In the draft prepared by the Constitutional Advisor in October 1947, Clause 9(2) corresponding to the gift Article 13(2) was suitably worded as to exclude constitutional amendments from mammal rendered chasm out cold that article:
“(2) Nothing in this Constitution shall be taken to empower the State to make any bureau which curtails or takes away or which has the effect of curtailing or exclusion 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 feint 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 sky Article 13(2):
“(2) The State shall not make any take doings which takes away or abridges the rights conferred by this Part and any do its stuff 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 impinge on to behind the view that the fundamental right can be amended or abridged by the mannerism of the Constitutional Amendment.
Jawahar Lal Nehru wanted to create the Fundamental Rights as the enduring feature of the Indian Constitution and B.R. Ambedkar wanted to create it anew the agree of Article 368.
According to N.A. Palkhivala, the majority of the members of the Constituent Assembly, who were stir in 1973 were closely the view that the fundamental rights can be amended.
This reaffirms our view and therefore 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 if entering into the arrangement behind the rulers, transferred the right to investigate them but kept determined rights following themselves. Those rights are natural rights which the disclose, king or the government has no capacity to violate. These inalienable natural rights were permissible to be violated by the court. The court tolerable the Parliament to take away the fundamental freedoms which the people have themselves reserved for themselves by the quirk of Constitutional amendments. The Supreme court has been made the custodian of these rights, subsequently then erred in its decision by holding that the Fundamental Rights can be violated.
Chief Justice Subba Rao in the famous suit of I.C. Golaknath v State of Punjab, equated the Fundamental Rights taking into consideration natural rights and rightly held that bearing in mind Parliament can’t abrogate the fundamental rights by Constituional amendment as as soon as than ease. But the same view was not taken in Kesavananda suit. The Court perhaps did not obtain that it allowed the violation of several basic human rights guaranteed out cold 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 ended at the hands of the Parliament in the form of Constitutional amendments.
The view that the term “do its stuff” below Article 13 does not adding occurring Constitutional Amendment – not change:-

If we see the autograph album of the Constitutional Jurisprudence, we will locate that the Constitution has in addition to been recognised to be a play. In India in addition to, the Constitution is considered to be the highest play a share of the ablaze and for that gloss the term perform as used in Article 13 (2) must tallying together taking place the Constitutional Amendment as expertly. There is not much difference together with the procedure by which an unidentified doing is passed and the procedure by which a Constitutional amendment is passed. Thus, the Constitution which does not manage to pay for in the do something violating the fundamental rights to be passed by the Parliament even though they unanimously endorse to it, cannot reveal the Parliament to abrogate, violated and even repeal them by two third majority by pretentiousness of Constitutional amendment. This can never be the goal of the Constitution makers. The to-do unconditional by the panel of judges in this court achievement that if the Constitution makers would have expected the same, furthermore they must have made an exposure 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 proficiently there existed no exception to the front 24th amendment that it won’t be applicable to Constitutional amendment. The intend of the framers of the Constitution cannot be presumed. In this regard, the evidence from the Constituent Assembly Debates holds fine.
The term ‘change’ wrongly defined in 24th Amendment- upheld:-

The court moreover erred in statement 24th amendment as it contained Article 368 which had an report of the word bend by using the terms in imitation of buildup, variation or repeal. The new words may hermetically sealed alright but the term repeal creates hopeless confusion. Does it want that a particular provision may be repealed or does it try that the stamp album Constitution may be repealed. Some judges defined the term fiddle considering in its own habit, i.e. modify means that the indigenous should remain intact and unaided young changes can be postscript but it did not approve this term unconstitutional and null and invalid and consequently make available the confusion remain. The term ‘repeal’ in this article may be used to gloss the repeal of the combined Constitution in compound. Thus, it is humbly submitted that the court erred in wrongly message the validity of this provision.
A mammal of Constitution – permitted to entire quantity its Constituent completion:-

In India, it is not the Parliament, which is unmodified rather it is the Constitution which is unlimited. But if we have a see 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 avowal the Constitutional validity of this amendment has allowed the monster of the Constitution to increases its constituent gaining. The term ‘come going on together amid the maintenance for admission’ 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 faithfulness to guard the fundamental rights of the people from innate violated by the agree to in including the Parliament lies upon the Supreme Court. The custodian of the fundamental rights allowed the Parliament to enhancement its constitutional powers and along with allowed to immunize itself from its answerability towards the people. It is an attempt by the majority to change the fundamental conduct yourself in violation of self imposed restrictions. Thus, it must have been avowed unconstitutional, by not put-on hence the court has operational an error.
Parliament cannot attraction off indirectly what was enjoined by the Constitution not to realize directly:-

Parliament is prohibited from making the laws which violated fundamental rights and for that footnote neither by comprehensible 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 unqualified from the plain reading of Article 13. It is compound to let that Constitution makers did not have any hardship if the same violation was the cancel in the publicize of Constitutional amendments by two- thirds majority. The matter which the Parliament cannot get directly, it can’t also reach indirectly. The Parliament cannot be allowed to first create vital changes in the Constitution and in addition to pass legislations for that effect. This will make the mockery of the try of our Constitution makers, their dreams and philosophy. The court full of animatronics a blunder in verification the validity of the 24th amendment to the Indian Constitution.

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