concept for the first time in the historic Kesavananda Bharati case in Ever Rajasthan case raised doubts whether the fundamental rights of citizens. structure as was the case in the Government of India Act, , the essence of federalism In its ultimate analysis the question majority judgment in Kesavananda Bharati conceded to Parliament the right to make. KESAVANANDA BHARATI CASE AND EMERGENCE OF THE. DOCTRINE OF Analysis and Implications of Kesavananda Bharati decision.
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Kesavananda Bharati vs State Of Kerala And Anr on 24 April, This analysis of the provisions contained in Clauses (a) and (b) of the. The Kesavananda Bharati judgement or His Holiness Kesavananda Bharati Sripadagalvaru .. Archived from the original (PDF) on 3 December Retrieved. The last case before this when the Supreme Court considered the scope of the would, in the ultimate analysis, lead to the absurd consequence of rendering.
Under this case Supreme Court of India outlined the Basic Structure doctrine of the Constitution which forms and gives basic powers to the Indian Judiciary to review or to amend the provisions of the constitution enacted by the Parliament of India which conflict with or seek to alter the basic structure of the constitution. The fundamental question dealt in Kesavananda Bharati v State of Kerala is whether the power to amend the constitution is an unlimited, or there is identifiable parameters regarding powers to amend the constitution. These principles were commonly termed as Basic Structure. The Act was tested in High Court which held the demonstration to be Unconstitutional for being violative of Article 14 of the Constitution. Consequently keeping in mind the end goal to ensure and Validate Zamindari Abolition laws, the Government made First Amendment of the Constitution of India which rolled out a few improvements to the Fundamental Rights arrangements of the Constitution. Article Anand 31 B was likewise included.
However, they have, in their conclusion, mentioned that in the exercise of this aforementioned power, the Parliament cannot emasculate the basic elements or fundamental features of the Constitution. What these basic features are, is unclear.
He has also said that no part of a fundamental right can claim immunity from the amendatory process by being described as the essence or core of that right. He states that the power of amendment would also include within itself the power to add, alter or repeal the various Articles.
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. In my opinion, that cannot be said because 10 out of the 13 judges have held that Parliament is not barred from amending fundamental rights.
The second question to be asked is: Can it be said that the majority has upheld the Basic Structure doctrine? The answer to this is slightly more complex.
In the absence of such consensus can it be held to be a majority judgment? In my opinion, not. Secondly, did the judgment serve its intended purpose? The best place to begin answering these questions is the Constituent Assembly Debates.
A plain reading of the Debates will show that the Assembly has made no distinction between essential and non-essential features of the Constitution. There is no special significance given to some provisions of the Constitution as opposed to others. If at all an elevated status must deemed to have been given to some features of the Constitution, the same must be deduced from Article While most provisions of the Constitution can be amended by a majority of the total membership of each House and a two-thirds majority of the members present and voting coupled with a Presidential assent, some provisions have been specifically mentioned whose amendment will require not just the above mentioned majority but also a ratification by one-half of the total number of states.
If at all there has to be a Basic Structure, then that elevated status must be given to these Articles mentioned in Article , not to make them unamendable, but to recognize their fundamental importance. There is definitely no intention expressed to make any part of the Constitution unamendable, to the extent that the topic was not even debated. The fact that the First Constitutional amendment, which made important changes to fundamental rights, was passed without the power to amend such rights being questioned, is proof that the intention was not to make Part III unamendable.
Some judges have said that these vague features which will constitute the Basic Structure may be deduced from the Preamble to the Constitution.
Had this been intended, then there is no reason why the Constituent Assembly would not expressly mention it. Besides, how can the Preamble be the source of these unamendable basic features when the Preamble itself is a part of the Constitution, and is as such subject to amendment? To hold otherwise is to stray from the intention of the founding fathers. So, if the Constituent Assembly debates did not mention the need for any Basic Structure, from where did this term surface?
The doctrine that is said to cushion democracy in our country, was ironically born in the jurisprudence of a neighboring country known for its undemocratic ideology more than anything else. Henceforth the development to Kesavananda was set apart by a progression of Cases and choices that set the phase for the case itself.
Despite of the fact that the state conjured its power under Article 21, an Indian legal scholar, Nanabhoy Palkhivala, persuaded the Swami into filing his petition of under Article 26, concerning the privilege to oversee religiously claimed property without government obstruction.
The enormous battle was foreseen. Cooper , Madhavrao Scindia and Golak Nath. Every one of these corrections was under test in Kesavananda. Since Golak Nath was chosen by eleven judges, a bigger seat was required to test its rightness.
Thus 13 judges were to sit on the Kesavananda case. State of Punjab, and considered the validity of the 24th, 25th, 26th and 29th amendments. The case was of Kesavananda was heard by the largest ever Constitutional Bench of 13 Judges.
The Bench gave eleven separate judgements which are agreed on some point and disagreed on others. The court found the answer to the question left unanswered inGolaknathviz. This doctrine implies that though Parliament has the prerogative to amend the entire Constitution but subject to the condition that they cannot in any manner interfere with the features so fundamental to this Constitution that without them it would be spiritless.
In their opinion Indian Constitution is not a mere political document rather it is a social document based on a social philosophy. Every philosophy like religion contains features that are basic and circumstantial. It is upon the courts to see that a particular amendment violates Basic structure or not. This question has to be considered in each case in the context of a concrete problem.
The major findings of the court are as follows: The court upon a great discussion and analyzing the matter at length found the power of Amendment as contended by the respondent in the impugned Article After this judgment the court made explicit what was implicit pre-Golaknath. The court after hearing both sides came to the conclusion that in reality there do liesa difference between an ordinary law and an amendment.
To understand it simply; the parliament in order to pass a constitutionally valid amendment, the particular amendment is subject to the application of Basic Structure test and has to pass it. However, the list they prepared is not exhaustive and future courts on interpretation can add features they find as Basic Structures.
Neither the amount has to be the market value but it should be reasonably related to the market value. Khanna J. The court thereby upholding the 1st limb of 25th Amendment gave the required prerogative to Parliament to fulfill their socio-economic legislation guaranteed under Preamble as well as in certain provisions of Constitution and at the same time saved the citizens from Parliamentary Totalitarianism by striking down 2nd limb of the said amendment since it barred the fundamental, legal and constitutional right of legal remedy.
This made Amendment too rigid formulation and unknowingly made the Constitution too slow to change. The bench in this decision after putting a lot of thought into it had came up with a very unique. This inherent conflict and ambiguity was resolved when the majority bench came up with Doctrine of Basic Structure. This 13 judge bench decision corrected wrong precedents Shankari Prasad, Sajjan Singh, Golaknath made in the past and presented the Indian Democracy where all the institutions borne through Constitution can perform their respective obligations harmoniously.
After the application of this decision Judiciary, as given by the Constitution, has become final arbiter to check violation of constitutional provisions. Along with this it has also put a cap of restriction on the Parliament to keep its autocracy in check and to ascertain that there is no further violation of Fundamental rights.