Most importantly seven of the thirteen judges in the Kesavananda Bharati case, including Chief Justice Sikri who signed the summary statement, declared that Parliament's constituent powerwas subject to inherent limitations. Parliament could not use its amending powers under Article 36 8 to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or framework of the Constitution. Each judge laid out separately, what he thought were the basic or essential features of the Constitution.
There was no unanimity of opinion within the majority view either. Shelat, J. Hegde, J. Jaganmohan Reddy, J. He said that the Constitution would not be itself without the fundamental freedoms and the directive principles.
Only six judges on the bench therefore a minority view agreed that the fundamental rights o fthe citizen belonged to the basic structure and Parliament could not amend it. The minority view delivered by Justice A.
Ray whose appointment to the position of Chief Justice over and above the heads of three senior judges, soon after the pronunciation of the Kesavanand averdict, was widely considered to be politically motivated , Justice M. Beg , Justice K. Mathew and Justice S. Dwived i also agreed that Golaknath had been decided wrongly. They upheld the validity of all three amendments challenged before the court. Ray, J. All of them agreed that Parliament could make fundamental changes in the Constitution by exercising its power under Article In summary the majority verdict in Kesavananda Bharati recognised the power of Parliament to amend any or all provisions of the Constitution provided such an act did not destroy its basic structure.
But there was no unanimity of opinion about what appoints to that basic structure. Though the Supreme Court very nearly returned to the position of Sankari Prasad by restoring the supremacy of Parliament's amending power, in effect it strengthened the power of judicial review much more. In , The Supreme Court again had the opportunity to pronounce on the basic structure of the Constitution.
A challenge to Prime Minister Indira Gandhi's election victory was upheld by the Allahabad High Court on grounds of electoral malpractice in Pending appeal, the vacation judge- Justice Krishna Iyer, granted a stay that allowed Smt.
Indira Gandhi to function as Prime Minister on the condition that she should not draw a salary and speak or vote in Parliament until the case was decided. Meanwhile, Parliament passed the Thirty-ninth amendment to the Constitution which removed the authority of the Supreme Court to adjudicate petitions regarding elections of the President, Vice President, Prime Minister and Speaker of the Lok Sabha.
Instead, a body constituted by Parliament would be vested with the power to resolve such election disputes. Section 4 of the Amendment Bill effectively thwarted any attempt to challenge the election of an incumbent, occupying any of the above offices in a court of law. This was clearly a pre-emptive action designed to benefit Smt. Indira Gandhi whose election was the object of the ongoing dispute. Amendments were also made to the Representation of Peoples Acts of and and placed in the Ninth Schedule along with the Election Laws Amendment Act, in order to save the Prime Minister from embarassment if the apex court delivered an unfavourable verdict.
The mala fide intention of the government was proved by the haste in which the Thirty-ninth amendment was passed. The bill was introduced on August 7, and passed by the Lok Sabha the same day. The amendment was ratified by the state legislatures in special Saturday sessions. It was gazetted on August When the Supreme Court opened the case for hearing the next day, the Attorney General asked the Court to throw out the case in the light of the new amendment.
Counsel for Raj Narain who was the political opponent challenging Mrs. Gandhi's election argued that the amendment was against the basic structure of the Constitution as it affected the conduct of free and fair elections and the power of judicial review.
Counsel also argued that Parliament was not competent to use its constituent power for validating an election that was declared void by the High Court. Four out of five judges on the bench upheld the Thirty-ninth amendmen t, but only after striking downthat part which sought to curb the power of the judiciary to adjudicate in the current election dispute. Gandhi's election was declared validon the basis of the amended election laws.
The judges grudgingly accepted Parliament's power topass laws that have a retrospective effect. According to Justice H. Khanna, democracy is a basic feature of the Constitution andincludes free and fair elections.
Justice K. Thomas held that the power of judicial review is an essential feature. Justice Y. Chandrachud listed four basic features which he considered unamendable:. According to Chief Justice A. Ray , the constituent power of Parliament was above the Constitution itself and therefore not bound by the principle of separation of powers. Parliament could therefore exclude laws relating election disputes from judicial review. He opined, strangely, that democracy was a basic feature but not free and fair elections.
Ray, C. Mathew agreed with Ray, C. But he held that democracy was an essential feature and that election disputes must be decided on the basis of law and facts by the judiciary. Beg disagreed with Ray, C. He contended that supremacy of the Constitution and separation of powers were basic features as understood by the majority in the Kesavananda Bharati case. Beg, J. Despite the disagreement between the judges on what constituted the basic structure of the Constitution, the idea that the Constitution had a core content which was sacrosanct was upheld by the majority view.
Within three days of the decision on the Election case Ray, C. The petitions contended that the application of landceiling laws violated the basic structure of the Constitution. In effect the Review bench was to decidewhether or not the basic structure doctrine restricted Parliament's power to amend the Constitution.
The decision in the Bank Nationalisation case was also up for review. Meanwhile Prime Minister Indira Gandhi, in a speech in Parliament, refused to accept thedogma of basic structure.
It must be remembered that no specific petition seeking a review of the Kesavananda verdict filedbefore the apex court- a fact noted with much chagrin by several members of the bench. Palkhivala appearing for on behalf of a coal mining company eloquently argued against the move toreview the Kesavananda decision.
Ultimately, Ray, C. Many people have suspected the government's indirect involvement in this episode seekingto undo an unfavourable judicial precedent set by the Kesavananda decision.
However no concerted efforts were made to pursue the case. The declaration of a National Emergency in June and the consequent suspension offundamental freedoms, including the right to move courts against preventive detention, diverted theattention of the country from this issue. Soon after the declaration of National Emergency, the Congress party constituted a committee under the Chairmanship of Sardar Swaran Singh to study the question of amending the Constitution in the light of past experiences.
Based on its recommendations, the government incorporated several changes to the Constitution including the Preamble , through the Forty-second amendment passed in and came into effect on January 3, Among other things the amendment:. Article 31C was amended to prohibit any challenge to laws madeunder any of the Directive Principles of State Policy ;[22].
Within less than two years of the restoration of Parliament's amending powers to near absolute terms,the Forty-second amendment was challenged before the Supreme Court by the owners of MinervaMills Bangalore a sick industrial firm which was nationalised by the government in Palkhivala, renowned constitutional lawyer and counsel for the petitioners, chose not tochallenge the government's action merely in terms of an infringement of the fundamental right toproperty. Even after the judgement of the supreme court, the parliament has the unrestricted power to change or repeal any part of the Constitution.
Thus this Amendment creates a question regarding the supremacy i. Through this Amendment, the parliament declared the concept of basic structure invented by the supreme court is vague and unlawful. In Minerva Mills v. In this case, the validity of the 42 nd Amendment was challenged, as it destroyed the basic structure of the Constitution and regarding clause 4 and 5 of Article The Supreme Court by majority struck down the Clauses added by the 42 nd Amendment and stated that the limited power of the parliament is in the basic structure itself.
Chandra Kumar v. Under this case, the validity of the Article A and B was challenged, both deals with the exclusion of the High Court under Article and and the Supreme Court under Article 32 was inserted by the 42 nd Amendment. The SC, in this case, declared both the provisions unconstitutional and held that the power of judicial review under Article , , and 32 were given by the basic structure and the parliament has no power to amend that. The Supreme Court through Golaknath, Kesavanada Bharti, Indira Gandhi and various other cases tried to put an implied limitation on the amending powers of the parliament, if we summarize the judgements of all the cases discussed in this Article, the court always tries to pressurise on few things that are:.
As per Article of Indian Constitution, an Amendment can be introduced in either of the houses, later it can be passed by a special majority or by a simple majority. Later if the bill is passed by the majority it will be sent to the President for his assent. The 42 nd Amendment is considered as the mini-Constitution, the terms socialist, secular, integrity was inserted through it.
However, in my views, the court by giving the judgements tries to increase their powers and put express limitations on the parliament. The Article is silent on the matter whether the parliament has the power to amend the basic structure or not, but that also does not mean that the Article put the limitation regarding the Amendment of basic structure as well as Part III of the Constitution.
Immediately after the decision of the Supreme court in Kesavanada Bharti and Indira Gandhi case, the parliament introduced the 42 nd Amendment and added the word secular and socialist in the preamble and added clause 4 and 5 to the Article of the Constitution. It indirectly declares that there is no limitation in the power of the parliament regarding the Amendment.
Even after the judgement of the Supreme Court, the parliament has the unrestricted power to change or repeal any part of the Constitution. Through this Amendment, the parliament declared the concept of basic structure invented by the Supreme Court is vague and unlawful. Save my name, email, and website in this browser for the next time I comment.
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Please enter your name here. You have entered an incorrect email address! Powered by iPleaders. Register now Name. The social, economic and political circumstances of the people go on changing and the constitutional law of the nation must, therefore, adapt in order to the changing needs, changing the lives of the people. If no arrangements were made for modification of the constitution, the people would have recourse to extra-constitutional processes including insurrection to reform the constitution.
The Constitution needs to be updated in every period. No-one may say this is the finish. Instead of leaving this important task entirely to the judiciary, the framers of the Indian Constitution inserted Article as a formal method to provide for a constitutional amendment. Articles Power to amend the Constitution and Procedure thereof — Notwithstanding anything contained in this Constitution, Parliament may, in the exercise of its constituent power, amend any provision of this Constitution following the procedure laid down in this Article by way of addition, variation or repeal.
The Indian legislature is responsible for formulating new legislation, amending the existing laws and squashing obsolete ones in certain situations. The Constitution will also be revised, being simply a statute. The rights of the government to change the constitution have always been a matter of controversy and over the years there has been much disagreement. The Constitution lays out the fundamental government system by which the people want to be regulated themselves.
Not only does the Constitution describe the powers of each entity but it also points out its obligations. This governs the relationship between the different bodies, and the government and the people.
An amendment to the Constitution may only be initiated by introducing a Bill for that purpose in either House of the Parliament and, when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and vote, it shall be presented to the President, who shall give his assent to the Bill.
The process laid down in Article shall be complemented by the rules defined by every House for governing its practice and the conduct of its business. Like the Constitutions of the United States, Switzerland and Australia, no opportunity has been granted to the citizens of India either at the incorporation point or at the ratification point to express themselves regarding the constitutional change.
They must entrust the future of their Constitution to the members of Parliament and, in some cases, to those of their respective state legislatures. The Constitution provides for the following four procedures for amendment:. The Parliament of the state legislatures may amend these provisions by a simple majority since they do not affect or disturb the federal balance of power between the Union and the states.
Some of the provisions that can be amended are :. The method will be as follows:. The special majority is not sufficient for some articles of the Constitution. When an amendment attempts to amend an article relating to the allocation of powers between states and the Central Government, or articles relating to the representation, it is appropriate to consult the states and to give their consent.
The Constitution has maintained that by ensuring that half-state legislators must pass the amending bill before the provision enters into effect. At the same time, care is taken to keep this procedure somewhat flexible even in its more rigid format: it requires consent from only half the states and suffixes for a simple majority of the state legislature.
Thus, even after taking into account this more stringent condition, the amending process is not impracticable. In the famous Kesavananda Bharati case , the decision led in the following ways to the development of the Constitution: it placed strict limitations on the authority of Parliament to change the Constitution.
Nagaraj v. Basic structures are systematic principles underlying and binding constitutional provisions.
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