Over the centuries, the singular truism which is well recognized is that the guidelines or laws to be enforced, cannot be mired in time and need to evolve so as to be relevant to the prevailing social and moral context. This truism requires constant change, which like all change is disruptive. History therefore inevitably reveals turbulence and conflict as the legal framework slowly adapts in a struggle to keep pace with social evolution. This is because under the common law system, the law of the land is made by the courts since it is the manner in which courts interpret statutes that creates the judicial precedents which then is the established law. A study of how judicial decisions framed or established norms and values which we treasure today and perhaps take unthinkingly for granted can be fascinating. CAM has embarked on an analysis of a series of such landmark decisions in an attempt to present a hindsight perspective into what exactly happened, the socio-political compulsions of the day and their impact in shaping Indian society and governance today.
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Notes The basic structure doctrine forms the basis of power of the Indian judiciary to review, and strike down, amendments to the Constitution of India enacted by the Indian parliament which conflict with or seek to alter this basic structure of the Constitution. The judge Constitution bench of the Supreme Court deliberated on the limitations, if any, of the powers of the elected representatives of the people and the nature of fundamental rights of an individual.
In a sharply divided verdict, by a margin of , the court held that while the Parliament has "wide" powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution. Primary among these was the imposition of the state of emergency by Indira Gandhi in , and the subsequent attempt to suppress her prosecution through the 39th Amendment.
When the Kesavananda case was decided, the underlying apprehension of the majority bench that elected representatives could not be trusted to act responsibly was perceived to be unprecedented. However, the passage of the 39th Amendment proved that in fact this apprehension was well-founded. In Indira Nehru Gandhi v.
Raj Narain, a Constitution Bench of the Supreme Court used the basic structure doctrine to strike down the 39th amendment and paved the way for restoration of Indian democracy. A noted Indian jurist, Nanabhoy Palkhivala , convinced Swami into filing his petition under Article 26, concerning the right to manage religiously owned property without government interference. The case had been heard for 68 days, the arguments commencing on October 31, , and ending on March 23,, and it consists of pages.
State of Punjab, and considered the validity of the 24th, 25th, 26th and 29th amendments. The case was heard by the largest ever Constitution Bench of 13 Judges. The bench gave eleven separate judgements, which agreed on some points and differed on others. However, the Court affirmed another proposition also asserted in the Golaknath case, by ruling that the expression "amendment" of this Constitution in article means any addition or change in any of the provisions of the Constitution within the broad contours of the Preamble and the Constitution to carry out the objectives in the Preamble and the Directive Principles.
Applied to fundamental rights, it would be that while fundamental rights cannot be abrogated, reasonable abridgement of fundamental rights could be affected in the public interest.
The true position is that every provision of the Constitution can be amended provided the basic foundation and structure of the Constitution remains the same. Shelat , K. Hegde , A. Grover, B. Jaganmohan Reddy, D. Palekar, H R Khanna , A. Mukherjee and Yeshwant Vishnu Chandrachud. Four judges did not sign: A. Ray, K. Mathew, M. Beg and S. Sikri, Chief Justice S M Sikri , Chief Justice held that the fundamental importance of the freedom of the individual has to be preserved for all times to come and that it could not be amended out of existence.
According to the Honourable Chief Justice, fundamental rights conferred by Part III of the Constitution of India cannot be abrogated, though a reasonable abridgment of those rights could be effected in public interest. There is a limitation on the power of amendment by necessary implication which was apparent from a reading of the preamble and therefore, according to the learned Chief Justice, the expression "amendment of this Constitution", in Article means any addition or change in any of the provisions of the Constitution within the broad contours of the preamble, made in order to carry out the basic objectives of the Constitution.
Accordingly, every provision of the Constitution was open to amendment provided the basic foundation or structure of the Constitution was not damaged or destroyed.
Shelat and Grover, JJ Held that the preamble to the Constitution contains the clue to the fundamentals of the Constitution. According to the learned Judges, Parts III and IV of the Constitution which respectively embody the fundamental rights and the directive principles have to be balanced and harmonised.
There was thus an implied limitation on the amending power which prevented the Parliament from abolishing or changing the identity of the Constitution or any of its Basic Structure. Hegde and Mukherjea, JJ Held that the Constitution of India which is essentially a social rather than a political document, is founded on a social philosophy and as such has two main features basic and circumstantial.
The basic constituent remained constant, the circumstantial was subject to change. 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 building of a welfare State is the ultimate goal of every Government but that does not mean that in order to build a welfare State, human freedoms have to suffer a total destruction.
Applying these tests, the learned Judges invalidated Article 31C even in its un-amended form. Therefore, the width of the power of amendment could not be enlarged by amending the amending power itself.
The learned Judge held that the essential elements of the basic structure of the Constitution are reflected in its preamble and that some of the important features of the Constitution are justice, freedom of expression and equality of status and opportunity. According to the learned Judge, the provisions of Article 31d, as they hen, conferring 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.
In conclusion, the learned Judge held that though the power of amendment was wide, it did not comprehend the power to totally abrogate or emasculate or damage any of the fundamental rights or the essential elements of the basic structure of the Constitution or to destroy the identity of the Constitution.
Subject to these limitations, Parliament had the right to amend any and every provision of the Constitution. H R Khanna J. H R Khanna has given in his judgment that the Parliament had full power to amend the Constitution, however, since it is only a "power to amend", the basic structure or framework of the structure should remain intact. While as per the aforesaid views of the six learned Judges, certain "essential elements" which included fundamental rights of the judgment cannot be amended as there are certain implied restrictions on the powers of the parliament.
Therefore, the words "amendment of the Constitution" in spite of the width of their sweep and in spite of their amplitude, could not have the effect of empowering the Parliament to destroy or abrogate the basic structure or framework of the Constitution. This gave birth to the basic structure doctrine , which has been considered as the cornerstone of the Constitutional law in India.
Advocate C. Daphtary termed the incident as "the blackest day in the history of democracy". Apart from it, the judgement cleared the deck for complete legislative authority to amend any part of the Constitution except when the amendments are not in consonance with the basic features of the Constitution.
The basic structure doctrine was adopted by the Supreme Court of Bangladesh in , by expressly relying on the reasoning in the Kesavananda case, in its ruling on Anwar Hossain Chowdhary v.
Bangladesh 41 DLR App. It has been published by Universal Law Publishing Company in
Kesavananda Bharati v. State of Kerala and The Basic Structure Doctrine
A noted Indian jurist, Nanabhoy Palkhivala , convinced Swami into filing his petition under Article 26, concerning the right to manage religiously owned property without government interference. The case had been heard for 68 days, the arguments commencing on October 31, , and ending on March 23,, and it consists of pages. State of Punjab, and considered the validity of the 24th, 25th, 26th and 29th amendments. The case was heard by the largest ever Constitution Bench of 13 Judges. The bench gave eleven separate judgements, which agreed on some points and differed on others.
Kesavananda Bharati v. State of Kerala
Free for one month and pay only if you like it. Supreme Court of India Kesavananda Bharati Cj Shelat, J. Mukherjea, B.