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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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Kesavananda Bharati v. State of Kerala – Wikipedia

The kesavananca of Article 13 thus depends on the sense in which the word “law” in Article 13 2 is to be understood. Story says that Clause 18 imports no more than would remit from necessary implication see pp.

Part V Chapter I, deals with the Executive; Chapter II with Parliament-conduct or its business, qualification of its members, legislation procedure etc. In Kesavananda Bharati vs State of Kerala, the court ruled that the basic structure of the Constitution is inviolable, and could not be amended by Parliament. It is rightly urged that the expression “which was neither fundamental in the sense of being beyond change” bharagi reference to Section 29 2 of the Ceylon Constitution.

Kesavananda Bharati

In the earliest draft the Preamble was something formal and read: Another article which has been included in the proviso to Article is Article 73 which deals with the extent of executive powers of the Union. The Judicial Committee deduced from these provisions thus: Article enables the President by order to make exceptions and modifications kkesavananda the provisions of Article to The answer seems plain enough: Some implications are necessary from the structure of the Constitution itself, but it is inevitable kesavansnda, I should think, that these implications can only be defined by a gradual process of judicial decision” Per Starke J.

Similarly in In re. Ambedkar specifically rejected Prof.

It is true that there is no complete definition of the word “law”‘ in the article but it is significant that the definition does not seek to exclude Constitutional amendments which it would have been easy to indicate in the definition by adding “but shall not include an amendment of the Constitution”.

Article 27 enables presons to resist payment of any taxes the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.


I have mentioned them only to give another example.

It is not even included in the proviso to Article and it is difficult to think that as it has not the protection of the proviso it must be within the main part of Article If the language is not plain and clear, then the preamble may have effect either to extend or restrict the language used in the body of an enactment. Nothing provokes and stimulates thought and expression in people more than education.

According to him “Our Preamble is more akin in nature to the American Declaration of Independence July 4, then to mudgment preamble to the Constittuion of the United States.

Any amendment, according to them, should leave behind a mechanism bbarati Government for the making, interpretation and implementation of laws. The reason could only be an implied limitation on the power to amend under Section 29 4 deducible from “the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution”. He invariably employs the expression “basic structure”.

Does the fact that the Constitution is “federal” carry with it implications limiting the law-making powers of the Parliament of the Commonwealth with regard to the States?

It was by the application of this “supreme criterion of validity” that a distinction was drawn between constitutional law and kesaavnanda law and the Golak Nath decision regarding the fundamental rights was declared erroneous. State of Bombay 1 SCR He expressed his agreement with the reasoning of Patanjali Sastri, J. In the present case, on the other hand, the legislature has purported to pass a kesavansnda which being in conflict with Section 55 of the Order in Council, must be treated, if it is to be valid, as an implied alteration of the Constitutional provisions about the appointment of judicial officers.

Maybe it is time for the strong and eloquent judges of the Bahrati Court of India to replace this and restore the Constitution to the glory of its origin. State of Madras [] 1 S.

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Reliance on a principle coined by judges themselves to uphold the insularity and independence of the judiciary has irony writ large on its face.

Such a Constitution can, indeed, be altered or amended by the legislature, if the regulating instrument so provides that if the terms of those provisions are compiled with and the alteration or amendment may include the change or abolition of those very provisions.


Section 29 deals with the power of Parliament to make laws. The principles set forth in this Part are intended for the general guidance of the appropriate Legislatures and Government in India hereinafter referred to collectively kesavanqnda ‘the State’.

Seervai’s written submissions, clearly shows that the Judicial Committee in this passage was not dealing with the amendment of Section 29 2 of the Ceylon Constitution and had understood McCawley’s [] A. Section 55 1 reads:. This Commission will make its recommendations to the Constitutionmaking body and will also suggest at which stage or stages in the Constitution these provisions should be inserted, that is whether in the Union, Group or Judgent Constitutions or in any two or more of them.

Subject to the provisions of this Chapter, trade, commerce and intercourse throughout the territory of India shall be free Article As a result of the amendment, the old Constitution cannot be destroyed or done away with ; it is retained though in the amended form.

A more reasonable inference to be drawn from the whole scheme of the Constitution is that some other meaning of “Amendment” is most appropriate. The next passage, a part of which I have already extracted, which deals with the difference between McCawley’s case and Ranasinghe’s [] A. Article 79 3 of the Basic Law lays down: Prince Ernest Augustus of Hanover [] A.

Union of India 2 SCR at Fourthly, in any case Article is a complete code in itself and does not provide for any amendment being made in the bill after it has been introduced in the House. When Ray and Mathew, JJ. Supreme Court of India. What then is meant by the retention of the old Constitution? 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.

There was difference of opinion among the Judges.