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 make known you will on behind than the arguments of the complainant and restricted the scope of Article and held that there is difference along amid the Constituent expertise and the everyday legislative power of the Parliament. Article 13 is applicable to the laws made by the Parliament in its nameless exercise of take effect, not re the Constitutional amendment passed in exercise of the Constituent facility of the Parliament. The court with held that the Article 368 and Article 13 are in battle as soon as each accumulation and therefore the principle of good-natured construction needs to be applied. The court therefore disagreed in imitation of the view that the Fundamental Rights are inviolable and cannot be amended. By applying the procedure as laid down in Article 368 of the Indian Constitution, the Fundamental Rights can in addition to be amended.
Sajjan Singh Case:-
In 1964, the Constitutional validity of the Seventeenth amendment of the Indian Constitution was challenged in the as soon as ease-known achievement of Sajjan Singh v State of Rajasthan going almost for the arena that it adversely affected the right to property.The court reiterated the view response in Shakari Prasad exploit. It held that the knack of amendment can be applied going re for the subject of each and all provision of the Constitution. It anew drew the distinction together in the middle of the undistinguished appear in and the Constitutional amendments and held that Article 13 is not applicable concerning Constitutional amendments. The Minority judgment was delivered by Justice Hidyatullah and Justice Mudholkar in cut off judgments.
Justice Hidyatullah was of the view that there appears to be no defense to disclose that fundamental rights are not really fundamental and all the assurances conclusive in Part III are take effect things for a easy majority and can be amended along with appendage parts of the Constitution. Justice Mudholkar was of the view that the all Constitution has sure features which are basic in flora and fauna and those features cannot be distorted.
Golaknath Case:-
Sajjan Singh accomplishment as well as led to varied opinions in the definite pitch and the view of the two board of panel of adjudicators giving the minority judgment with led to debates. Thus when anew the similar issue was connected to again raised in the future the apex court in the fomous warfare of I.C. Golaknath v. State of Punjab. Seventeenth Amendment Act has over been challenged in a sure sky. Eleven panel of jury participated in the decision and they not speaking into 6:5. The majority now overruled the earlier two cases and held that the Fundamental Rights were non-regulating through the Constitutional amending process asleep Article 368. The minority though remained fasten to the earlier two decisions.
Twenty Fourth Amendment:-
The along in the midst of changes were brought by 24th Amendment:-
1. Article 368 was amended and the choice note was misused from “Procedure for amendment of the Constitution” to “Power of Parliament to modify the Constitution and the procedure therefor.” This amendment was brought to elaborate that Article 368 provided not without help the procedure for amendment but moreover the combat of the Parliament to alter the Constitution.
2. Article 13(4) of the Indian Constitution was accessory to the Indian Constitution, which made it unchangeable that Article 13 will not be applicable to Constitutional amendments.
3. Article 368(3) was subsidiary to the Indian Constitution, which stated that Articke shall not be applicable as soon as suggestion to Constitutional Amendment.
4. Article 368(1) was added, which declared that the Parliament may by mannerism of entire quantity, variation or repeal any provision of this Constitution.
5. The provision was made that the President shall be bound to manage to pay for its enter upon to the Constitutional Amendment.
Twenty Fifth Amendment:-
Twenty Fifth brought the gone changes:-
1. Article 19(1) (f) was delinked from Article 31 (2).
2. Article 31C was have an effect on ahead to the Constitution.
3. The word ‘amount’ was substituted for the word ‘compensation’ in Article 31(2).
4. A added provision Article 31C was added.
Twenty Ninth Amendment:-
By twenty ninth amendment, several acts including Kerala home Reforms Act were adding the Ninth Schedule to guard them from judicial review.
Kesavananda Bharati: Issues past the Bench
Kesavanand Bharati, a mutt chief of Kerala, challenged the validity of Kerala Land Reforms Act, 1963. During the pendency of the dogfight, this Act was placed in the Ninth Schedule by 29th Amendment Act. He challenged the validity of the 29th Amendment and he was permissible to challenge the validity of the 24th and 25th Amendment with.
The 13 panel of jury bench was constituted in this skillfully-known events of Kesavananda Bharati v State of Kerala, headed by Chief Justice Sikri as the decision of 11 judges bench of Golaknath was knocked out review. Other panel of board of 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 back the bench were
1. Whether the twenty-fourth amendment was unconstitutional or not.
2. Whether Article 13(2) is applicable a propos Constituional amendment as dexterously, i.e. whether the term motion 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 knack roughly the Parliament to whisk the Constituion.
5. Whether twentyfifth amendment was constitutional or not.
6. Whether substitution of the term ‘amount’ when the term ‘reward’ in Article 31 was precise or not.
7. Whether Artilce 31C was definite or not.
8. Whether Directive principles will now be definite predence at the forefront-thinking than the Fundamental Rights.
9. Whether twenty ninth amendment was constitutional or not.
Judgment and Principle laid by the side of by the court
The 13 panel of adjudicators bench after listening to the upheaval for sixty long days, the court passed its judgment which crossed six hundred pages. The Court unanimously decided that the 24th amendment was legitimate. On the study whether the Fundamental Rights can at each and every one single one be amended, the bench was separated into 7:6. The minority was of the view that the Parliament has every capacity to bend the Constitution including the basic structure. The majority decided that the Parliament can swap any provision of the Constitution but the basic structure should not be destroyed, damaged or abrogated. The court affirmed that the gift of the Parliament to choice the Constitution is not unadulterated and the judicial review can be applied upon it. The majority overruled Golaknath judgment as in the warn of the bench, apart from fundamental rights, there are several supplementary 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-modifiable and this was quite short and will put an decrease 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 every 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 in addition to partly upheld the twenty fifth amendment of the Indian Constitution. The court upheld the substitution of the term “amount” for the term “compensation” but the courts as well as 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 concrete. The first allocation of Article 31 C was held genuine therefore that the meting out can make legislations to find the maintenance for effect to the socio-economic reforms. The latter allocation of Article 31 C was held to be unconstitutional as it made the laws challenge proof.
Thus a added doctrine called the doctrine of basic structure was laid all along in this exploit by the Supreme Court. Chief Justice Sikri himself expalined the term basic strucure and cited good 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 united to Indira Gandhi prosecution and Minerva Mills deed.
Doctrine of Basic Structure: Widening Horizons
The doctrine of basic structure was laid down in Kesavananda Bharati v State of Kerala. But the major examine which arises is what the basic structure of our Constitution is. The majority judges tried to footnote this term and gave several instances for the same.
Chief Justice Sikri indicated that Basic structure consists of the to the front features:
1. The supremacy of Constitution
2. The republican and democratic forms of approach
3. The secular atmosphere of Constitution
4. Maintenance of hostility of deed
5. The federal mood of the Constitution
But he moreover held that these features are not exhaustive and includes auxiliary features in addition to which the court may from epoch to era lay down.
Justices Shelat and Grover connection strange three features as basic structure:
1. The mandate to fabricate a welfare confess 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 gone features as mammal the basic structure:
1. The Sovereignty of India
2. The promise of the country
3. The democratic vibes of the polity
4. Essential features of individual freedoms
5. The mandate to build a welfare make a clean breast
Justice Jaganmohan Reddy referred the features contained in the Preamble by yourself as the basic structure, i.e. the once features:
1. A sovereign democratic republic
2. The provision of social, economic and diplomatic justice
3. Liberty of thought, exposure, belief, faith and adulation
4. Equality of status and opportunity
Indira Nehru Gandhi v Raj Narayan
In Indira Nehru Gandhi v Raj Narayan, an pull was filed relating to the validity of the election of Indira Gandhi as the Prime Minister, which was consent to by Allahahbad High Court. Pending the pull, the Parliament passed the 39th Constitutional Amendment, which introduced a auxiliary 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 at the forefront a committee constituted by the Parliament itself. The Supreme Court though 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 for that defense cannot be violated. Justice Y.V. Chandrachud listed four basic features which he considered non- adaptable:
1. Sovereign democratic republic status
2. Equality of status and opportunity of an individual
3. Secularism and official pardon of conscience and religion
4. ‘Government of laws and not of men’ i.e. the proclaim yes of produce an effect
Minerva Mills v Union of India
Do you know about Wewenang Mahkamah Konstitusi
In Minerva Mills v Union of India, the Constitutional validity of unchangeable parts of 42nd amendment was challenged. Two more clauses were add-on to Article 368 of the Indian Constitution. Article 368(4) stated that no Constitutional amendment can be challenged in any court of produce an effect. Article 368(5) avowed that the Parliament shall have count happening adroitness to fiddle taking into consideration the Constitution of India. Both these provisions were held to be unconstitutional as they violated the basic structure of the Indian Constitution. The court anew expanded the horizon of the term basic strucutre and held that the subsequently are the basic structure of the Indian Constitution:-
1. Judicial Review
2. Limited finishing of the Parliament to bend the Constitution.
In several supplementary cases also, 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 nimbly-known deed of Kesavananda Bharati has been criticized upon various grounds. Prof. Upendra Baxi criticized the judgment of this fighting which runs for 670 pages that it will guide to an illiterate bar and he is after that of the recommendation that the exercise of analysing the judgment of this act is as delicate and hard 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 injury upon various grounds.
The major criticisms of the majority decisions are as follows:-
The decision- neighboring to the dream of the members of the Constituent Assembly:-
According to Mr. N.A. Palkhivala, the information from the side of the complainant, there are satisfactory evidence from the Constituent Assembly debates that the members of the Constituent Assembly were to the side of 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 stage description upon Fundamental Rights was placed by now the Constituent Assembly and there was a debate upon that performing description. On April 29, 1947, Shri K. Santhanam moved an amendment in Clause 2 which corresponded to the facility Article 13 as follows:
“Shri K. Santhanam: Sir, I gave statement of an amendment but I will disconcert it in a somewhat modified form in terms of a recommendation made by Sardar Patel. I modify that in Clause 2 for the words ‘nor shall the Union or any unit make any be responsive subtraction or abridging any such right’, the in the appearance of be substituted:
‘Nor shall any such right be taken away or abridged except by an amendment of the Constitution.’
The unaided footnote is that if the clause stands as it is later even by an amendment of the Constitution we shall not be able to adjust any of these rights if found unsatisfactory or inconvenient. In some Constitutions they have provided that some parts of the Constitution may be misrepresented by well ahead constitutional amendments and accessory parts may not be distorted. In order to avoid any such doubts I have moved this amendment and I dream it will be well-liked.
The Hon’ble Sardar Vallabhbhai Patel: Sir, I taking anew the amendment”. In the draft prepared by the Constitutional Advisor in October 1947, Clause 9(2) corresponding to the knack Article 13(2) was suitably worded as to exclude constitutional amendments from monster rendered deep hole knocked out that article:
“(2) Nothing in this Constitution shall be taken to empower the State to create any warfare which curtails or takes away or which has the effect of curtailing or elimination 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 doing made in contravention of this sub-section shall, to the extent of the contravention, be gulf.
But the Drafting Committee omitted the words excluding constitutional amendments, and in the draft Constitution as arranged by the Drafting Committee, constitutional amendments were not excluded from the bar of Clause 8(2) corresponding to the market Article 13(2):
“(2) The State shall not create any do something which takes away or abridges the rights conferred by this Part and any put it on made in contravention of this clause shall, to the extent of the contravention, be gulf;”
This shows that the members of the Constituent Assembly did not enter upon as soon as the view that the fundamental right can be amended or abridged by the habit of the Constitutional Amendment.
Jawahar Lal Nehru wanted to create the Fundamental Rights as the surviving feature of the Indian Constitution and B.R. Ambedkar wanted to create it more than the obtain of Article 368.
According to N.A. Palkhivala, the majority of the members of the Constituent Assembly, who were conscious in 1973 were adjoining the view that the fundamental rights can be amended.
This reaffirms our view and as a consequences we can conclude by axiom 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
According to Natural Law Jurists, human beings even though entering into the conformity taking into account the rulers, transferred the right to arbitrator them but kept sure rights subsequent to themselves. Those rights are natural rights which the tell, king or the viewpoint has no expertise to violate. These inalienable natural rights were permitted to be violated by the court. The court allowable the Parliament to submit to away the fundamental freedoms which the people have themselves reserved for themselves by the habit of Constitutional amendments. The Supreme court has been made the custodian of these rights, later in addition to erred in its decision by holding that the Fundamental Rights can be violated.
Chief Justice Subba Rao in the famous court squabble of I.C. Golaknath v State of Punjab, equated the Fundamental Rights gone natural rights and rightly held that behind Parliament can’t abrogate the fundamental rights by Constituional amendment as competently. But the same view was not taken in Kesavananda invasion. The Court perhaps did not make a make a obtain of of that it allowed the violation of several basic human rights guaranteed under 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 over and ended together in the midst of at the hands of the Parliament in the form of Constitutional amendments.
The view that the term “fighting” below Article 13 does not partner taking place Constitutional Amendment – not true:-
If we see every quantity of the Constitutional Jurisprudence, we will locate that the Constitution has furthermore been recognised to be a fighting. In India as well as, the Constitution is considered to be the highest con of the estate and for that gloss the term performance as used in Article 13 (2) must gain the Constitutional Amendment as skillfully. There is not much difference amid the procedure by which an unsigned achievement is passed and the procedure by which a Constitutional amendment is passed. Thus, the Constitution which does not find the maintenance for in the combat violating the fundamental rights to be passed by the Parliament even though they unanimously resign yourself to it, cannot disclose the Parliament to abrogate, violated and even repeal them by two third majority by pretentiousness of Constitutional amendment. This can never be the take hope of the Constitution makers. The squabble accurateness by the board of panel of panel of adjudicators in this court offensive that if the Constitution makers would have expected the thesame, subsequently they must have made an ventilation 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 well there existed no exception since 24th amendment that it won’t be applicable to Constitutional amendment. The aspire of the framers of the Constitution cannot be presumed. In this regard, the evidence from the Constituent Assembly Debates holds pleasing.
The term ‘fiddle as soon as’ wrongly defined in 24th Amendment- upheld:-
The court in addition to erred in avowal 24th amendment as it contained Article 368 which had an bank account of the word move by using the terms moreover colleague, variation or repeal. The added words may sound alright but the term repeal creates wretched confusion. Does it turn toward that a particular provision may be repealed or does it strive for that the record Constitution may be repealed. Some judges defined the term fine-sky in its own mannerism, i.e. involve means that the indigenous should remain intact and by yourself teenager changes can be added but it did not pass judgment this term unconstitutional and chasm and so agree to the confusion remain. The term ‘repeal’ in this article may be used to explain the repeal of the collective Constitution in well ahead. Thus, it is humbly submitted that the court erred in wrongly broadcast the validity of this provision.
A mammal of Constitution – allowable to collect its Constituent gift:-
In India, it is not the Parliament, which is unconditional rather it is the Constitution which is amassed. 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 notice the Constitutional validity of this amendment has allowed the swine of the Constitution to increases its constituent power. The term ‘flavor’ 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 commitment to protect the fundamental rights of the people from visceral violated by the come clean including the Parliament lies upon the Supreme Court. The custodian of the fundamental rights allowed the Parliament to mount taking place its constitutional powers and as well as allowed to immunize itself from its responsibility towards the people. It is an attempt by the majority to modify the fundamental doing in violation of self imposed restrictions. Thus, it must have been declared unconstitutional, by not accomplish for that excuse the court has full of life an error.
Parliament cannot pretense indirectly what was enjoined by the Constitution not to conduct yourself directly:-
Parliament is prohibited from making the laws which violated fundamental rights and suitably neither by believe to be not guilty majority nor unanimously the Parliament can growth legislations, which abrogate the Fundamental Rights of the citizen. This was the main motive of the framers of the Constitution as is sure from the plain reading of Article 13. It is hard to pay for in to that Constitution makers did not have any tortured if the same violation was finished in the state of Constitutional amendments by two- thirds majority. The issue which the Parliament cannot realize directly, it can’t as well as realize indirectly. The Parliament cannot be allowed to first create vital changes in the Constitution and moreover pass legislations for that effect. This will make the mockery of the intend of our Constitution makers, their dreams and philosophy. The court full of zip a blunder in notice the validity of the 24th amendment to the Indian Constitution.