Cj Shelat, J. Mukherjea, B. Chandrachud, Y. Referred Cases: 1.
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Free for one month and pay only if you like it. Supreme Court of India Kesavananda Bharati Cj Shelat, J. Mukherjea, B. Chandrachud, Y. Respondent: State of Kerala and Anr.
Decided On: Sikri, C. Grover, A. Ray, D. Palekar, H. Khanna, J. Shelat, K. Mathew, K. Hegde M. Beg, P. Jaganmohan Reddy, S. Dwivedi and Y. Chandrachud, JJ. I propose to divide my judgment into eight parts. All the six writ petitions involve common questions as to the validity of the Twenty- fourth, Twenty-fifth and Twenty-ninth Amendments of the Constitution.
I may give a few facts in Writ petition No. Writ Petition No. He further prayed for an appropriate writ or order to issue during the pendency of the petition. This Court issued rule nisi on March 25, The petitioner filed an application for permission to urge additional grounds and to impugn the Constitutional validity of the Kerala Land Reforms Amendment Act Kerala Act No.
State of Kerala  S. Narayanan Nair v. State of Kerala A. The effect of the Twenty-ninth Amendment of the Constitution was that it inserted the following Acts in the Ninth Schedule to the Constitution: The petitioner then moved an application for urging additional grounds and for amendment of the writ petition in order to challenge the above Constitutional amendments. The Court allowed the application for urging additional grounds and for amendment of the writ petition on August 10, and issued notices to the Advocates-General to appear before this Court and take such part in the proceedings as they may be advised.
When the case was placed before the Constitutional bench, it referred this case to a larger bench to determine the validity of the impugned Constitutional amendments. Similar orders were passed in the other writ petitions.
The larger bench was accordingly constituted. It was then felt that it would be necessary to decide whether I. Golak Nath v. State of Punjab  2 S. The respondents claim that Parliament can abrogate fundamental rights such as freedom of speech and expression, freedom to form associations or unions, and freedom of religion.
They claim that democracy can even be replaced and one-party rule established. Indeed, short of repeal of the Constitution, any form of Government with no freedom to the citizens can be set up by Parliament by exercising its powers under Article On the side of the petitioners it is urged that the power of Parliament is much more limited.
The petitioners say that the Constitution gave the Indian citizen freedoms which were to subsist for ever and the Constitution was drafted to free the nation from any future tyranny of the representatives of the people.
It is this freedom from tyranny which, according to the petitioners, has been taken away by the impugned Article 31C which has been inserted by the Twenty-fifth Amendment.
If Article 31C is valid, they say, hereafter Parliament and State Legislatures and not the Constitution, will determine how much freedom is good for the citizens. These cases raise grave issues.
But however grave the issues may be, the answer must depend on the interpretation of the words in Article , read in accordance with the principles of interpretation which are applied to the interpretation of a Constitution given by the people to themselves. I must interpret Article in the setting of our Constitution, in the background of our history and in the light of our aspirations and hopes, and other relevant circumstances.
No other Constitution in the world is like ours. No other Constitution combines under its wings such diverse peoples, numbering now more than millions, with different languages and religions and in different stages of economic development, into one nation, and no other nation is faced with such vast socio-economic problems.
I need hardly observe that I am not interpreting an ordinary statute, but a Constitution which apart from setting up a machinery for government, has a noble and grand vision.
The vision was put in words in the Preamble and carried out in part by conferring fundamental rights on the people. The vision was directed to be further carried out by the application of directive principles. Before proceeding with the main task, it is necessary to ask : what was decided in I. In order to properly appreciate that case, it is necessary first to have a look at Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar  S. State of Rajasthan  1 S.
The main arguments relevant to the present case which were advanced in support of the petition before this Court were summarised by Patanjali Sastri, J. 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. The bill in the present case having been admittedly amended in several particulars during its passage through the House, the Amendment Act cannot be said to have been passed in conformity with the procedure prescribed in Article Fifthly, the Amendment Act , in so far as it purports to take away or abridge the rights conferred by Part III of the Constitution, falls within the prohibition of Article 13 2.
As stated in the head note, this Court held: The provisional Parliament is competent to exercise the power of amending the Constitution under Article The fact that the said article refers to the two Houses of the Parliament and the President separately and not to the Parliament, does not lead to the inference that the body which is invested with the power to amend is not the Parliament but a different body consisting of the two Houses.
The words "all the powers conferred by the provisions of this Constitution on Parliament" in Article are not confined to such powers as could be exercised by the provisional Parliament consisting of a single chamber, but are wide enough to include the power to amend the Constitution conferred by Article I may mention that Mr.
Seervai contends that the conclusion just mentioned was wrong and that the body that amends the Constitution under Article is not Parliament. The Court further held: The view that Article is a complete code in itself in respect of the procedure provided by it and does not contemplate any amendment of a Bill for amendment of the Constitution after it has been introduced, and that if the Bill is amended during its passage through the House, the Amendment Act cannot be said to have been passed in conformity with the procedure prescribed by Article and would be invalid, is erroneous.
Although "law" must ordinarily include Constitutional law there is a clear demarcation between ordinary law which is made in the exercise of legislative power and Constitutional law, which is made in the exercise of constituent power. In the context of Article 13 , "law" must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in the exercise of constituent power with the result that Article 13 2 does not affect amendments made under Article The only contention before the Court was that "since it appears that the powers prescribed by Article are likely to be affected by the intended amendment of the provisions contained in Part III, the bill introduced for the purpose of making such an amendment, must attract the proviso, and as the impugned Act has admittedly not gone through the procedure prescribed by the proviso, it is invalid".
According to Gajendragadkar, C. The Chief Justice came to the conclusion that "as a matter of construction, there is no escape from the conclusion that Article provides for the amendment of the provisions contained in Part III without imposing on Parliament an obligation to adopt the procedure prescribed by the proviso.
He expressed his agreement with the reasoning of Patanjali Sastri, J. He further held that when Article confers on Parliament the right to amend the Constitution, it can be exercised over all the provisions of the Constitution.
He thought that "if the Constitution-makers had intended that any future amendment of the provisions in regard to fundamental rights should be subject to Article 13 2 , they would have taken the precaution of making a clear provision in that behalf.
He seemed to be in agreement with the following observations of Kania, C. Gopalan v. The State of Madras  S. Even in their absence if any of the fundamental rights was infringed by any legislative enactment, the Court has always the power to declare the enactment, to the extent it transgresses the limits, invalid.
He was of the view that even though the relevant provisions of Part III can be justly described as the very foundation and the cornerstone of the democratic way of life ushered in this country by the Constitution, it cannot be said that the fundamental rights guaranteed to the citizens are eternal and inviolate in the sense that they can never be abridged or amended. According to him, it was legitimate to assume that the Constitution-makers visualised that Parliament would be competent to make amendments in these rights so as to meet the challenge of the problems which may arise in the course of socio-economic progress and development of the country.
Hidayatullah, J. He further observed: The meaning of Article 13 thus depends on the sense in which the word "law" in Article 13 2 is to be understood. If an amendment can be said to fall within the term "law", the Fundamental Rights become "eternal and inviolate" to borrow the language of the Japanese Constitution. Article 13 is then on par with Article 5 of the American Federal Constitution in its immutable prohibition as long as it stands.
According to him "Our Preamble is more akin in nature to the American Declaration of Independence July 4, then to the preamble to the Constittuion of the United States. Is it to be imagined that a two-thirds majority of the two Houses at any time is all that is necessary to alter it without even consulting the States? 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 He held: What Article does is to lay down the manner of amendment and the necessary conditions for the effectiveness of the amendment The Constitution gives so many assurances in Part III that it would be difficult to think that they were the play-things of a special majority.
To hold this would mean prima facie that the most solemn parts of our Constitution stand on the same footing as any other provision and even on a less firm ground than one on which the articles mentioned in the proviso stand. Mudholkar, J. He thought: The language of Article is plain enough to show that the action of Parliament in amending the Constitution is a legislative act like one in exercise of its normal legislative power.
The only difference in respect of an amendment of the Constitution is that the Bill amending the Constitution has to be passed by a special majority here I have in mind only those amedments which do not attract the proviso to Article But it would indeed be strange that rights which are considered to be fundamental and which include one which is guaranteed by the Constitution vide Article 32 should be more easily capable of being abridged or restricted than any of the matters referred to in the proviso to Article some of which are perhaps less vital than fundamental rights.
It is possible, as suggested by my learned brother, that Article merely lays down the procedure to be followed for amending the Constitution and does not confer a power to amend the Constitution which, I think, has to be ascertained from the provision sought to be amended or other relevant provisions or the preamble.
Later, he observed: Above all, it formulated a solemn and dignified preamble which appears to be an epitome of the basic features of the Constitution. Can it not be said that these are indica of the intention of the Constituent Assembly to give a permanency to the basic features of the Constitution? He posed a further question by observing: It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of Article ?
Why Kesavanand Bharti Case of 1973 is famous?
Free for one month and pay only if you like it. Supreme Court of India Kesavananda Bharati Cj Shelat, J. Mukherjea, B. Chandrachud, Y.
Kesavananda Bharati Vs. State of Kerala – Case Summary
Why Kesavanand Bharti Case of is famous? The judgment also defined the extent to which Parliament could restrict the right to property, in pursuit of land reform and the redistribution of large landholdings to cultivators, overruling previous decisions that suggested that the right to property could not be restricted. The case was a culmination of a series of cases relating to limitations to the power to amend the Indian constitution. The 42nd amendment is thought to be the immediate and most direct fall out of the judgement. 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 is the judge-made principle that certain features of the Constitution of India are beyond the limit of the powers of amendment of the Indian Parliament.
Originally Answered: What is the Kesavananda Bharati case and why is it famous? The question that the case raised was whether fundamental rights can be altered or not? One needs to understand that the judiciary was not always against the way the government functions as it is today. The India which was born in did not have the bandwidth to dwell on a lot of things just after independence. That India had to mature.