The Keshavananda Bharti case was a landmark Indian Supreme Court case that shaped the basic structure doctrine of the Indian constitution. The case involved a challenge to amendments of the constitution that allowed parliament to amend fundamental rights. The 13 judge bench gave split opinions but ultimately established that while parliament has power to amend any part of the constitution, it cannot alter the basic structure or framework of the constitution. This established judicial review of constitutional amendments and limited parliament's amending power. The case involved many important issues and helped define principles like parliamentary sovereignty versus judicial review, and the limits of constitutional amendment.
According to Bhagwati, J., Article 21 “embodies a constitutional value of supreme importance in a democratic society.” Iyer, J., has characterized Article 21 as “the procedural magna carta protective of life and liberty.
This right has been held to be the heart of the Constitution, the most organic and progressive provision in our living constitution, the foundation of our laws.
Article 21 can only be claimed when a person is deprived of his “life” or “personal liberty” by the “State” as defined in Article 12. Violation of the right by private individuals is not within the preview of Article 21.
The Advocates Act, 1961 is an act to consolidate and amend the law relating to legal practitioners and to provide for the constitution of the Bar Councils and an All-India Bar. It was enacted by the Parliament in the Twelfth Year of the Republic of India.
The Advocates Act,1961 provides for the constitution of two types of councils:
State Bar Council-Section 3
Bar Council of India-Section 4
The Bar Council as well as the State Bar Councils have various functions to perform
Case Analysis on Kehwananda Bharti V/S State of Kerala and ANR, On 24th April...ijtsrd
Exactly forty years ago, on April 24, 1973, Chief Justice Sikri and 12 Judges of the Supreme Court assembled to deliver the most important judgement in its history. The case of Kesaavananda Bharti vs State of Kerala had been heard for 68 days, the arguments commencing on October 31, 1972, and ending on March 23,1973. The hard work and scholarship that had gone into the preparation of this case was breathtaking. Literally hundreds of cases had been citied and the then Attorney-General had made a comparative chart analysing the provisions of the Constitutions of 71 different countries. The 703-page judgement revealed a sharply divided court and, by a wafer-thin majority of 7:6, it was held that Parliament could amend any part of the Constitution so long as it did not let or amend "the basic structure or essential features of the Constitution." This was the inherent and implied limitation on the amending power of Parliament This basic structure doctrine, as future events showed, saved Indian democracy and Kesavananda Bharti will always occupy a hollowed place in our constitutional history. The Kesavananda Bharti case was the culmination of a serious conflict between the judiciary and the government, then headed by Mrs. Indira Gandhi. In 1967, the Supreme court took an extreme view, in the Golak Nath case, that Parliament could not amend or alter any fundamental right. Two years later, Indira Gandhi nationalized 14 major banks and the paltry compensation was made payable in bonds that matured after 10 years. This was struck down by the Supreme Court, although it upheld the right of Parliament to nationalize banks and the other industries. A year later, in 1970, Mrs. Gandhi abolished the Privy Purses. This was a constitutional betrayal of the solem assurance given by sardar Patel to all the erstwhile rules. This was also struck down by the late Madhavrao Scindia , who later joined the congress party. The Kesavanada case had its roots in Gokalnath vs State of Punjab, in which the Supreme Court in 11-member bench, ruled that Parliament could not curtail any fundamental right guaranteed under the constitution were unrestricted and unlimited. Two years after Golaknath, Indira nationalized a big portion of the banking and unlimited. Two years after Golaknath, Indira nationalized a big portion of the banking system but he compensation to exiting shareholders was paltry, in fact, almost extortionate. Akanksha Choukse"Case Analysis on Kehwananda Bharti V/S State of Kerala and ANR, On 24th April, 1973" Published in International Journal of Trend in Scientific Research and Development (ijtsrd), ISSN: 2456-6470, Volume-2 | Issue-5 , August 2018, URL: http://www.ijtsrd.com/papers/ijtsrd17118.pdf http://www.ijtsrd.com/management/law-and-management/17118/case-analysis-on-kehwananda-bharti-vs-state-of-kerala-and-anr-on-24th-april-1973/akanksha-choukse
● Article - 16 helps us to establish a welfare state. There are a lot of disadvantaged and backward classes is our society - who have faced discrimination since time immemorial and still led down because of social stigmas. Article - 16 also helps us to uplift these disadvantaged sections by giving them Equal Opportunities in Employment and Appointment.
● Article -16 deals with very important question of reservation.
● At the time of Constitutional Assembly Debate on Article - 16 ,
Dr. B.R. Ambedkar referred Reservation as “Compensatory Benefits”.
● Under Article -16, the guarantee against discrimination is limited to employment and appointment under the State.
● This right is available to citizens only.
● Article 15 is more general and deals with all cases of discrimination which do not fall under Article -16.
The slides relate to Part - III of the Indian Constitution i.e. FUNDAMENTAL RIGHTS. It elaborates on the violation of fundamental rights under the constitution. Useful for Law students and Professionals.
The constitution of India is considered to be the ‘General Will’ of the people of India. It is a document of immense importance.
It is not only is the basic law of the land but the living organic by which the other laws are to be created as per the requirement of the nation.
The life of a nation is dynamic, living, and organic its political, social and economic conditions are always subject to change.
Therefore, a constitution drafted in one era and in a particular circumstance may be found to be inadequate in another era in a different context.
It becomes necessary therefore to have machinery or some process by which the constitution may be adopted from time to time as per the contemporary needs of the nation. Such changes may be brought by different ways including formal method of amendment contained in Article 368 of the constitution. Article 368 of the constitution does not prescribe any express limitation upon the parliament’s amending power.
According to Bhagwati, J., Article 21 “embodies a constitutional value of supreme importance in a democratic society.” Iyer, J., has characterized Article 21 as “the procedural magna carta protective of life and liberty.
This right has been held to be the heart of the Constitution, the most organic and progressive provision in our living constitution, the foundation of our laws.
Article 21 can only be claimed when a person is deprived of his “life” or “personal liberty” by the “State” as defined in Article 12. Violation of the right by private individuals is not within the preview of Article 21.
The Advocates Act, 1961 is an act to consolidate and amend the law relating to legal practitioners and to provide for the constitution of the Bar Councils and an All-India Bar. It was enacted by the Parliament in the Twelfth Year of the Republic of India.
The Advocates Act,1961 provides for the constitution of two types of councils:
State Bar Council-Section 3
Bar Council of India-Section 4
The Bar Council as well as the State Bar Councils have various functions to perform
Case Analysis on Kehwananda Bharti V/S State of Kerala and ANR, On 24th April...ijtsrd
Exactly forty years ago, on April 24, 1973, Chief Justice Sikri and 12 Judges of the Supreme Court assembled to deliver the most important judgement in its history. The case of Kesaavananda Bharti vs State of Kerala had been heard for 68 days, the arguments commencing on October 31, 1972, and ending on March 23,1973. The hard work and scholarship that had gone into the preparation of this case was breathtaking. Literally hundreds of cases had been citied and the then Attorney-General had made a comparative chart analysing the provisions of the Constitutions of 71 different countries. The 703-page judgement revealed a sharply divided court and, by a wafer-thin majority of 7:6, it was held that Parliament could amend any part of the Constitution so long as it did not let or amend "the basic structure or essential features of the Constitution." This was the inherent and implied limitation on the amending power of Parliament This basic structure doctrine, as future events showed, saved Indian democracy and Kesavananda Bharti will always occupy a hollowed place in our constitutional history. The Kesavananda Bharti case was the culmination of a serious conflict between the judiciary and the government, then headed by Mrs. Indira Gandhi. In 1967, the Supreme court took an extreme view, in the Golak Nath case, that Parliament could not amend or alter any fundamental right. Two years later, Indira Gandhi nationalized 14 major banks and the paltry compensation was made payable in bonds that matured after 10 years. This was struck down by the Supreme Court, although it upheld the right of Parliament to nationalize banks and the other industries. A year later, in 1970, Mrs. Gandhi abolished the Privy Purses. This was a constitutional betrayal of the solem assurance given by sardar Patel to all the erstwhile rules. This was also struck down by the late Madhavrao Scindia , who later joined the congress party. The Kesavanada case had its roots in Gokalnath vs State of Punjab, in which the Supreme Court in 11-member bench, ruled that Parliament could not curtail any fundamental right guaranteed under the constitution were unrestricted and unlimited. Two years after Golaknath, Indira nationalized a big portion of the banking and unlimited. Two years after Golaknath, Indira nationalized a big portion of the banking system but he compensation to exiting shareholders was paltry, in fact, almost extortionate. Akanksha Choukse"Case Analysis on Kehwananda Bharti V/S State of Kerala and ANR, On 24th April, 1973" Published in International Journal of Trend in Scientific Research and Development (ijtsrd), ISSN: 2456-6470, Volume-2 | Issue-5 , August 2018, URL: http://www.ijtsrd.com/papers/ijtsrd17118.pdf http://www.ijtsrd.com/management/law-and-management/17118/case-analysis-on-kehwananda-bharti-vs-state-of-kerala-and-anr-on-24th-april-1973/akanksha-choukse
● Article - 16 helps us to establish a welfare state. There are a lot of disadvantaged and backward classes is our society - who have faced discrimination since time immemorial and still led down because of social stigmas. Article - 16 also helps us to uplift these disadvantaged sections by giving them Equal Opportunities in Employment and Appointment.
● Article -16 deals with very important question of reservation.
● At the time of Constitutional Assembly Debate on Article - 16 ,
Dr. B.R. Ambedkar referred Reservation as “Compensatory Benefits”.
● Under Article -16, the guarantee against discrimination is limited to employment and appointment under the State.
● This right is available to citizens only.
● Article 15 is more general and deals with all cases of discrimination which do not fall under Article -16.
The slides relate to Part - III of the Indian Constitution i.e. FUNDAMENTAL RIGHTS. It elaborates on the violation of fundamental rights under the constitution. Useful for Law students and Professionals.
The constitution of India is considered to be the ‘General Will’ of the people of India. It is a document of immense importance.
It is not only is the basic law of the land but the living organic by which the other laws are to be created as per the requirement of the nation.
The life of a nation is dynamic, living, and organic its political, social and economic conditions are always subject to change.
Therefore, a constitution drafted in one era and in a particular circumstance may be found to be inadequate in another era in a different context.
It becomes necessary therefore to have machinery or some process by which the constitution may be adopted from time to time as per the contemporary needs of the nation. Such changes may be brought by different ways including formal method of amendment contained in Article 368 of the constitution. Article 368 of the constitution does not prescribe any express limitation upon the parliament’s amending power.
The dispute over the Constitution's "fundamental structure," which had been dormant in the archives of India's constitutional history for the last decade of the twentieth century, has resurfaced in the public sphere.
Violation of the doctrine of separation of powers and accountability of the j...Kajal Priya
The constitution regulates the structures and functions of the principle organs of the Government. It also regulates relationship between the institutions of the government by setting out balance of power among them. Separation of power is a means to balance the power among these three branches of government. The three branches are Legislative, Executive and Judiciary.
Government give separate powers to all the three branches but at some point the separation of power by government is violated because it is the need of situation. For example; during the time of some internal aggression or attack by any other country state or national emergency has to be applied among the state or country. This also includes the violation of power because during emergency president rule applied on the state or country, state government cannot rule during the emergency. But, in this situation the violation has not been done intentionally therefore this is not called the violation of Doctrine of separation of power. This can be measured by the Check and Balance theory.
The modern design of the doctrine of separation of powers is to be found in the constitutional theory of John Locke (1632-1704).He wrote in his second treaties of Civil Government as follows: “It may be too great a temptation for the humane frailty, apt to grasp at powers, for the same persons who have power of making laws, to have also in their hands the power to execute them, whereby they may exempt themselves from the law, both in its making and execution to their own private advantage” .
Any act done by Executive, Legislative or Judiciary cannot violate the Doctrine of separation of power because on each of these branches there are other two branches to check their acts and decisions given by them. Every branch has to give explanation about their each and every act and decision. Any wrong, unconstitutional or null and void decision taken by them can cause the impeachment order or arbitrary action against them.
This paper talks about the Doctrine of Separation of powers, Definition of Separation of Power, from where this doctrine has been adopted, violation of doctrine of separation of power, steps taken by government to control the violation of Doctrine of SOP . It also discuss the articles under which all the three branches of the government have their separate power. Role of all the three branches of government, relationship between Doctrine of SOP and Judicial Accountability. This paper will also discuss the relationship among all three branches of the Government and accountability of judiciary.
Key words: - Doctrine of SOP, Relationship between Branches of Government (Executive, legislative and Judiciary), Article 53, 245, 246 and other related, Check and balance theory, Accountability of Judiciary.
Recently there was a controversy over the transfer of the Chief Justice of the Madras High Court, Justice Vijaya Kamlesh Tahilramani, to the Meghalaya High Court. Justice Tahilramani submitted her resignation after her request for reconsideration of the transfer was rejected by the Collegium headed by the Chief Justice of India (CJI), Ranjan Gogoi, and four senior-most judges of the Supreme Court.
A "File Trademark" is a legal term referring to the registration of a unique symbol, logo, or name used to identify and distinguish products or services. This process provides legal protection, granting exclusive rights to the trademark owner, and helps prevent unauthorized use by competitors.
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ALL EYES ON RAFAH BUT WHY Explain more.pdf46adnanshahzad
All eyes on Rafah: But why?. The Rafah border crossing, a crucial point between Egypt and the Gaza Strip, often finds itself at the center of global attention. As we explore the significance of Rafah, we’ll uncover why all eyes are on Rafah and the complexities surrounding this pivotal region.
INTRODUCTION
What makes Rafah so significant that it captures global attention? The phrase ‘All eyes are on Rafah’ resonates not just with those in the region but with people worldwide who recognize its strategic, humanitarian, and political importance. In this guide, we will delve into the factors that make Rafah a focal point for international interest, examining its historical context, humanitarian challenges, and political dimensions.
In 2020, the Ministry of Home Affairs established a committee led by Prof. (Dr.) Ranbir Singh, former Vice Chancellor of National Law University (NLU), Delhi. This committee was tasked with reviewing the three codes of criminal law. The primary objective of the committee was to propose comprehensive reforms to the country’s criminal laws in a manner that is both principled and effective.
The committee’s focus was on ensuring the safety and security of individuals, communities, and the nation as a whole. Throughout its deliberations, the committee aimed to uphold constitutional values such as justice, dignity, and the intrinsic value of each individual. Their goal was to recommend amendments to the criminal laws that align with these values and priorities.
Subsequently, in February, the committee successfully submitted its recommendations regarding amendments to the criminal law. These recommendations are intended to serve as a foundation for enhancing the current legal framework, promoting safety and security, and upholding the constitutional principles of justice, dignity, and the inherent worth of every individual.
WINDING UP of COMPANY, Modes of DissolutionKHURRAMWALI
Winding up, also known as liquidation, refers to the legal and financial process of dissolving a company. It involves ceasing operations, selling assets, settling debts, and ultimately removing the company from the official business registry.
Here's a breakdown of the key aspects of winding up:
Reasons for Winding Up:
Insolvency: This is the most common reason, where the company cannot pay its debts. Creditors may initiate a compulsory winding up to recover their dues.
Voluntary Closure: The owners may decide to close the company due to reasons like reaching business goals, facing losses, or merging with another company.
Deadlock: If shareholders or directors cannot agree on how to run the company, a court may order a winding up.
Types of Winding Up:
Voluntary Winding Up: This is initiated by the company's shareholders through a resolution passed by a majority vote. There are two main types:
Members' Voluntary Winding Up: The company is solvent (has enough assets to pay off its debts) and shareholders will receive any remaining assets after debts are settled.
Creditors' Voluntary Winding Up: The company is insolvent and creditors will be prioritized in receiving payment from the sale of assets.
Compulsory Winding Up: This is initiated by a court order, typically at the request of creditors, government agencies, or even by the company itself if it's insolvent.
Process of Winding Up:
Appointment of Liquidator: A qualified professional is appointed to oversee the winding-up process. They are responsible for selling assets, paying off debts, and distributing any remaining funds.
Cease Trading: The company stops its regular business operations.
Notification of Creditors: Creditors are informed about the winding up and invited to submit their claims.
Sale of Assets: The company's assets are sold to generate cash to pay off creditors.
Payment of Debts: Creditors are paid according to a set order of priority, with secured creditors receiving payment before unsecured creditors.
Distribution to Shareholders: If there are any remaining funds after all debts are settled, they are distributed to shareholders according to their ownership stake.
Dissolution: Once all claims are settled and distributions made, the company is officially dissolved and removed from the business register.
Impact of Winding Up:
Employees: Employees will likely lose their jobs during the winding-up process.
Creditors: Creditors may not recover their debts in full, especially if the company is insolvent.
Shareholders: Shareholders may not receive any payout if the company's debts exceed its assets.
Winding up is a complex legal and financial process that can have significant consequences for all parties involved. It's important to seek professional legal and financial advice when considering winding up a company.
NATURE, ORIGIN AND DEVELOPMENT OF INTERNATIONAL LAW.pptxanvithaav
These slides helps the student of international law to understand what is the nature of international law? and how international law was originated and developed?.
The slides was well structured along with the highlighted points for better understanding .
3. HOLDINGS:-
There are certain Principal within the framework of Indian Constitution
which are inviulable and hence cannot be amended by the
Parliament.These Principles were commonly termed as Basic structure.
Case opinion
MAJORITY sikri C.J Hedge and
Mukherjee,JJ; shelat and
Grover,JJ; Jaganmohan
Reddy,J; Khanna,J.
DISSENT RAY J.; Palekar J.; Mathew J.;
Beg J.; DwivediJ.; Chandrachud J.
4. LAWS APPLIED:- Constitution of India , criminal procedure Code (Crpc), India
evidence Act , Indian contract Act, 1872
“Keshvananda Bharati is the case Which saved the Indian democracy
; thanks to Shri keshvananda bharti eminent, jurist Nanabhoy
Palikhiwala and the seven judges who were in the majority”
The Hindu- in April 2013,on the occasion of the 40th anniversary of the
judgement.
5. HEAD NOTES:-
Constitution of India,Art 368 [ Before amendment of 24th amendment] scope
contains both power and procedure to amend Constitution-All articles
including those relating to fundamental rights can be amended [AIR 1967
2C 1643, overruled provided that the basic structure and framework of the
Constitution are not altered -basic structure and framework meaning explain
and illustrated-” Amendment”- meaning explained.
6. Case About :-
• Keshvananda Bharati, founder of head of “Edneer mutt”-a Hindu
mutt situated in Edneer,a village in kasargad District of Kerala l,
challenged the Kerala government attempts,under two state land
reform acts,to improve restrictions on the management of its
property.
• Kerala government used it’s authority under Article 21, Swans
challenged the government under Article 26 i.e,Right to manage
own religion owned property without government interference.
7. State invoked authority under Article 21 to implement
Kerala land Reform Act,1963
Vs
State invoked authority under Article 21 to implement
Kerala land Reform Act,1963
Vs
Article 26:Right to manage religious owned property
without government interference
• State invoked authority under Article 21 to implement Kerala,Land reform
Act ,1963
• Vs
• Article 26:-Right to manage religious owned property without government
interference
Also in the case,to the validity of 24th,25th and 29th amendment to the
Constitution of India was challenged.The main question related to the
nature, extend and scope of amending power of the Parliament Under the
Constitution.
The views of the majority were as follows:-
• L.C Golak Nath v. State of Punjab, AIR 1967 SC 1643 [which had held the
8. Amending power of parliament] was overruled.
• The Constitution [twenty-fourth Amendment] Act,1971[giving power to parliament to
amend any part of the Constitution],was valid.
• Article 368 ,as amended ,was valid but it did not confer power on the Parliament to
alter the basic structure or framework of the Constitution.The court , however did
not spell out in any exhaustive manner as to what the basic structure/framework
was expect that same judges gave a few examples.
• The amendment of Article368(4) excluding judicial review of a Constitutional
amendment was unconstitutional.
• The amendment of Article 31 C containing the words “and no law containing a
declaration that it is for giving effect to such policy shall ground that it doesn’t have
effect to such policy”was held invalid.
9. ISSUES:-
• Whether Constitutional amendment as per Article 368 applicable fundamental
right also
• Whether 24th amendment Act 1971 is valid
• Whether section 2(a),2(b) and 3 of 25th amendment is valid.
• Whether 29th amendment Act 1971 is valid.
10. FACTS OF THE CASE :-
In February 1970 Swami keshvananda Bharati senior plaintiff and head of
“Edneer mutt”-a Hindu mutt situated in Edneer,a village in kasargod district of
Kerala, challenged the Kerala government attempts ,under two state land
reform acts ,to improve restrictions on the management of its property.
Although the state invoked it’s authority under Article 22, a noted Indian jurist
Nanabhoy Palkhiwala , convinced Swami into filing his petition under Article
26, concerning the right to manage religiously owned property without
government interference. Even though the hearings consumed five months ,the
outcome would profoundly affect India’s democratic processes.
11. Judgment:-
The Supreme Court reviewed the decision in Golaknath v. 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 11expression
judgements. Which agreed on some points and differed on others. Nanabhoy
Palkhiwala assisted by Fali Nariman, presented the case against the government in
both cases.
Upholding the validity of clause (4) of article 13 and a Corresponding provision in
Article 368(3), inserted by the 24th amendment, the Court settled in favour of the view
that Parliament has the power to amend the fundamental rights also. However the
court affirmed another proposition also asserted in the Golaknath case by ruling that
the expression “amendment” of the Constitution in article 368 means any addition or
change in any of the provision of the constitution within the board contours of the
preamble and the constitution to carry out the objectives
12. In the preamble and the directive principles. Applied to fundamental rights, it
would be that while fundamental abridgement of fundamental rights could be
effected 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.
The nine signatories to the statement were SM Sikrs, and justices J.m shelot
,K.s Hedge ,A.N Grover,B. Jaganmohan Reddy ,D.h.Palekar,HR Khana ,A.k
Mukherjee and Yeshwant Vishnu chandruchud.
4 judges did not Sign A.N Ray,K.K Mathew ,M.H Beg and S.N Dwivedi.
13. Judges opinion:-
Chief Justice Sikri sir stated that:- in in the constitution the word ‘amendment’ or ‘amend’ has
been used in various places to mean different things.In same articles the word ‘amendment’
in the context have a a wide meaning and in the another context it has a narrow meaning.
• In view of the great variation of the phrases used all through the the constitution it follows
that word “amendment” must derive its Article 368 and the rest of the provision of the
Constitution
• Reading the preamble, the fundamental importance of the freedom of the the individual,
indeed it’s inalienability and the importance of the economic, social and political justice
mentioned in the preamble ,the importance of directive principles, the non inclusion in
Article 52,53 and various other provisions ab irrespectiable conclusion emerges that it was
not the intention to use word in the widest sense. It was the common Understanding that
fundamental rights would remain in substance as they are
14. Remain in the substance as they are and they would not be amended out of existence.
• The true position is that every provision of the Constitution can be amended provided
in the result the basic foundation and structure of the Constitution remains the
same.The basic structure may be said to consist the following features.
1. Supermacy of the Constitution
2. Republican and democratic form of government
3. Secular character of the Constitution
4. Separation of powers between the legislative,the executive and the judiciary
5. Federal character of the Constitution
Justice Hedge and justice Mukherjee state that the parliament has no power to
abrogate or emasculate the basic elements or fundamental features of the Constitution
such as the sovereignty of India, the democratic character of our polity
15. The unity of the country ,the essential features of the individual freedom secured to the
citizens. Nor has the parliament the power to revoke the mandate to build a welfare
state and egalitarian society. These limitations are are only illustrative and not
exhaustive. Despite these limitations however, there can be no question that the
amending power is a wide power and it reaches every article and every part of the
constitution.
Justice Jaganmohan Reddy stated that the word ‘amendment’ in article 368 doesn’t
Include ‘repeal’. Parliament could amend Article 368 and Article 13 and also all the
fundamental rights and though the power of amendment is wide, it is not wide enough
to include the power of totally abrogating or emasculating or damaging any of the
fundamental rites or the essential elements in the basic structure of the constitution or
of destroying the identity of the Constitution within these limits, parliament can amend
every article of the Constitution.
16. Justice Ray stated that “The power to amend in wide and unlimited.The power to
amend means the power to, alter or repeal any provision of the Constitution.
There can be or is no distinction between essential and inessential features of
the Constitution to raise any impediment to amendment of alleged essential
features.”
Justice palekar said that “If the doctrine of unamendability of the core of essential
features is accepted,it will mean that we add some such provision below Article
368.”Nothing in the above article will be deemed to authorise an amendment of
the Constitution ,which has the effect of damaging or destroying tha core of the
essential features,basic principles and fundamental elements of the Constitution
as may be determined by the courts”.This is quite impermissible.
17. • The amendment of article 13 does not go beyond the limits laid down because
parliament cannot even after the amendment, abrogate or authorise abrogation
or the taking away of fundamental rights. After the the amendment now a law
which has the effects of merely abridging a right while remaining within the
limits laid down would not be liable to be struck down.The 24th amendment as
so interpreted is valid
18. CONCLUSION:-
This case became a a landmark decision of the supreme court of India that
outlined the basic structure doctrine of the constitution.
After a long discussion and by hearing the judgements, issues and facts and
opinion of the different judges ,we hold that:-
1. A law that abrogates or abridges rights guaranteed by part III of the
constitution violate the basic structure doctrine or it may not. If former is the
consequence of law whether by amendment of any article of part III or by an
insertion in the ninth Schedule such law will have to be invalidated in
exercise of judicial review power of the court . The validity or invainvalid
would be tested on the principle laid down in this judgement
19. 2. The majority judgement in kesavananda Bharati case read with Indira
Gandhi’s case requires the validity of each now Constitutional amendment to be
judged on its oven merits. The actual effect and impact of the law on the rights
guaranteed under part III has to be taken into account for determining whether
or not it destroys basic structure.The impact test would determine the validity of
the challenge.
3. All amendment to the constitution made on or after 24th April 1973 by which
the ninth schedule is a amended by inclusion of various law there in shall have
to be tested on the touchstone of the basic or essential feature of the
Constitution as reflected in article 21 read with Article 14 ,article 19 and the
principles underlying then. To put it differently even though n a act is put in the
ninth schedule by a Constitutional amendment is provision
20. would be open to attack on the ground that they destroy or damage the basic structure
if the fundamental rights or rights taken away or abrogated pertains or pertain to the
basic structure.
4. Justification for conferring protection, not blanket protection on the laws included in
the ninth schedule by constitutional amendments shall be a matter of constitutional
judication by examining the nature and extent of infraction of a fundamental right by a
statute,sought to be Constitutionally protected,and on the touchstone of the basic
structure doctrine as reflected in Article 21 read with Article 14 and Article 19 by
application of the “right test” and the “essence of the right” test taking the synaptic view
of the Articles in part III as held in Indira Gandhi’s case. Applying the above tests to the
ninth schedule laws, if the infraction affects the basic structure then such a laws will not
get the protection not ninth schedule.
21. 5. The validity of any ninth schedule has already been upheld by this court, it
would not be open to challenge such law again on the principles declared by this
judgement.However if a law held to be violative of any rights in part III is
subsequently in seperated in the ninth schedule after 24th April 1973 such a
violation infraction shall be open to challenge on the ground that is destroyed or
damages the basic structure as indicated in article 21 read with Article 14 ,article
19 and the principles underlying there under.
6. Action taken and transactions finalized as a result of the impugned Acts shall
not be open to challenge.