This document summarizes and analyzes the Indian Supreme Court case Kesavananda Bharati v. State of Kerala, which established that Parliament does not have unlimited power to amend the Constitution and cannot alter its "basic structure". The document discusses how the case was initially seen as an extension of an earlier case, Golak Nath v. State of Punjab, which jurists had criticized. However, the document argues that Kesavananda acquired more legitimacy after a subsequent case during the Emergency period, where the 39th Amendment withdrew certain election disputes from judicial review. While Kesavananda was initially questionable, this later experience demonstrated the potential for abuse if Parliament's amendment power was truly unlimited.
This document provides details about the Parliament and State Legislatures in India as per the Constitution. It discusses the composition and functions of the Indian Parliament which consists of the President and two houses - Council of States and House of the People. It describes the composition of both houses and their powers. It also compares the upper houses under different constitutions and discusses qualifications and disqualifications of members of Parliament. The document then examines provisions related to Chairman, Deputy Chairman, Speaker and Deputy Speaker of both houses and circumstances leading to vacating of these offices.
This document discusses services under the union and state governments in India. It covers several key points:
1) Civil services fall under both the union and state governments, with defense services only falling under the union. These services are regulated by laws and rules to govern recruitment and conditions of service.
2) While civil servants hold their positions during the pleasure of the President or Governor, rules governing recruitment and conditions of service have statutory force and can be enforced if violated. Dismissals in violation of constitutional provisions are void.
3) Parliament and state legislatures have powers to make laws on union and state services respectively. The President and Governors also have powers to make rules on recruitment and conditions of service using
Basic Structure Doctrine of Indian ConstitutionAngelina Naorem
The basic structure doctrine is a judge-made doctrine that limits the amending powers of the Indian Parliament. According to this doctrine, certain features of the Indian Constitution are part of its basic structure and cannot be altered even through constitutional amendments. The doctrine emerged from the Kesavananda Bharati case in 1973, where the Supreme Court ruled that while Parliament has the power to amend the Constitution, it cannot change its basic structure or framework. The basic structure includes features like democracy, secularism, separation of powers, and judicial review. The doctrine was established to balance parliamentary sovereignty with protecting the basic foundations of the Indian Constitution.
The document summarizes the powers and roles of the President of India. It outlines that the President is the head of state and commander-in-chief of the armed forces. While executive authority is exercised by the Prime Minister, the President has several important powers, including legislative, executive, judicial, appointment, financial, diplomatic, military, pardoning, and emergency powers. Some key powers include appointing judges, governors, and other officials; introducing certain types of bills; declaring emergencies; and being commander-in-chief of the armed forces. The current President of India is Pranab Mukherjee.
The document provides an overview of the distribution of legislative powers between the central and state governments in India based on the country's federal structure as outlined in the constitution. It discusses the territorial jurisdiction of each, as well as the three lists that divide legislative authority - the Union List (for central government), State List (for states), and Concurrent List (for both). The central government has residual powers for any matter not addressed in the other two lists. The document also examines principles for interpreting the scope of each list, such as giving broad interpretations and determining "pith and substance" when laws overlap areas of authority.
Basic structure of indian constituion(1)Neha Dutta
This document provides a summary of the basic structure of the Indian constitution. It discusses key topics like the need for amendments to the constitution over time, the power to amend granted to Parliament, and the different procedures to amend the constitution - including by simple majority, special majority, and special majority plus ratification by states. It also outlines certain "basic structures" of the constitution like the supremacy of the Supreme Court, secular character, that cannot be amended even by Parliament.
The Indian constitution contains both federal and unitary features that define the relationship between the central and state governments. Some unitary features include a strong central government, single citizenship, and the ability of parliament to amend the constitution without state consent. Federal features include a written constitution that divides powers between the central and state lists, an independent judiciary, and representation of states in the upper house. Financial and administrative relations are also established to balance power between the two levels of government.
Doctrine of basic structure of India's ConstitutionShantanu Basu
This document summarizes the Supreme Court of India's judicial activism in defending the constitution and citizens' rights. Key points include:
1) The court established that it has the power of judicial review over laws and constitutional amendments through its interpretations of Articles 13, 31, and 368.
2) Through cases like Golaknath, the court developed the basic structure doctrine, limiting parliament's power to amend fundamental rights and certain core constitutional features.
3) Subsequent cases like Keshavananda Bharati further expanded and consolidated the basic structure doctrine, establishing the court as the guardian of the constitution's essential elements.
4) The court has actively interpreted and expanded the scope of fundamental rights through an
This document provides details about the Parliament and State Legislatures in India as per the Constitution. It discusses the composition and functions of the Indian Parliament which consists of the President and two houses - Council of States and House of the People. It describes the composition of both houses and their powers. It also compares the upper houses under different constitutions and discusses qualifications and disqualifications of members of Parliament. The document then examines provisions related to Chairman, Deputy Chairman, Speaker and Deputy Speaker of both houses and circumstances leading to vacating of these offices.
This document discusses services under the union and state governments in India. It covers several key points:
1) Civil services fall under both the union and state governments, with defense services only falling under the union. These services are regulated by laws and rules to govern recruitment and conditions of service.
2) While civil servants hold their positions during the pleasure of the President or Governor, rules governing recruitment and conditions of service have statutory force and can be enforced if violated. Dismissals in violation of constitutional provisions are void.
3) Parliament and state legislatures have powers to make laws on union and state services respectively. The President and Governors also have powers to make rules on recruitment and conditions of service using
Basic Structure Doctrine of Indian ConstitutionAngelina Naorem
The basic structure doctrine is a judge-made doctrine that limits the amending powers of the Indian Parliament. According to this doctrine, certain features of the Indian Constitution are part of its basic structure and cannot be altered even through constitutional amendments. The doctrine emerged from the Kesavananda Bharati case in 1973, where the Supreme Court ruled that while Parliament has the power to amend the Constitution, it cannot change its basic structure or framework. The basic structure includes features like democracy, secularism, separation of powers, and judicial review. The doctrine was established to balance parliamentary sovereignty with protecting the basic foundations of the Indian Constitution.
The document summarizes the powers and roles of the President of India. It outlines that the President is the head of state and commander-in-chief of the armed forces. While executive authority is exercised by the Prime Minister, the President has several important powers, including legislative, executive, judicial, appointment, financial, diplomatic, military, pardoning, and emergency powers. Some key powers include appointing judges, governors, and other officials; introducing certain types of bills; declaring emergencies; and being commander-in-chief of the armed forces. The current President of India is Pranab Mukherjee.
The document provides an overview of the distribution of legislative powers between the central and state governments in India based on the country's federal structure as outlined in the constitution. It discusses the territorial jurisdiction of each, as well as the three lists that divide legislative authority - the Union List (for central government), State List (for states), and Concurrent List (for both). The central government has residual powers for any matter not addressed in the other two lists. The document also examines principles for interpreting the scope of each list, such as giving broad interpretations and determining "pith and substance" when laws overlap areas of authority.
Basic structure of indian constituion(1)Neha Dutta
This document provides a summary of the basic structure of the Indian constitution. It discusses key topics like the need for amendments to the constitution over time, the power to amend granted to Parliament, and the different procedures to amend the constitution - including by simple majority, special majority, and special majority plus ratification by states. It also outlines certain "basic structures" of the constitution like the supremacy of the Supreme Court, secular character, that cannot be amended even by Parliament.
The Indian constitution contains both federal and unitary features that define the relationship between the central and state governments. Some unitary features include a strong central government, single citizenship, and the ability of parliament to amend the constitution without state consent. Federal features include a written constitution that divides powers between the central and state lists, an independent judiciary, and representation of states in the upper house. Financial and administrative relations are also established to balance power between the two levels of government.
Doctrine of basic structure of India's ConstitutionShantanu Basu
This document summarizes the Supreme Court of India's judicial activism in defending the constitution and citizens' rights. Key points include:
1) The court established that it has the power of judicial review over laws and constitutional amendments through its interpretations of Articles 13, 31, and 368.
2) Through cases like Golaknath, the court developed the basic structure doctrine, limiting parliament's power to amend fundamental rights and certain core constitutional features.
3) Subsequent cases like Keshavananda Bharati further expanded and consolidated the basic structure doctrine, establishing the court as the guardian of the constitution's essential elements.
4) The court has actively interpreted and expanded the scope of fundamental rights through an
The President of India is the nominal executive head of state, elected by members of parliament and state legislative assemblies. To be eligible for president, one must be an Indian citizen over 35, qualified to be an MP, and not hold a government office. The president is elected through an indirect election using proportional representation and secret ballot. No candidate can win without over 50% of the vote. The president can be removed through impeachment by a two-thirds majority of both houses of parliament.
The document discusses the structure and powers of the Supreme Court of India according to the country's constitution. It notes that the Supreme Court is the highest judicial court with powers of judicial review. It has original jurisdiction over disputes between states and between the central government and states, and appellate jurisdiction to hear appeals from lower courts. It can issue writs for enforcing fundamental rights and decides cases involving the interpretation of the constitution.
THIS PPT DESCRIBES SOME CONSTITUTIONAL BODIES WHICH SHOULD BE MADE AND FUNCTIONED ACCORDING TO THE CONSTITUTION OF INDIA.
THE DATA IN THIS PPT IS TAKEN FROM THE https://www.clearias.com/constitutional-bodies/
The 13 judge bench of the Supreme Court delivered a landmark judgment in Kesavananda Bharati v State of Kerala in 1973. The key issue was whether Parliament's power to amend the Constitution was unlimited. The court narrowly held that while Parliament could amend most of the Constitution, it could not amend the "basic structure or essential features" of the Constitution. This established the "basic structure doctrine" and ensured continued judicial review of constitutional amendments. It prevented Parliament from abolishing all fundamental rights and played a crucial role in upholding democracy during the Emergency.
Supreme courts volte face on Constitutional AmendmendtBal Patil
The document discusses the Supreme Court's order striking down the 42nd Amendment and the constitutional issues surrounding amendments. It summarizes the history of constitutional amendments in India including key Supreme Court cases like Sri Shankari Prasad Singh Deo, Sajjan Singh, and Golaknath that addressed parliament's amending powers. The document argues the Supreme Court's order needs reconsideration as it will have far-reaching consequences amounting to a constitutional amendment.
The Rajya Sabha or Council of States is the upper house of the Indian Parliament. It was created as a federal chamber to represent the states. Some key points:
1. The Rajya Sabha has 245 members, 233 representing the states and 12 nominated by the President. Members serve 6-year terms with one-third retiring every 2 years.
2. The Vice-President of India is the ex-officio Chairman of the Rajya Sabha. It has special powers to legislate on state matters and create all-India services.
3. The Rajya Sabha cannot pass a no-confidence motion or make/unmake the government like the Lok Sabha. However, it plays an important role in
The document discusses the Comptroller and Auditor General (CAG) of India, which is an independent constitutional authority that audits all expenditures from the Consolidated Fund of India and the state governments.
Some key points:
- The CAG is appointed by the President of India for a 6-year term and has the responsibility of auditing expenditures of the central and state governments.
- The office of CAG has evolved since British rule in India and was constitutionalized after independence. It has the power to audit all government bodies receiving substantial public funds.
- The CAG submits audit reports of the central and state governments to the President and state governors, who then present them to
The document provides information about the Lok Sabha, the lower house of the Parliament of India. It discusses that the Lok Sabha has 552 members who are directly elected by the people of India. It outlines the qualifications to be a member of the Lok Sabha, the powers of the Lok Sabha including introducing no-confidence motions and money bills. It also describes the procedures of the Lok Sabha like question hour, sessions, and the main businesses of legislation, finance, and motions. Finally, it discusses the key officers like the Speaker and Deputy Speaker and the role of the Lok Sabha Secretariat.
The document provides an overview of the Indian legal system. It discusses that Indian law is largely based on English common law along with various Acts introduced by the British that remain in effect today. It also outlines the history of law in India, the primary and secondary sources of law, the Constitution of India including fundamental rights and duties, as well as criminal law, civil procedure codes, family law, industrial laws, and the structure of the Indian judicial system including the Supreme Court, High Courts, subordinate courts, and quasi-judicial system.
The Kesavananda Bharati case established the basic structure doctrine, limiting Parliament's power to amend the constitution. The 13 judge bench ruled that while Parliament has broad amendment powers, it cannot alter the basic structure or spirit of the constitution. This includes principles like judicial review, secularism, democracy, and the balance between fundamental rights and directive principles. The case paved the way for the Supreme Court to have the power to review and strike down constitutional amendments that violate these basic features of the constitution.
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.
Role of basic structure under indian constitutionAmit Ganguly
The document discusses the basic structure doctrine of the Indian Constitution as established by the Supreme Court. It originated from the idea that certain core features of the Constitution cannot be amended by Parliament. The doctrine fully evolved through important cases like Kesavananda Bharati where the Court ruled that while Parliament has amendment powers, it cannot alter the basic structure of the Constitution. This established judicial review of even constitutional amendments and the ability to strike down those that violate basic features of the Constitution.
The Indian judicial system follows a three-tier structure with the Supreme Court at the top, High Courts below it, and district and lower courts at the bottom. It also includes specialized tribunals and traditional village courts. Cases can be appealed from lower to higher courts, with the Supreme Court being the final authority on interpreting the constitution and laws of India.
The Supreme Court of India is the highest court in the country and the final authority on the interpretation of the constitution. It has original and appellate jurisdiction over disputes. The chief justice and other judges are appointed by the president in consultation with judges. Judges must have been a high court judge for 5 years or an advocate for 10 years or be a distinguished jurist. The Supreme Court has powers of judicial review and acts as guardian of the constitution and fundamental rights.
This document summarizes the jurisdiction of the Indian judiciary system. It discusses the jurisdiction of the Supreme Court, High Courts, and subordinate courts. It outlines the types of jurisdiction including subject matter, territorial, and pecuniary jurisdiction. It also discusses the separation of powers between judicial and executive magistrates. Finally, it provides details on the sentencing powers of different trial courts in India.
The document discusses the roles and appointment processes of Chief Ministers and state councils of ministers in India. It also discusses High Courts.
- A Chief Minister is the head of the state government and is appointed by the Governor, usually from the party that wins a majority in state assembly elections. If no party has a majority, the Governor exercises discretion in the appointment.
- State councils of ministers are appointed by the Governor on the advice of the Chief Minister. High Courts are the highest courts in each state and have powers of judicial review over state laws as well as administrative oversight over lower courts.
Status Of The President Under The ConstitutionShiva Shankara
The document discusses the status and powers of the President of India under the Indian Constitution. It begins with providing context on the historical meaning and origins of the term "President". It then outlines the key provisions in the Constitution related to the President's role, functions, and powers. The President has executive, legislative, and emergency powers but courts have ruled that most powers must be exercised on the advice of the Council of Ministers. There is debate around some independent powers like pardoning and dissolving the lower house of parliament. Overall, the document analyzes the President's role as outlined in the Constitution and issues that have been subject to judicial interpretation.
The Supreme Court of India is the highest judicial authority in the country. It consists of a Chief Justice and 30 other judges appointed by the President. The Constitution ensures the independence of Supreme Court judges in several ways, such as judges can only be removed via impeachment. The Supreme Court has original, appellate, and advisory jurisdiction. It acts as the guardian of the Constitution and protector of fundamental rights.
The document discusses the composition and functions of High Courts in India. It notes that High Courts are located in each state and consist of a Chief Justice and other judges appointed by the President in consultation with other officials. High Courts have original and appellate jurisdiction over civil and criminal cases. They also have powers of judicial review, can issue writs, and act as guardians of the constitution.
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.
Keshvananda Bharti Case...vs State of Kerala and Anr.LogicallyLegal
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.
The President of India is the nominal executive head of state, elected by members of parliament and state legislative assemblies. To be eligible for president, one must be an Indian citizen over 35, qualified to be an MP, and not hold a government office. The president is elected through an indirect election using proportional representation and secret ballot. No candidate can win without over 50% of the vote. The president can be removed through impeachment by a two-thirds majority of both houses of parliament.
The document discusses the structure and powers of the Supreme Court of India according to the country's constitution. It notes that the Supreme Court is the highest judicial court with powers of judicial review. It has original jurisdiction over disputes between states and between the central government and states, and appellate jurisdiction to hear appeals from lower courts. It can issue writs for enforcing fundamental rights and decides cases involving the interpretation of the constitution.
THIS PPT DESCRIBES SOME CONSTITUTIONAL BODIES WHICH SHOULD BE MADE AND FUNCTIONED ACCORDING TO THE CONSTITUTION OF INDIA.
THE DATA IN THIS PPT IS TAKEN FROM THE https://www.clearias.com/constitutional-bodies/
The 13 judge bench of the Supreme Court delivered a landmark judgment in Kesavananda Bharati v State of Kerala in 1973. The key issue was whether Parliament's power to amend the Constitution was unlimited. The court narrowly held that while Parliament could amend most of the Constitution, it could not amend the "basic structure or essential features" of the Constitution. This established the "basic structure doctrine" and ensured continued judicial review of constitutional amendments. It prevented Parliament from abolishing all fundamental rights and played a crucial role in upholding democracy during the Emergency.
Supreme courts volte face on Constitutional AmendmendtBal Patil
The document discusses the Supreme Court's order striking down the 42nd Amendment and the constitutional issues surrounding amendments. It summarizes the history of constitutional amendments in India including key Supreme Court cases like Sri Shankari Prasad Singh Deo, Sajjan Singh, and Golaknath that addressed parliament's amending powers. The document argues the Supreme Court's order needs reconsideration as it will have far-reaching consequences amounting to a constitutional amendment.
The Rajya Sabha or Council of States is the upper house of the Indian Parliament. It was created as a federal chamber to represent the states. Some key points:
1. The Rajya Sabha has 245 members, 233 representing the states and 12 nominated by the President. Members serve 6-year terms with one-third retiring every 2 years.
2. The Vice-President of India is the ex-officio Chairman of the Rajya Sabha. It has special powers to legislate on state matters and create all-India services.
3. The Rajya Sabha cannot pass a no-confidence motion or make/unmake the government like the Lok Sabha. However, it plays an important role in
The document discusses the Comptroller and Auditor General (CAG) of India, which is an independent constitutional authority that audits all expenditures from the Consolidated Fund of India and the state governments.
Some key points:
- The CAG is appointed by the President of India for a 6-year term and has the responsibility of auditing expenditures of the central and state governments.
- The office of CAG has evolved since British rule in India and was constitutionalized after independence. It has the power to audit all government bodies receiving substantial public funds.
- The CAG submits audit reports of the central and state governments to the President and state governors, who then present them to
The document provides information about the Lok Sabha, the lower house of the Parliament of India. It discusses that the Lok Sabha has 552 members who are directly elected by the people of India. It outlines the qualifications to be a member of the Lok Sabha, the powers of the Lok Sabha including introducing no-confidence motions and money bills. It also describes the procedures of the Lok Sabha like question hour, sessions, and the main businesses of legislation, finance, and motions. Finally, it discusses the key officers like the Speaker and Deputy Speaker and the role of the Lok Sabha Secretariat.
The document provides an overview of the Indian legal system. It discusses that Indian law is largely based on English common law along with various Acts introduced by the British that remain in effect today. It also outlines the history of law in India, the primary and secondary sources of law, the Constitution of India including fundamental rights and duties, as well as criminal law, civil procedure codes, family law, industrial laws, and the structure of the Indian judicial system including the Supreme Court, High Courts, subordinate courts, and quasi-judicial system.
The Kesavananda Bharati case established the basic structure doctrine, limiting Parliament's power to amend the constitution. The 13 judge bench ruled that while Parliament has broad amendment powers, it cannot alter the basic structure or spirit of the constitution. This includes principles like judicial review, secularism, democracy, and the balance between fundamental rights and directive principles. The case paved the way for the Supreme Court to have the power to review and strike down constitutional amendments that violate these basic features of the constitution.
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.
Role of basic structure under indian constitutionAmit Ganguly
The document discusses the basic structure doctrine of the Indian Constitution as established by the Supreme Court. It originated from the idea that certain core features of the Constitution cannot be amended by Parliament. The doctrine fully evolved through important cases like Kesavananda Bharati where the Court ruled that while Parliament has amendment powers, it cannot alter the basic structure of the Constitution. This established judicial review of even constitutional amendments and the ability to strike down those that violate basic features of the Constitution.
The Indian judicial system follows a three-tier structure with the Supreme Court at the top, High Courts below it, and district and lower courts at the bottom. It also includes specialized tribunals and traditional village courts. Cases can be appealed from lower to higher courts, with the Supreme Court being the final authority on interpreting the constitution and laws of India.
The Supreme Court of India is the highest court in the country and the final authority on the interpretation of the constitution. It has original and appellate jurisdiction over disputes. The chief justice and other judges are appointed by the president in consultation with judges. Judges must have been a high court judge for 5 years or an advocate for 10 years or be a distinguished jurist. The Supreme Court has powers of judicial review and acts as guardian of the constitution and fundamental rights.
This document summarizes the jurisdiction of the Indian judiciary system. It discusses the jurisdiction of the Supreme Court, High Courts, and subordinate courts. It outlines the types of jurisdiction including subject matter, territorial, and pecuniary jurisdiction. It also discusses the separation of powers between judicial and executive magistrates. Finally, it provides details on the sentencing powers of different trial courts in India.
The document discusses the roles and appointment processes of Chief Ministers and state councils of ministers in India. It also discusses High Courts.
- A Chief Minister is the head of the state government and is appointed by the Governor, usually from the party that wins a majority in state assembly elections. If no party has a majority, the Governor exercises discretion in the appointment.
- State councils of ministers are appointed by the Governor on the advice of the Chief Minister. High Courts are the highest courts in each state and have powers of judicial review over state laws as well as administrative oversight over lower courts.
Status Of The President Under The ConstitutionShiva Shankara
The document discusses the status and powers of the President of India under the Indian Constitution. It begins with providing context on the historical meaning and origins of the term "President". It then outlines the key provisions in the Constitution related to the President's role, functions, and powers. The President has executive, legislative, and emergency powers but courts have ruled that most powers must be exercised on the advice of the Council of Ministers. There is debate around some independent powers like pardoning and dissolving the lower house of parliament. Overall, the document analyzes the President's role as outlined in the Constitution and issues that have been subject to judicial interpretation.
The Supreme Court of India is the highest judicial authority in the country. It consists of a Chief Justice and 30 other judges appointed by the President. The Constitution ensures the independence of Supreme Court judges in several ways, such as judges can only be removed via impeachment. The Supreme Court has original, appellate, and advisory jurisdiction. It acts as the guardian of the Constitution and protector of fundamental rights.
The document discusses the composition and functions of High Courts in India. It notes that High Courts are located in each state and consist of a Chief Justice and other judges appointed by the President in consultation with other officials. High Courts have original and appellate jurisdiction over civil and criminal cases. They also have powers of judicial review, can issue writs, and act as guardians of the constitution.
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.
Keshvananda Bharti Case...vs State of Kerala and Anr.LogicallyLegal
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.
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.
6.LANDMARK JUDGMENTS OF THE SUPREME COURT PLAIN.pdfssuser5d7a291
This document summarizes several landmark judgments of the Supreme Court of India that have shaped Indian constitutional law. It discusses judgments that established principles like the doctrine of basic structure, limitations on the ability of Parliament to amend fundamental rights, expansion of judicial review, and the beginning of public interest litigation in India. The judgments discussed include Kesavananda Bharati, Indira Gandhi v. Raj Narain, Minerva Mills, and Mumbai Kamgar Sabha, among others.
Judicial activism of the Supreme Court of IndiaShantanu Basu
This document discusses the concept and evolution of judicial activism in India. It provides context on how judicial activism emerged in response to failures of other branches of government and expanded the scope of judicial review. Key developments include:
1) The Supreme Court interpreted Article 21 of the constitution, which guarantees the right to life and personal liberty, to include a variety of social and economic rights. This allowed judicial intervention in many new areas.
2) The Court also drew from Directive Principles of State Policy to support expanded interpretations of fundamental rights, setting precedents for public interest litigation on issues like legal aid, prisons, and the environment.
3) Landmark rulings established new principles in environmental law like "public trust doctrine
The document discusses the amending provisions in the Indian constitution. It notes that no constitution is complete without amendment and that amendment allows future generations to adapt the constitution to their needs. It outlines the genesis of amendment provisions in India, defines key terms, and describes the different modes and types of amendments. It also summarizes several important Supreme Court cases related to limitations on constitutional amendments, including the establishment of the basic structure doctrine.
The document discusses the landmark 8th Amendment case in Bangladesh. In this case, the Appellate Division of the Supreme Court declared unconstitutional an amendment that created permanent benches of the High Court Division with exclusive territorial jurisdiction. Three of the four judges found that the amendment violated the basic structure of the constitution by destroying the plenary judicial power of the High Court Division over the entire country. This case introduced the doctrine of basic structure in Bangladesh and established that amendments cannot alter the fundamental character or basic features of the constitution.
Can violation of basic structure doctrine be a ground to challenge an ordinar...National Citizens Movement
The document discusses whether violation of the basic structure doctrine can be grounds to challenge an ordinary law passed by the legislature. It summarizes the key judgments related to this issue. In Kuldip Nayar v. Union of India (2006), the Supreme Court held that the basic structure doctrine does not apply to ordinary legislation. However, the document argues this was an incorrect interpretation of prior judgments. It analyzes the judgments in Indira Gandhi v. Raj Narain (1975) and State of Karnataka v. Union of India (1977) to argue that ordinary laws can be challenged on basic structure grounds according to the ratio of these cases.
Basic Structure Doctrine ALS on 11th Feb 2014 last updated on 11th Feb 2014.pptAbhishekTripathi655480
The document discusses the power and procedure of constitutional amendments in India and the struggle for power between the higher judiciary and parliament. It provides details about an upcoming lecture on this topic to be delivered by Abdul Hafiz Gandhi. It then lists several other forthcoming lectures, workshops, discussions and events on various legal topics that will be organized by Amity Law School. These include discussions on constitutional provisions, personal laws, judicial appointments, fundamental rights, press freedom and more.
The 1973 Kesavananda Bharati case was a landmark case in Indian constitutional law that addressed the limits of Parliament's power to amend the Constitution. However, the exact ruling of the case is unclear. While it is commonly believed that the Court established that Parliament cannot amend the basic structure of the Constitution, the article argues this was not truly the majority view based on revelations about the case. The article examines the unusual circumstances surrounding the case and questions whether the decision was truly a judicial one free from political influence. It concludes that the basic structure doctrine originated from a single judge's opinion, not a clear majority ruling from the Court.
1) The petitioner, a Hindu personal law board, filed a public interest litigation seeking a writ of mandamus directing the central government to consider legislating a law regulating religious conversions similar to laws passed in Uttar Pradesh and other states.
2) The court discussed the doctrine of constitutional trust established by the Supreme Court, which separates the jurisdiction and powers of constitutional authorities.
3) The court cited Supreme Court precedent that courts have a limited role in legislation and cannot direct legislatures to make laws. Therefore, the petition seeking such a direction to consider legislation was not maintainable and dismissed.
9 basic structure of the constitution revisitedjudicialreform
The document summarizes the complex history behind the formulation of India's basic structure doctrine by the Supreme Court in the 1973 Kesavananda Bharati case. It notes that while the basic structure theory now plays an important role, the actual decision in the case was hopelessly divided with no clear majority view. The doctrine is argued to have gained legitimacy more through accidental circumstances and individual judges' views rather than a coherent judicial formulation. The origins of key aspects of basic structure theory, including its application to fundamental rights, are traced to be more complex and dubious than commonly understood.
ANALYZING THE CONSTITUTIONAL RULES OF INTERPRETATIONAnushka Singh
The document discusses principles of constitutional interpretation in India. It begins by defining interpretation and discussing the importance of constitutional interpretation. It then outlines some key principles that Indian courts use in interpreting the constitution, including:
1. The principle of pith and substance, which examines the true nature and subject matter of a law.
2. The principle of eclipse, which deals with pre-constitutional laws that conflict with fundamental rights.
3. The principle of severability, which holds that if part of a law is unconstitutional, only that part should be invalidated, not the whole law.
4. The principle of colourable legislation, which examines whether a law indirectly achieves something the legislature does not have direct
Doctrine of necessity and its applications by nepalese sc.a brief lookRajib Dahal
The document discusses several cases related to constitutional amendments in Nepal where the Supreme Court invoked the "doctrine of necessity".
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1. Limitations on Constitutional Amendment: "Basic
Structure" Principle Re-examined
S.P. SATHE.
I
The Supreme Court's decision in Kesavananda Bharati v, State ofKeraltr
has shown us the new horizons of judicial review. In Kcsavananda Bharatl
the majority judges held that Parliament did not have the power to tamper
withthe basic structure of the Constitution. This decision circumscribed
the power of Parliament to amend the Constitution and since what the basic
structure is, has not been defined, the basic structure is that which the
court will define from time to time. In India, for quite some time, we
debated whether the court should have the power to review the constitu-
tional amendment. Theoretically, there cannot be any doubt that, Parliament
being the representative of the people, must be in a position to have the
Constitution changed to suit the needs of the community, Between the
court and Parliament the latter must be the final determiner of what
the Constitution must contain.! When, therefore, the Supreme Court held
in Go/ak Nath v. State of Punjab" that Parliament did not have the power to
take away or abridge the fundamental rights through constitutional amend-
ment, juristic opinion was almost unanimously against the decision:' It is
significant that ten out of thirteen judges, who heard Kesavanandi, also
• LL.M., S.J.D. (Northwestern), Principal, Indian Law Society's Law College,
Pune,
1. A.l.R. 1973 S.C. 1461.
2. This was the position of the present writer. Sec Sathe, Fundamental Rights and
Amendment 0/ the Indian Constitution (University of Bombay, 1958) and "Suprcme
Court, Parliament and Constitution," Economic and Political Weekly, Vol. VI, Nos.
34 and 35 (Aug. 21 and 28, 1971) at 1821-28 and 1972-79.
3. A.l.R. 1967 S.C. 1643.
4. SeeSeervai, Constitutional Law 0/India 1088·1119: (Tripathi, Bxrnbay, 1st ed. 1968),
P.K. Tripathi, Some Insights into Fundamental Rights 1·45 (University of Bombay, 197:2):
M.P. Jain, Indian Consiitutional Law (Tripathi, Bombay, 2nd ed, 1970): P.B. Gnjcndr-
agadkar, Tire lndlan Parliament and Fundamental Rights (Eastern Law House, Calcutta,
(1972); Hari Chand, Amendins: Process under the Constitution (Metropolitan, Delhi. 1972).
According to Rajeev Dhavan, Golak Nath was "an unsound decision, using dubious
techniques". He says that "it was more of a political testament than a jurisprudential
verdict," See Rajeev Dhavan, The Supreme Court 0/ India: A Socio-legal Critique 0/
it s Juristic Techniques 4tO (Tripathi, Bombay, 1977); also see by the same author. The
Supreme Court ojIndia and !'JlrJiamelltary Sovere/gllfY 40 (Sterling, New Delhi, 1976).
2. 180 Indian Constitution: Trends and Issues
opined that Golak Nath had been wrongly decided." The fundamental
difference between Golak Nath and Kesavananda was that in the former,
only fundamental rights were excluded from the reach of constitutional
amendment, whereas in the latter, a more nebulous restriction in the nature
of unspecific "basic structure" was imposed on Parliament's power of
constitutional amendment. Kesavananda gave to the Court even wider
powers than it had claimed in Golak Nath, In terms of Parliament-Court
relationship, one cannot defend Kesavananda if one did not defend Golak
Nath, Both have to be criticised from the same stand-point," and yet one
finds that Kesavananda has been accepted by juristic opinion which had
rejected Golak Nath. The most notable example is Secrvai who in the first
edition of his monumental work "Constitutional Law of India" had severely
criticised Golak Nath and had observed:
For reasons already given, it is submitted that the majority judge-
ment is clearly wrong, is productive of the greatest public mischief
and should be overruled at the earliest opportunity."
Seervai does not react in the same way to Kesavananda. Actually his
writings immediately after Kesavananda were consistent with his previous
stand." He himself had argued in Kesavananda that Parliament's power to
amend the Constitution extended to every provision of the Constitution and
short of total abrogation or repeal, was unlimited." In the second edition
of "Constitutional Law" he observed that the decision of the Supreme
Court in Indira Gandhi v. Raj Narain'" (hereinafter referred to as the
Election Case) had thrown new light on Kesavananda. He says that "a
critical discussion of Kesavananda's case, taken by itself, would be inaccurate
5. The judges who held that Golak Nath was wrong were Justice Hcgde (who
wrote the judgment on behalf of Justice Mukherjea and himself); Justices Reddi, Khanna,
Ray (as he then was) Mathew, Beg, (as he then was), Justices Dwivedi I'alekar and
Chandrachud (as he then was) See Sathe," Judicial Review in India: Limits and
Policy," 35 Ohio State Law Journal 870 at 885 (1974).
6. Lately, however, it has been felt that amendability does not mean absolute and
unlimited power of amendment. See Rajecv Dhavan, Tire Supreme Court and Parlla-
mel/tory Sovereignty, supra note 4 at 99.
7. Seervai, supra note 4 at 1117. The same passage has been quoted in the second
edition, see Vol. II at 1311(1976).
8. See Seervai, "The Fundamental Rights Case at the Cross Roads," 75 Bon.bay Law
Reporter (Jollr.) 47-88 The author had observed that, "any decision that the fundamental
features of the Constitution could not be amended, suffers from the weakness of deciding
hypothetical questions." Id. at 62.
9. This view has been put forward by Secrvai in the above article also. See supra
note 8. For criticism of the view that the power of amendment included every change
short of total repeal or abrogation of the entire Constitution, See P.K. Tripathi, "Kesava-
nunda Bharati v, State ofKerala, who wins?" (1974) I S.c.c. Jour. 1-6.
10, A I,R. 1975 S.C. 2299.
3. Limitations on Constitutional Amendment 181
and misleading without a discussion of the deeper analysis of the amending
power in the Election Case."!' He further warns that "no one can now
write on the amending power, without taking into account the effect of the
Election Case. "12 He observes that when in the past iGolak Nath),
Parliament's unlimited power of constitutional amendment was questioned,
it was done on the fear that such power might be abused. Even in
Kesavananda, this was the basis of the attack. But in the Election Case, the
abuse of power was no longer a hypothetical possibility. It was no longer
possible to speak of the air of unreality, "for Article 329(4)supplied the
reaIity."13 Seervai, therefore, rightly focussed our attention on the main
problem. Golak Nath tended to make one part of the Constitution absolu-
tely unamendable. In countering the argument of the majority, it had to
be contended that Parliament had the power to amend each and every
provision of the Constitution. It is true that a constitution should not be
unamendable, but the opposite of unamendability is not total and absolute
amendability. Seervai has given many examples of various constitutional
limitations on the power of constitutional amendment." This has been
done to show that a constitution does not become static and lifeless if some
of its provisions are entrenched. The Kesavananda decision entrenches the'
basic structure of the Constitution. But the main objection against the
Kesavananda is that the text of the Constitution, nowhere mentions any such
limitation. In the absence of a specific limitation in the Constitution, can
the Court find it? And if the Court could find it in Kesavananda what was
wrong if it found a similar limitation in Go/ak Nathl It will be pointed out
in this paper that it is wrong to say that the Constitution does not mention '
any limitation regarding basic structure in the Constitution. The consti-
tutional interpretation adopted in Kesavananda does not suffer from the
infirmities which were inherent in Chief Justice Subba Rao's interpretation
regarding articles 13 (2) and 368 in Golak Nath, Further, and more--
importantly, it is submitted that the Kesavananda decision acquired legitimacy
because of the subsequent developments.
Inspite of various cogent and sound arguments put forward by Seervai
in support of the basic structure doctrine, it is submitted that he and many
of us came to favour that doctrine mainly because of the experience,
during the Emergency. At least this writer is not shy of saying so, because
he firmly believes that "the life of the law has not been logic, it has been
experience.I"! The way the Constitution was changed during this period
11. Secrvai, vot. II, Constitutional Law 1511 (:!nd ed, 1976).
n. Id. at 15:!2.
13. Id. at 1535.
14. Id. at 1536.
IS. See Holmes. Tire Commoll Law I cited from Cardozo, Tire Nature of tire Judicial
Process33 (Yale University Press New Haven. 19:!1).
4. 182 Indian Constltution : Trends and ISsues
showed us the dangers of vesting unlimited power of constitutional amend-
ment in Parliament. If Parliament had not enacted the measures such as
the Thirty-ninth and Forty-second amendments, one wonders whether the
Kesavananda decision would have received such support. We pointed out
earlier that Kesavananda premise is almost identical with that of Golak Nath,
Both decisions sought to restrain Parliament from amending the Consti-
tution, whereas Go/ak Niltll entrenched only the fundamental rights,
Kesavananda entrenched the "basic structure." In Go/ak Nath Chief Justice
Subba Rao had promised that inspite of their unamendability, the
fundamental rights would expand or contract according to the needs of
society and that this would be achieved through judicial interpretation."
Chief Justice Subba Rao did not say that fundamental rights could not be
amended. He only said that they could not be "taken away" or "abridged".
Parliament's amendment would be subject to the court's scrutiny, and
would stand cancelled only if in the opinion of the court it took away or
abridged the fundamental rights. Go/ak Nath came under attack mainly
because (i) it was interpreted as an attempt to save the right to property
from further contraction through constitutional amendment; and (ii)
nobody seriously entertained the argument of fear that if Parliament posse-
ssed such power, it would abuse it. This writer had argued that Nath Pai's
Bill, which sought to undo GALIk Nath be stayed until all the implications
of that decision became obvious." Is was hoped that if the court really
.fulfilled its promise, perhaps unamendability of fundamental rights canvassed
'by Golak Natl: might not come in the way of distributive justice. But the
later experience belied this hope and the decisions in R.C. Cooper v. Union
ofIn.Jia18 (the RInk Nation.tlisation Case) and Madhavrao Scindla v. Union
ofIndialO (the Privy Purse Case) manifested that Go/ak Nath could really be
dangerous. One mayor may not agree with those measures which were
involved in the above two cases but democracy demands that Parliament
must have the freedom to make a choice between alternatives which are
available. The range of such alternatives should be widest and any judicial
decision which tends to restrict it ultimately does harm not only to the
political but also to the judicial process.
It is against such judicial adventurism that former Prime Minister,
Indira Gandhi sought mandate of the people in the general election held in
16. Sec A.I.R. 1976S.C. 1643 at 1670. See the comments of this writer in Fundamental
Rights and Amendment ofthe Indian Constitution, supra note 2 at 56.
J7. S.P. Sathe, "Amendability of Fundamental Rights, Golak Nath and the Proposed
Constitutional Amendment," Supreme Court Journal 33-42 (969). The late Nath
Pai was II Socialist Party Member of Parliament. He had introduced a BiU to amend the
Constitution with a view to wiping out the Golak Natt: decision.
18. A.I.R. 1970 S.C. 564.
19. A.I.R. 1971 s.c.530.
5. Limitations on Constitutional Amendment 183
1971 to make "basic changes in the Constitulion"." The excessive judicial
interference had made her case strong. She could convince the people
that the Supreme Court and the decisions like Golak Nath were holding up
the country's progress. It was no wonder that she won a landslide victory.
The Twenty-fourth Constitution Amendment, which was enacted immedi-
ately after the election by the fifth Lok Sabha, sought to restore to
Parliament the unlimited power of constitutional amendment." The
validity of the Twenty-fourth Amendment was examined by the Supreme
Court in Kesavananda and although it upheld the amendment, it held that
the basic structure of the Constitution could not be destroyed. rn 1973,
the decision appeared to be a sophisticated version of Golak Nath, From
policy standpoint, it was as questionable as Golak Nath. It meant that
the court would sit in judgment over the wisdom of Parliament and decide
whether a constitutional amendment was valid.
Kesavananda did not enjoy legitimacy in 1973. Firstly, because it was
seen as an extension of Golak Nath. The very reasons which bad impelled
juristic opinion to oppose Go/ak Nath also implelled it to oppose Kesava-
nanda.u It was rightly felt that Parliament must have the' last word
regarding the content of the Constitution." It was the Election Case'" that
earned legitimacy for Kesavananda. This case dealt with Indira Gandhi's
appeal against the decision of the Allahabad High Court in which her
election to Parliament had been set aside on the ground that she had used
corrupt means. While her appeal was pending, Parlisment passed the
20. Sec S.K. Tarnberi, The Wonder Election 1971: Indira versus the Right 94 (1971).
21. S.P. Sathe, "Supreme Court, Parliament and Constitution," supra note 2.
22. See Seervai, supra note 8 and Tripathi, supra note 9. Also see Rajeev Dhavan,
supra note 4 at 411-4:!1. For contrary view. see Upendra Baxi, "The Constitutional
Quicksands of Kcsavananda Bharati and the Twenty-Firth Amendment,' (1974) 1 S.C.C.
(Jour.) 45. Baxi holds the view lhat the Supreme Court "is also endowed with constituent
power like the Parliament." Id. at 4!(. II is submitted that the court docs not share
Ihe constituent power. The constituent power was possessed only by the Constituent
Assembly. It gave amending power to Parliament. The amending power which this
article gives is possessed only by Parliament, as according to Kesavananda, such power is
subject only' 10 one limitation, i.e., it cannot destory the basic structure of the Constitution.
23. This vicw W.1S put forward by Justice Chandrachud (as he then was) again in the
Election Case. The learned judge said, "The reason why I see no substance in Shri
Shanti Bh ushan's contention is that what the Constitution ought 10 contain is not for the
Courts to decide. The subject matter of constitutional amendments is a question of high
policy and courts are concerned with the interpretation of laws, not with the wisdom of
the policy underlying them," A.l.R. 1975 S,C. 2:!99 at 2464. It is respectfully submitted
that while the first part of the above observation is unexceptionable, the second cannot be
accepted because determination of basic structure is doubtless a question of high policy
which the courl has now undrtaken. Did Justice Chandrachud (as he then was) not
question the wisdom of the Parliament when he held clause (4) of article 329-A (as
amended by the 39th Amendment) unconstitutional?
24, Supra note 10.
6. 184 Indian Constitution: Trends and Issues
Thirty-ninth Amendment, the purpose of which was to withdraw the
election disputes involving the Prime Minister, the President, the Vice-
president and the Speaker from the purview of the courts and to provide
separate machinery for their adjudication. The Attorney-General argued
that the court could not entertain the appeal in view of the Thirty-ninth
Amendment. The Thirty-ninth Amendment had declared that in respect
of all pending disputes the election of the Prime Minister shall continue to
be valid and any decision of any court to the contrary shall be void.2fj
The
Attorney-General, therefore, argued that since the Allahabad judgment had
been quashed, there was nothing to appeal against and, therefore, the
Supreme Court could not proceed with the hearing of the appeal. Sbanti
Bhushan, counsel for Raj Narain, argued that the Thirty-ninth Amendment
was void, as it destroyed the basic structure.
The Attorney-General had the following options: (i) he could have
argued that the court should reconsider Kesavananda, (ii) he could have
argued that ill fact the ratio of Kesavananda was not that the basic structure
could not be altered. He could have argued that there was no ratio
regarding Parliaments power of constitutional amendment in that case;
or (iii) he could have accepted Kesavananda as binding lind argued that
the impugned amendment did not hit at the basic structure. The Attorney-
General adopted the third option. This was the first opportunity since
Kesavananda to raJse objection against that decision. Why did the Attorney-
General not raise it? Why did he accept the decision as binding? We
surmise that had the issue been of an impersonal nature like right to
property, the Attorney-General would have seized this opportunity to get
Kesavananda overruled but the impugned amendment being morally inde-
fensible, the Attorney-General found it strategically useful not to re-open
the question of amendabllitytv and confined his argument to the validity
of the Thirty-ninth Amendment. Without overruling Kesavananda also the
court could uphold the amendment. The Attorney-General decided to
take a chance but it is respectfully submitted that this amounted to acquie-
scence in the validity of Kesavattanda.
The Supreme Court decision in the Election Case achieved two things;
(i) it gave legitimacy to Mrs. Gandhi's continuance as Prime Minister; and
(ii) it gave legitimacy to the Kesavananda decision. True, since the decillions
25. Clause (4) of article 3:!9-A, The Constitution ofIndia.
25u. Before the judgment in the Electioncuse was delivered, the Union of India applied to
the court requesting it to reconsider the Kesavananda decision. A bench of thirteen judges
was constituted for this purpose but it wound up its proceedings in two days. This rein-
forces the above surmise. The Bench started its hearing on 10-11-75 and it was dissolved
on 12-11-75. See Seervai, Vol. 11 at 1532.
7. Limitations on Constitutional Amendment 185
of the four judges (Chief Justice Ray, Justices Khanna, Mathew and
Chandrachud.) were based on the retroactive amendment of the Election
law, it may be argued that the decision did not make Mrs. Gandhi's conti-
nuance legitimate. This is debatable, because if we accept the assumption
that the Allahabad judgment deprived her of legitimacy, then we have to
agree that the Supreme Court decision restored her legitimacy. Firstly,
because ordinary people do not understand the intricacies of the law. They
only know that w)tereas the Allahabad High Court held against her, the
Supreme Court decided in her favour. Further, it may be argued that as
one judge of the Allahabad High Court held her election void, one judge of
the Supreme Court, Justice Beg, (as he then was) upheld her election even
independently of the retroactive amendments.
A judicial decision needs legitimacy. Precedent, rules of interpretation
and logic give it formal rationality, but the substantive rationality is provi-
ded only by sound social policy." Indian legal scholarship has almost
neglected this aspect. There is a heavy emphasis on logic to justify or
criticise a decision. We get evidence of this in Tripathi's article on
Kesavananda, He observes that had Chief Justice Subba Rao got the
benefit of the researches done after Golak Nath, his decision might have
been different.27 If that were so, why did seven judges in Kesavananda hold
that Parliament's power to amend the Constitution did not extend to the
destruction of the basic structure? We cannot pay less attention to the
social background and social philosophy of the Judges. A judge may be
unknowingly influenced by contemporary social events and thinking.·
Otherwise how do we account for the fact that two out of three judges, who
struck down clause (4) of article 329·A inserted by the Thirty-ninth Amend-
ment, had held earlier that Parliament's power to amend the Constitution
was unlimited?" Was it mere compliance with the precedent? It does not
seem to be so, because it would have been possible to uphold the impugned
26. See Max Rheinstain (Ed.) Max Weber on Ll/W in Economy and Society (translated
by EdwardShils and Max Rheinstainj at XLIII.
27. See Tripathi, supra note 9 at 5. He says. "the benefit ofsubsequent researches
available when the present case came up in t973 was not available to the learned judges
who decided Golak Nath in 1967." Tripathi further says. "It is highly probable. indeed.
that the outcome of the Golak Nuth case would have been different if this articulation of
the distinction between Constitution and ordinary law could have then been presented to
the Court." ld. at 6.
28. In Indira Gam/hi v. Raj Nuraln, supra note 10, the Bench consisted of live judges.
namely. Chief Justice Ray. Justices Khanna. Mathew, Beg (as he then was) and Chandra-
chud (as he then W.l5) Barring Justice Khanna. all others had held in Kesavananda,
that Parliament's power of constitutional amendment was unlimited. Out of these.
Justices Mathew and Chandrachud (as he then was) held that clause (4) of the Thirty-ninth
Amendment WJS invalid (with the inclusion of Justice Khanna this became the majority
decision). Chief Justice Ray and Justice Beg (as he then was) ignored the above amendment.
8. 186 Indian Constitution : Trends and Issues
amendment without questioning the validity of the precedent. After all,
the judges were not bound by any definition of the basic structure. Could
they not have held that the impugned amendment did not go against the
basic structure? Chief Justice Ray had observed that "the theory of basic
structure or basic features is an exercise in imponderables.v'" Justice
Mathew frankly confessed that he had not shared "the view of the rnajori-
ty,"ao (Kesavananda) and yet he held that resolution of an election dispute
by the amending body was not law. Justice Chandrachud (as he then was)
observed that Parliament should not, instead of legislating, decide disputes
between the parties and that too without following the judicial procedure."
The invalidation of the impugned amendment in the Election case was
guided more by the moral sense of the judges than by logic.
The decision of the Supreme Court in Indira Gandhi v. Raj Narain was
indeed very statesmanly. Because while upholding Mrs. Gandhi's election
and thereby avoiding confrontation and also the undesirable political
consequences, the court reasserted judicle review of the constitutional
amendments. The decision in many respects is comparable to the decision
of the Supreme Court of the United States in Marbury v. Madisont" where
the court in a similar way asserted judicial review while choosing not to
interfere with the government's action.32a
This writer has submitted that while changes in the system have to be
within the four corners of the system, change of system cannot be subject
.to any legal limitation." Change of the system is ail extra-legal phenomenon.
An amendment of the Constitution is a change within the system because
even article 368 contemplates that "the Constitution shall stand amended."
The power of Parliament to amend the Constitution extends to every provi-
sion but not to such amendment as will alter the basic structure. While the
laws are obeyed, the Constitution is accepted. Its sanction lies in the
acceptance of the people. The Indian Constitution speaks in the name of
the people of India.3' Whatever might have been the legal source of the
Constitution, it became sui generis by virtue of the fact that the Constituent
29. Supra note 10 at 2332.
30. ld. at 2372.
31. Jd.at2471.
32. I Cranch 137( 1803).
320 . Secrvai has said that, "the Supreme Court reached its finest hour." in this case. See
Scervai, The Emergency, Future Safe-guards and the Habeas Corpus Case 4 (Tripathi,
Hurnbay, 1978).
33. See S.P. Sathe," Forty-Fourth Constitutional Amendment," Economic and Political
Weekly, Vol. XI, No. 43, 23-10-1976. Also reprinted by Citizens for Democracy in
Democracyand Constitution (44th Amendment) Bill (1976).
34. See Preamble.
9. Limitationson Constitutional Amendment 187
Assembly declared itself sovereign and undissolvable except by its own act,a;;
and repealed the Indian Independence Act, 1947, which was supposed .to
be its legal source." The fact that the British Parliament accepted such
repeal proves that the Constituent Assembly succeeded in asserting its
sovereignty. Hart explains the difference between a constitution and the
laws in the following words:
We only need the word 'validity', and commonly use it, to answer
questions which arise within a system of rules where the status of a
rule as a member of the system depends on its sati fying certain
criteria provided by the rule of recognition. No such question can
arise as to the validity of the very rule of recognition which provides
the criteria; it can neither be valid nor invalid but is simply accepted
as appropriate for use in this wayY (Emphasis added).
The Constitution is the rule of recognition wit h reference to which the
validity of all laws including the constitutional amendments will have to be
examined. It is respectfully submitted that Tripathi was wrong in consi-
dering that constitutional law was sui generis. It is the Constitution which
is suigeneris. Constitutional law consists of constitutional amendments,
judicial interpretation and the original Constitution. Constitutional amend-
ments and judicial interpretation owe their origin to the Constitution. They
do not generate their own validity, their validity is dependent on the
Constitution. An amendment of the Constitution is not a grundnorm,
because it has to be according to the method provided in the Constitution.
While we can say that the power of amendment must be broad and in this
respect we still dispute the Golak Nath decision, we cannot say that it
should be broad enough to include the abrogation of the Constitution itself.
Total abrogation of the Constitution, which is what we mean by destruction
of its basic structure, cannot be comprehended by the Constitution. If it
comes, it has to come from outside the Constitution. In the hierarchy of
norms, while the Constitution is at the apex, the laws amending the
Constitution are lower than the Constitution and higher than the ordinary
laws. Ordinary laws will have to be valid even according to the amend-
ment, but the amendment will have to be valid according to the Constitu-
tion. The Constitut.ion is sui generis only so long as it is accepted by the
people. So long as it is accepted, it must control all legislation including
amending legislation. What the people have accepted is the Constitution
35. Constituent Assembly. Rules of Procedure and Standing orders, rule 7. chapter
HI provided that, "The Assembly shall not be dissolved except by a resolution assented to
by at least two-thirds of the whole number of members of the Assembly." Sec Graville
Austin, The Indian Constitutlon-r-Corner stone ofa Nation 7(Oxford. reprint, 197:!).
36. Article 395, The Constitution oflndia,
37. H.L.A. Hart, The Concept ofLaw 105-106 (Oxford, 1961).
10. 188 Indian Constitution: Trends and Issues
of India and that Constitution is identified by its basic structure. 'It is,
therefore, the "basic structure" which has been accepted by the people.
Unlike in Go/ak Nath, in Kesavananda the Supreme Court did not take
recourse to strained interpretation of the Constitution. Article 13 (2)
could not include a constitutional amendment, not because a constitutional
amendment was sui generis as Tripathi suggested, but because firstly, there
was overwhelming historical evidence to prove that the Constituent Assern-
hly did Dot intend to exclude fundamental rights from the power of
constitutional amendment conferred by article 36838
and secondly, the word
'law' in that article was used in the same sense in which that word has been
used in other articles such as article 372 which saved the existing laws and,
therefore, could not include a constitutional amendment. The difference
between a law and a constitutional amendment was well noted by the
Supreme Court in Sankari Prasad'" and Sajjan Singh'" cases. In Kesavananda,
the principle that the basic structure cannot be altered is supported by the
express words in article 368 that "the Constitution shall stand amended."
That principle is further supported by the fact that the power of constitutio-
nal amendment being a derivative of the Constitution cannot destroy its
parent source.
II
The main problem before us is how to provide for judicial review with-
out letting the court become a super legislature. The main criticism against
Kesavananda is that since what is basic structure has not been defined, we
would have to depend upon the vagaries ofjudicial process. Parliament
ought to know the limits within which it has to act. Therefore, it has been
suggested that Parliament itselfshould declare what the basic structure is.n
As things stand, such a declaration will only partially reduce the uncertainty;
because the court is not bound by such a declaration. Further, if it is left
to the sweet will of Parliament to define the basic structure, the limitation
becomes meaningless, because Parliament may revoke its declaration and
issue a fresh one specifying something else as basic structure. Moreover,
Parliamentary declaration of basic structure will make the basic structure
rigid and inelastic. It is difficult to say that something is basic structure
because "basic structure" is essentially a value judgment and not susceptible
of precise description. We might say that freedom of speech is part of the
basic structure. But that does not necessarily mean that it should be
unamendable. The Constitution (First Amendment) Act, 1951, permitted
3l!. Sec Sathe. -Suprerne Court. Parliament and Constitution," supra note 2.
39, A.I.R. 1951 S.C. 458.
40, A I.R. 1965 S.c. 845.
41. S V. Kog,ek:1r. Revision of lire Constitution, R.K. Kale Memorial Lecture 10
(1976, Gok hale Institute of Politics and Economics),
11. Limitations on Constitutional Amendment 189
the State to impose restrictions on freedom of speech and expression in the
interests of public order and maintenance of friendly relations with foreign
states. Similarly, the Sixteenth Amendment permitted the State to impose
restrictions on freedom of speech and expression in the interests of the
sovereignty and integrity of India. We would not have had such flexibility
if freedom of speech had been mentioned as basic structure. At the same
time, freedom of speech cannot be omitted from any description of basic
structure. Whether any amendment affects the basic structure will have
to be judged by considering its effect on the total structure of the Constitu-
tion, and if it is found that it destroys some essential features of that
structure, then only it will have to be struck down. Justice Chandrachud
(as he then was) has given us the most satisfactory test for determining
what constitutes the basic structure. The learned judge said in the Election
case:
For determining whether a particular feature of the Constitution is a
part of its basic structure, one has perforce to examine in each
individual case the place of the particular feature in the scheme of
our Constitution, its object and purpose, and the consequences of
its denial on the intergrity of the Constitution as a fundamental
instrument of the country's governance."
The Forty-second Amendment added a new clause to article 368, the
purpose of which was to make constitutional amendments totally immune
from judicial review." The clause reads a') follows:
No amendment of this Constitution (including the provisions of
Part I II) made or purporting to have been made under this article
whether before or after the commencement of section 55 of the Con-
stitution (Forty-second Amendment) Act, 1976) shall be called in
question in any court on any ground.
In the Statement of Objects and Reasons it was said:
Even though article 368 of the Constitution is clear and categoric
with regard to the all inclusive nature of the amending power, it is
considered necessary to put the matter beyond doubt.4•
This writer had observed in 1976 as follows:
[E]ven the above provision may not be able to exclude judicial
review. Because in Kesavananda Bharati, the majority had held
42. Supra note to at 2465.
43. Clause (4) of article 368. This was inserted by section 55 of th: Constitution
(Forty-second Amendment) Act, 1976.
44. The Gazette of Indiu, Part II, Section II, 1-9-1976, 1377 at 1937.
12. 190 Indian Constitution: Trends and Issues
that the limitation of the basic structure was implied in the word
"amendment" itself. Since, according to the Court, an amendment
is one which does not destory the basic structure, the use of the word
"amendment" in the above provision would merely mean that if
something is an amendment its validity would be challenged only
on procedural ground. But the Court would first examine whether
it is an amendment."
Now that Parliament is engaged in repealing the undesirable elements
of the Forty-second Amendment, it is interesting that no mention is being
made of this clause. The Congress Party has observed that since the above
amendment has been challenged in the Supreme Court "it is better and
prudent to await the decision of the Supreme Court without taking any
definite stand at this stage.'?" The fact that neither the Congress nor the
Janata have taken any position on this question means that this question
will have to be resolved by the Supreme Court itself. The trend of judicial
decisions in all democratic countries is towards repelling the onslaughts
on their jurisdiction. In England, the courts have frustrated the ouster
clauses (clauses which exclude the jurisdiction of the courts) and provisions
conferring absolute discretion on the executive." Looking to the way
in which our courts have interpreted various provisions of the Forty-second
Amendment," we have no doubt that our courts are no exception to the
above rule. The attitudes of the major political parties towards the ques-
tion of amendability show that they are relying more on judicial process
45. See supra note 33 at 1704; see Democracy anti Constitution (42nd Amendment)
Billat 15.
46. Notes on the 42nd Amendment by V.A. Seyid Mohammed.
47. See Anisminic Ltd. v. Foreign Compensation Commission (1969) 2 A.C. 147;
Secretary ofState for Education and Science v, Tameside Metropolitan Borough Council
(1976) 3 W.L.R. 641; Padfield v. Miflister of Agriculture, Fisheries and Food (1968) A.C.
997; see for an incisivecomment on the Tameside decision, 93 L.Q.R. 4 (I 977}.
48. See S.D. Ghatge v. State, A.l.R. 1977Born. 383 where Justice Tulzapurkar, Acting
Chief Justice (as he then was) held on behalf of a Bench consisting of Justices Chandurkar,
Shah and himself that even after deletion of the word "tribunal" from article 227, the
High Court will have power of superintendence over bodies which satisfy the qualities of a
court. i.e., they perform judicial function of rendering definitive judgments having finality
and authoritativeness to bind the parties litigating their rights before them in exercise of
sovereign judicial power transferred to them by the State, provided that they are subject
to the appellate or revisional jurisdiction of the court. Also see Chaganlal v, Navalkumar,
A.I.R. 1977 Gu], 180 on the same point. Also see for article 226 Govt, of India v,
National Tobacco Co., A.I.R. 1977A.P. 250. See comments of this writer in the article
"Forty-Fourth Constitutional Amendment Bill," supra note 33 at 23. The Supreme Court
refused to consider the validity of the Forty-second Amendment in the Ld.C, Bonus Case
(Madan Mohan Pathak v. Union ofIndia, (1978)2S.C.c. 50) on the basis of agreement
reached between the parties. See Statesman, 8-10-1977. The editors also feel that the
courts have not completely ignored Parliamentary intentions in interpreting "ouster"
clauses (Ed.),
13. Limitations on Constitutional Amendment 191
than on political process. The court on the other hand, desires that major
constitutional changes should come from Parliament. This is evident from
Justice Chandrachud's (as he then was), appeal to Parliament to rescind
the provision which requires seven judges to sit on a bench for deciding
constitutional questions." The learned judge teUingly pointed out the
inconvenience that the above provision was going to cause to the public as
well as to the court. This appeal comes out of the realisation, which it is
submitted is right, and which springs from right judicial attitude towards
parliamentary process, that the court may at the most negative some
extreme measure as being inconsistent with the basic structure, but it cannot
and should not act as a censor of constitutional change and, therefore,
ultimately dedsions regarding the Constitution must lie with Parliament.
Although various provisions of the Forty-second Amendment have been
challenged before the Supreme Court, it is good that the cancellation of
that amendment is coming through parliamentary process. It will be indeed
a very good day when parliamentary process can take full responsibility for
initiating change as well as for protecting the basic structure of the Consti-
tution. The Supreme Court will have to tread its path very carefully. In
reviewing the constitutional amendments, the court must adopt stronger
presumption of constitutionality than it does in regarJ to ordinary laws. We
hope that occasions for invalidation of constitutional amendments would
not come in the future. This will require restraint on the part of both, the
Parliament and the Supreme Court.
49, See M./S, Misrilal Jain v. State ofOrissa (1977) 3 S.c.c. 212 at 2:8. The case
did not involve the question of validity of the Forty-second Amendment,