Keshvananda Bharti Case...vs State of Kerala and Anr.

Detail about Keshvananda Bharti Case vs State of Kerala and Anr. (1973)4SEC 225

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2. Detail about Keshvananda Bharti Case.... Vs State oF Kerala and Anr. (1973)4SEC 225

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 40 th anniversary of the judgement.

5. HEAD NOTES:- Constitution of India,Art 368 [ Before amendment of 24 th 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 24 th ,25 th and 29 th 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 24 th amendment Act 1971 is valid Whether section 2(a),2(b) and 3 of 25 th amendment is valid. Whether 29 th 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 24 th ,25 th ,26 th and 29 th 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 24 th 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. Supermacy of the Constitution Republican and democratic form of government Secular character of the Constitution Separation of powers between the legislative,the executive and the judiciary
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 24 th 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:- 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 24 th 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 24 th 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.

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