Advocate Aankhi Ghosh writes that it is time to reargue Kesavananda Bharati case and reconsider the Basic Structure doctrine. The case of Kesavananda Bharati v. State of Kerala (Kesavananda Bharati) is perhaps the most well-known constitutional decision of the. Kesavananda Bharathi is the case which saved Indian democracy; thanks to Shri Kesavananda Bharati, eminent jurist Nanabhoy Palkhivala and the seven.
|Published (Last):||5 November 2009|
|PDF File Size:||18.77 Mb|
|ePub File Size:||7.96 Mb|
|Price:||Free* [*Free Regsitration Required]|
This brief note attempts to indicate the rationes decidendi in Kesavananda Bharati v. It may not be out of place to indicate what is meant by ratio decidendi. The expression has been described as: Montrose has suggested that the expression is used in two senses: As Cross states, “by common consent, the ratio decidendi is a proposition of law”. It may not be necessary to go further into a discussion of ratio decidendi.
We shall now address ourselves to finding out the rationes decidendi in the Kesavananda Bharati case. A proposition enunciated, by a majority consisting of Sikri, C. It is this proposition that will be applied in testing the validity of a constitutional amendment in the future. Ray and Mathew, JJ. Any amendment, according to them, should leave behind a mechanism of Government for the making, interpretation and implementation of laws.
II As early as the thesis that there is a distinction between constitutional law and ordinary law was accepted. There is a hierarchy of legal norms. The basic norm or Grundnorm as Kelson calls it, is the Constitution which acquires validity from the fact of social acceptance or recognition.
Other legal rules assume validity because of their conformity with the Grundnorm. But he emphasised the distinction when he observed: And the significance of the distinction, is that while an ordinary bhaati depends for its validity on its conformity with their Constitution, constitutional law is independent of any such conformity.
The same distinction enunciated and followed in Sajjan Singh case 7 in The same proposition was reverted to by the dissenting Judges in the Golak Nath decision in After a passage of half a dozen years, the minority view of five Judges came to be accepted by a majority of ten Judges as against three in the Kesavananda Bharati case.
This is not an uncommon phenomenon in the whirligig of judicial opinions.
In his well-known book The Concept of Lawpublished inBharrati wrote: This is, according to constitutional theory, the position in the United Kingdom. But even systems like that of the United States in which there is no such legally unlimited legislature may perfectly well contain an ultimate rule of recognition which provides a set of criteria of validity, one of which is supreme.
This will be so, where the legislative competence of the ordinary legislature is limited by a Constitution which contains no amending power, or places some clauses outside the scope of that power. Here there is no legally unlimited legislature, even in the widest interpretation of ‘legislature’ ; but the kesavananea of course contains an ultimate rule of recognition and, in the clauses of its Constitution, a supreme criterion of validity. It was by the application of this “supreme criterion kesavsnanda validity” that a distinction was drawn between constitutional law and ordinary law and the Golak Nath decision regarding the fundamental rights was declared erroneous.
III An important proposition enunciated by a majority of Judges in the Kesavananda Bharati case is that the power to amend does not include the power to alter the basic structure or framework of the Constitution to the extent of changing its identity.
That this ratio is common in the opinions of bharsti Judges may be substantiated by the pure mechanical process of presenting excerpts from the opinions. If all the basic features of the Constitution are repealed and some other provisions inconsistent with those features are incorporated, it cannot still remain the Constitution referred to in Article The personality of the Constitution must remain unchanged.
He observed in the course of his opinion: As a result of the amendment, the old Constitution cannot be destroyed or done away with ; it is retained though in the amended form. What then is meant by the retention of the old Constitution? It means the retention of the basic structure or framework of the old Constitution. The words ‘amendment of the Constitution’ with all their wide sweep and amplitude cannot have the effect of destroying or abrogating the basic structure or framework of the Constitution.
Nehru contemplated by amendment was the varying of the Constitution ‘here and there’ and not the elimination of its basic structure, for that would necessarily result in the Constitution losing its identity”.
Subject to the retention of the basic structure or framework of the Constitution, the power of amendment ujdgment plenary and includes within itself the power to amend the various Articles of the Constitution, including those relating to fundamental rights as well as those which may be said to relate to essential features.
No part of a fundamental right can claim immunity from amendatory process by being described as the essence or core of that right.
The power of amendment would also include within itself the power to add, alter or repeal the various Articles. He invariably employs bhxrati expression “basic structure”.
From the illustrations he gives of what constitutes the basic structure of the Constitution he does not seem to make much of a distinction between what he calls basic structure and what the other learned Justices have referred to as essential features.
In fact, he observes in the course of his opinion that bhaarati far as the expression “essential features” means the basic structure or framework of the Constitution, the power to amend does not include iesavananda itself the power to change the basic structure or framework of the Constitution.
Judgmment County Council 19 he stated: It is in the restricted sense of making changes “here and there”, as Pandit Nehru expressed the idea, that the power of amendment is considered plenary and can reach each and every Article of the Constitution, provided its basic structure is retained intact. According to Beg, J. It includes the power of repealing or abrogating each and every provision of the Constitution.
If the Constitution is abrogated and the country is to be governed as nearly as possible under, say, the abrogated Constitution, on the strength of a martial law order, the three branches of Government are not obliterated but it is doubtful whether this would be considered a permissible amendment of the Constitution.
When Ray and Mathew, JJ. It is very unlikely that they contemplated, say, for instance, a monarchical form of government. Anyway, in the view of jdgment majority, the power of amendment is plenary as long as what is left behind after amendment is the basic structure or framework of the Constitution. V In the Golak Nath decision, the Court addressed itself to the question kesavanabda abrogation or abridgment of the fundamental rights through a process of amendment.
In the Kesavananda Bharati caselarger issues were involved. The majority decision has held that the basic structure of the Constitution cannot be destroyed by means of amendment.
What constitutes the basic structure is not clearly made out. Jugment what he has not listed along jufgment what he has will correspond to Sikri, C. But bhaeati appears from the general trend of thought that there is bound ,esavananda be some approximation. Most of the fundamental rights will have to be retained, albeit in an attenuated form, though it would tax the ingenuity of man a little too hard to discover possible attenuation in a few instances.
Quite a good number of the directive principles may be considered to be inviolable in view of the Preamble which sets out the aims and objects of the Constitution. Articles relating to the Union of States, elections and judicial review cannot be repealed.
It may therefore be said that the Kesavananda decision has forged more fetters on the powers of Parliament to amend kezavananda Constitution. In spite of its lengthiness, it is known that many things are left unsaid in the Indian Constitution. These things are to be supplied either by conventions which we build up and by judicial decisions. It may be of interest to note that much of what has been done by the Kesavananda decision has been set down in the basic law of the Federal Republic of Germany.
Article 79 3 of the Basic Law lays down: Strasbourgof Lincoln’s Inn, Barrister-at-Law. Return to Text 4 SCC Return to Text R. Precedent in Bharari Law. Return to Text Quoted in Cross, supra note 1. Cross points out that there is generally no distinction between these two senses of the expression until a decision has been interpreted in a subsequent case ibid. Return to Text Rupert Corss, supra note 1, at p. Return to Text Sankari Prasad v.
Return to Text Id. Return to Text Sajjan Singh v. Return to Text H.
Hart, The Concept of Law Return to Text Kesavananda Bharati v. State of Kerala4 SCC at para Return to Text Ibid. Pandit Nehru said “A constitution which is responsive to the people’s will, which is responsive to their ideas, in that it can be varied here and there, they will kesavanqnda all the more, and they will not fight against, when we want to change it. Otherwise if you make them feel that it is unchangeable and cannot be touched, the only thing to be done by those who wish to change it is to try to break it.
That is a dangerous thing and buarati bad thing. Therefore it is a desirable and a good thing for people to realise that this very fine Constitution that we have fashioned after years of labour is good so far as it goes, but as society changes, as conditions change we amend it in the proper way” quoted by Khanna, J.
Return to Text Oxford English Dictionary. Return to Text 1 K. Return to Text 4 SCC at p. Return to Text Ray. Return to Text We have no constitutional provision as in Italy where the Constitution lays down that amendments to the Constitution and other constitutional laws are passed by the Chamber of Deputies and the Senate in two successive sessions at an interval of not less than three months, Article He mentions Rajya Sabha and Lok Sabha.
Kesavananda Bharati – Wikipedia
This bicameralism probably presupposes a federal Constitution. At another place he mentions judicial review as forming part of the basic structure. Return to Text Article 1 reads: To respect and protect it shall be the duty of all State authority. Articles 2 to 19 contain the Federal Republic’s Bill of Rights. Article 19 2 provides that judg,ent no case may a basic right be infringed upon in its essential content. It shall be exercised by the people by means of elections and bhaeati and by separate legislative, executive and judicial organs.
Along with these provisions, there is also provision for judicial review in the Federal Republic. Return to Text Search On Page: