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.

Author: Samugor Tygot
Country: Poland
Language: English (Spanish)
Genre: Love
Published (Last): 20 September 2006
Pages: 408
PDF File Size: 10.31 Mb
ePub File Size: 6.26 Mb
ISBN: 350-9-13335-591-2
Downloads: 23202
Price: Free* [*Free Regsitration Required]
Uploader: Dorn

When the Constituent Assembly has completed its labours, His Majesty’s Government will recommend to Parliament such action as may be necessary for the cession of sovereignty to the Kesavanahda people, subject only to two matters which are mentioned in the statement and which, we believe judgmeng not controversial, namely, adequate provision for the protection of the minorities paragraph 20 of the statement and willingness to conclude a treaty with His Majesty’s Government to cover matters arising out of the transfer of power paragraph 22 of the statement P.

The point at issue was whether the Commonwealth Parliament, in the exercise of its power under Section 51 ii of the Constitution subject to the Constitution, to make laws with respect to taxation, but so as not to discriminate between States or parts of States may include the Crown in right of a State in the operation of a law imposing a tax or providing for the assessment of a tax.

Story says that Clause 18 imports no more than would remit from necessary implication see pp.

In the Preamble to the International Covenant on Economic and Social and Cultural Rightsinalienability of rights is indicated in the first Para as follows: There is no special significance given to some provisions of the Constitution as opposed to others. Kesavananda Bharathi is the case which saved the Indian democracy; thanks to Shri Kesavananda Bharati, eminent jurist Nanabhoy Palkhivala and the seven judges who were in the majority.

He observed in the course of his opinion: To read the entire article, get a premium account. Sri Swamiji is a patron of education, Kannada culture and arts, kesaananda Yakshaganamusic and dramas.

So, if the Constituent Assembly debates did not mention the need for any Basic Structure, from where did this term surface? Article 79 3 of kesavannda Basic Law lays down: Return to Text Article 1 reads: Indira Gandhi [] 2 S.

Emphasis supplied The Federal character of the Australian Constitution carries implications of its own Along with these provisions, there is also provision for judicial review in the Federal Republic.

No other Constitution combines under its wings such diverse peoples, numbering now more than millions, with different languages and religions and in different stages of economic development, into one nation, and no other nation is faced with such vast socio-economic ,esavananda.


Kesavananda Bharati v. State of Kerala – Wikipedia

After the plan of June 3,which led to the decision to partition the country and to set up two independent Dominions kesavanajda India and Pakistan, on June 8,a joint sub- committee of the Union Constitution and Provincial Constitution Committees, took kesavwnanda that the objective resolution would require amendment in view of the latest announcement of the British Government The’ announcement of June 3 had made it clear that kesavanandw independence, in the form of Dominion Status, would be conferred on India as from August 15, It further provided that no person shall be appointed as, or shall remain, a member of the Judicial Service Commission, if he is Senator or a Member of Parliament.

The only difference in respect of an amendment of the Constitution kesavananra that the Bill amending the Constitution has to be passed by a special majority here I have in mind only those amedments which do not attract the proviso to Article If that cannot be kesavanandw, then, as long as the words “Justice, social, economic and political etc.

He expressed his agreement with the reasoning of Patanjali Sastri, J. Article 43 direct that “the State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, judgmennt or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or cooperative basis in rural areas.

State of Kerala and Anr. According to him, it was legitimate to assume that the Constitution-makers visualised that Parliament would be competent to make amendments in these rights so as to meet the challenge of the problems which may arise in the course of socio-economic progress and development of the country.

But implications arising from the existence of the States as kesavanxnda of the Commonwealth and as constituents of the federation may restrict the manner in which the Parliament can lawfully exercise its power to make laws with respect to a particular subject-matter.

Kesavananda Bharati

Similarly, Article provides that the President may specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall be deemed to be Scheduled Tribes in relation to that State.

Amendment of the Schedule.

This argument was opposed, saying that the power of judicial review ensures the supremacy of the Constitution and not the kssavananda, but the same cannot be said about the amending power of Parliament.

Accordingly I do not rely on them as aids to construction. The appointment of a Governor, conditions of service of a Governor, and the Constitution and functions of the Council of Ministers, and other provisions regarding the Ministers and the conduct of government business are not mentioned at all in the proviso to Article Return to Text Quoted in Cross, supra note 1.


Part II dealt with “Citizenship”. He states that the power of amendment would also include within itself the power to add, alter or repeal the various Articles.

The Courts could not, for instance, issue a mandamus directing the Judgmenr to provide adequate means of livelihood to every citizen, or that the ownership and control of bharsti material resources of the community be so distributed as best to subserve the common good, or that there should be equal pay for equal work for both men and women.

The Constitution indicates three modes of amendments and assuming that the provisions of Article confer power on Parliament to amend the Constitution, it will still have to be considered whether as long as the preamble stands unamended, that power can be exercised with respect to any of the basic features of the Constitution. Union of India 2 SCR at I must interpret Article in the setting of our Constitution, in the background of our history and in the light of our aspirations and hopes, and other relevant circumstances.

Before proceeding with the main task, it is necessary to ask: Dhillon[] 2 S. The only emendation that I would venture is that I would prefer not to say “making implications”, because our avowed task is simply the revealing or uncovering of implications that are already there.

The only limitation, we recognise is that in regard to certain major communal issues the decision should be by a majority of each of the two major communities. According to the Chief Justice, the Court in Engineeres’ case unequivocally rejected the doctrine that there was an “implied prohibition” in the Constitution against the exercise in relation to a State of a legislative power of the Commonwealth once ascertained in accordance with the ordinary rules of construction, a doctrine which had theretofore been entertained and sought to be founded upon some supposed necessity of “protection”, as it were, “against the aggression of some outside and possibly hostile body”.

Powers and limitations are implied from necessity or the scheme of the Constitution. Assembly resist the persistent efforts of Shri B. Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.