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.
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The case was a culmination of a series of cases relating to limitations to the power to amend the Indian constitution. Mirchandani 1 January These discussions covered such important matters as the prohibition of discrimination on grounds of race, religion, caste, etc. It may be that these observations are obiter but these deserve our careful consideration, coming as they do from the Judicial Committee.
Kesavananda Bharati v. State of Kerala – Wikipedia
Lord Greene is not alone in this approach. Under Article the Governor is enabled to suggest the desirability of introducing any such amendments as he may recommend kesavanajda his message.
All articles with dead external links Articles with dead external links from May Articles with permanently dead external links Webarchive template wayback links CS1 maint: Seervai and the learned Attorney General.
This contention is not supported by the speeches The right to property comes last and is dealt with the Article Palkhivala in support of his argument that Part III similarly entrenched various religious and racial and other matters and these represented solemn balance of rights between the citizens of India, the fundamental conditions on which inter se they accepted the Constitution of India and these are, therefore, unalterable under the Constitution of India.
Along with these provisions, there is also provision for judicial review in the Federal Republic. After setting out certain directive principles, he observed: Hart, The Concept of Law But a law although it be with respect to a designated subject keaavananda, cannot be jurgment the peace, order and good government of the Commonwealth if it be directed to the States to prevent their carrying out their functions as parts of the Commonwealth Although the decision in Sankari Prasad’s  S.
The next passage, a part of which I have already extracted, which deals with the difference between McCawley’s case and Ranasinghe’s  A. The Congress shall have power The Seventeenth Amendment has not derogated from the sovereignty, the republican form of government and the federal structure, and the question whether they can be touched by amendment does not arise for decision.
State of Kerala and Anr. I come to the same conclusion by another line of reasoning. Applied to fundamental rights, it would be that while fundamental rights cannot be abrogated, reasonable abridgement of fundamental rights could be effected in the public interest.
The way the Preamble is drafted leaves no doubt that what follows, or is annexed to, the Preamble, is the Constitution of India. To hold this would mean prima facie that the most solemn parts of our Constitution stand on the same footing as any other provision and even on a less firm ground than one on which the articles mentioned in the proviso stand. Since such alterations, even if express, can only be made by laws which comply with the special legislative procedure laid down in Section 29 4the Ceylon legislature has not got the general power to legislate so as to bhaeati its Constitution by ordinary majority resolutions, such as the Queensland legislature was found to have under Section 2 of its Constitution Actbut is rather in the position, for effecting such amendments, that that legislature was held to be kesavanandda by virtue of its Section 9namely, compelled to operate a special procedure in order to achieve the desired result.
Kesavananda Bharati – Wikipedia
Seervai’s written submissions, clearly shows that the Judicial Committee in this passage was not dealing with the amendment of Section 29 2 of the Ceylon Constitution and had understood McCawley’s  A. Return to Text Ray. In a statement circulated to members of the Assembly on July 18, Pandit Jawaharlal Nehru inter alia, observed that the Preamble was covered more or less by the Objectives Resolution which it was intended to incorporate in the final Constitution subject to some modification on account of the political changes resulting from partition.
It is in the latter sense that in my view of the matter, implications have a place in the interpretation of the Constitution: The Privy Council has established and illustrated this in many decisions.
These provisions of the Indian Independence Act amply demonstrate that when the Constituent Assembly started functioning, it knew, if it acted under the Indian Independence Act, that it could limit the powers of the future Dominion Parliaments. He mentions Rajya Sabha and Lok Sabha. The Constituent Assembly deliberately decided not to do so.
It is this voice of the people, and not the Courts, that brought an imperious Indira to her knees. Therefore, the words “amendment of the Constitution” in spite of the width of their sweep and in spite of their amplitude, could not have the effect of empowering the Parliament to destroy or abrogate the basic structure or framework of the Constitution.
Article enables the President to appoint a Commission to investigate the conditions of socially and educationally backward classes within the territory of India which shall present a report and make recommendations on steps that should be taken to remove difficulties and improve their condition.
H R Khanna has given in his judgment that the Parliament had full power to amend the Constitution, however, since it is only a “power to amend”, the basic structure or framework of the structure should remain intact.
One of the inferences that can be drawn is that the Constitution-makers never contemplated, or imagined that Article 52 will be altered and there shall not be a President of India. In the original Article 2in conferring power on the President to make regulations for the peace and good government of the territories in part D of the First Schedule, it is stated that “any regulation so made may repeal or amend any law made by Parliament.
Judicial review does not necessarily reflect what the Constitution says. Hari Shankar Bagla v.
Retrieved 24 June Prince Ernest Augustus of Hanover  A.