Posted on: September 9, 2020 Posted by: Isha Shah Comments: 1
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THE CONSTITUTION OF INDIA –

The Indian Constitution being the supreme law of India is a document that lays down the framework delimitating fundamental political code, structure, procedures, powers, and duties of government institutions and sets out fundamental rights, directive principles, and the duties of citizens. It came into force on 26th January 1950.

BACKGROUND –

There has been a longstanding debate on the Parliament’s power to amend the key provisions of the Constitution. The Supreme Court recognized absolute power of the Parliament pertaining to the constitutional amendments, as seen in the judgements of Shankari Prasad Singh Deo vs. Union of India (1951) and Sajjan Singh vs. State of Rajasthan (1965). Previously, the Constitution in its entirety was considered to be amendable by passing a Constitution Amendment Act in compliance with the ingredients of Article 368, which gave the Parliament the power to amend any provision of the Constitution, including the Fundamental Rights and Article 368. In both the aforesaid cases, the Supreme Court upheld the Parliament’s power to amend the rights. It was stated that Article 13(2) did not affect the amendments made under Article 368.

  • THE GOLAKNATH CASE (1967) –

FACTS OF THE CASE:

  • The petitioners are the son, daughter and grand-daughters of one Henry Golak Nath who died on July 30, 1953.
  • Henry and William Golak Nath’s family held over 500 acres of land in Punjab. The State Government held that the brothers could keep only thirty acres each, a few acres would go to the tenants and few would be considered as surplus.
  • This was challenged by Golak Nath’s family in the Supreme Court under Article 32 as a violation of Articles 19(1)(f) and 19(1)(g).
  • The main issues highlighted in this 11-judge-bench case were whether an amendment was to be followed as law and whether fundamental rights could be amended or not.

JUDGEMENT:

The Supreme Court passed a verdict by a majority of 6:5. The Bench held that a constitutional amendment under Article 368 was just an ordinary ‘law’ within the scope of Article 13(3) of the Constitution. Hence, it was held that the Parliament could not make any law that violated the Fundamental Rights contained in Part III of the Constitution. Therefore, all constitutional amendments thus far which were considered in contravention or which had made an exception to the fundamental rights chapter of the Constitution were said to be void.

  • THE KESAVANANDA BHARATI CASE (1973) –

FACTS OF THE CASE:

  • In February of 1970, Swami Kesavananda Bharati challenged the Kerala Government’s attempts, under two-state land reforms act, to impose restrictions on the management of its property.
  • Swami thus filed a petition under Article 26, which deals with the right to manage religiously owned property without government interference.

JUDGEMENT:

The Supreme Court reviewed the Golak Nath Judgement, and further considered the validity of the 24th, 25th, 26th and 29th amendments. The case made history since it was heard by the largest Constitution Bench of 13 judges. The Court affirmed with the view that the Parliament held the power to amend the fundamental rights. Although, it stressed on an amendment under Article 368 as an addition or change in any of the provisions of the Constitution within the wide ambit of the Preamble and the Constitution to carry out the objectives mentioned in the Preamble and the Directive Principles. The Court took the stand that every provision of the Constitution could be amended, provided that the basic foundation and structure of the Constitution remained intact.

BASIC STRUCTURE OF THE CONSTITUTION –

The underlying principle or the reason for the very existence of the Basic Structure is to preserve the ideals and philosophy of the original constitution. The Supreme Court laid down the concept of ‘Basic Structure’ in the landmark case of Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. 

There is no mention of the exact term ‘Basic Structure’ in the Constitution. The concept faced a gradual evolution in-hand with the judiciary in its attempt to protect people’s basic individual rights. Further, there are two sides to the same. Critics of the doctrine have called it undemocratic since the unelected judges hold the capacity to strike down a constitutional amendment. While the partisans for the same have hailed it as the citizens’ safety shaft against majoritarianism and authoritarianism.

Isha Shah
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Second year BALLB Student at SVKM's Pravin Gandhi College of Law

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