Kesavananda Bharati v. State of Kerala |

Kesavananda Bharati v. State of Kerala

"While the parliament has wide powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of ". Constitution". AIR 1973 SC 146
Relevant provisions- 24th, 25th, 29th Constitutional Amendment, Art. 368, 31C of the Constitution.

Ratio-The Supreme Court laid down the Theory of Basic Structure in this case. According to this theory, some of the provisions of the Constitution of India form its basic structure which are not amendable by Parliament by exercise of its constituent power under Article 368. Our Constitution is the written and controlled Constitution. It can be amended only to the extent of and in accordance with the provisions contained therein, the principal provision being Article 368, Some of the provisions of the Constitution of India from its basic structure which are not amendable by parliament even by exercise of its constituent power under Article 368.

Brief facts of the Case – In this case, the validity of 24th, 25th and 29th amendments to the Constitution of India was challenged.

Legal Issue- The main question was related to the nature, extent and scope of amending power of the Parliament under the Constitution.

Decision-
The views of the majority were as follows:
(1) I.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643 (which had held that fundamental rights were beyond the amending powers of Parliament) was overruled
(2) The Constitution (Twenty-fourth Amendment) Act, 1971 (giving power to Parliament to amend any part of the Constitution) was valid
(3) 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 except that some judges gave a few examples.
(4) The amendment of Article 368(4) excluding judicial review of a constitutional amendment was unconstitutional.
(5) The amendment of Article 31C containing the words “and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy” was held invalid.
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 of the following features:

(1) Supremacy of the Constitution
(2) Republican and Democratic forms of Government
(3) Secular character of the Constitution
(4) Separation of powers between the legislature, the executive and judiciary
(5) Federal character of the Constitution.

The above structure is built on the basic foundation i.e. the dignity and freedom of the individual. This is supreme importance. This cannot by any form of amendment be destroyed.

March 1, 2017

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