Legislative Vs. Judiciary A review of Case That Challenged The Constitution

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Kesavananda Bharati V State Of Kerala

It Was April 24, 1973,  Chief Justice Sikri And 12 Other Judges Of The Supreme Court Were Assembled To Be Delivering A Landmark Judgment In Its History. The Case Study, Kesavananda Bharati V State Of Kerala Was Contested For 68 Days, The Argument Was First Heard On October 31, 1972, And Ended On March 23, 1973. Hundreds Of Cases Had To Observe Carefully And

The Attorney-General Had To Make A Comparative Chart That Analyses The Provisions Of The Constitutions Of 71 Different Countries. All Those Efforts Were To Answer Just One Main Question: Was The Power Of Parliament To Amend The Constitution Unlimited?

In Other Words, Could The Parliament With No Consent Alter, Amend, or Abrogate Any Part Of The Constitution Even To The Extent Of Taking Away All Fundamental Rights? Article 368 Did Present Any Type Of Limitation On The Power Of The Parliament To Amend Any Part Of The

Constitution. There Is Nothing That Could Stop The Parliament From Depleting A Citizen’s Right By The Freedom Of Speech Or From His Religious Freedom. But They have Simply Repeated Amendment Which Is Made To The Constitute:

“Was There Any Inherent Or Implied Limitation On The Amending Power Of Parliament?”

The 703-Page Judgment Also Revealed A Divided Court And By A Thin Split In The Majority (7:6), It Had Been Held In The Parliament That Could Amend Any Part Of The Constitution As Long As It Doesn’t Alter Or Amend “The Basic Structure Or The Essential Features Of The Constitution Itself.”

This Had Implied Limitation On The Amendment Powers Which Were Granted To The Parliament. This Basic Structure Doctrine, As The Future Events Had Shown, Saved Indian Democracy And Kesavananda Bharati Occupies A Critical Place In The History Of Our Constitution.

Supreme Court Vs Indira Gandhi

The Basic Structure Was Initially Introduced By Justice Mudholkar By Referring To A Similar 1963 Decision Of The Supreme Court Of Pakistan. Chief Justice Cornelius Held That The President Of Pakistan Could Not Alter The “Fundamental Features” Of Their Constitution. The Kesavananda Bharati Case Study Was Actually A Compilation Of Multiple Serious Conflicts Between The Judiciary And The Government, Which Was Under

Mrs. Indira Gandhi Then. In The Year 1967, The Supreme Court Took An Extreme View, In The Golak Nath Case Study, Stated That The Parliament Could Not Amend Or Alter Any Of The fundamentals Right Or Structure Of The Constitution.

Two Years Down The Line, Indira Gandhi Nationalized Over 14 Major Banks And The Paltry Compensation Was Made Payable In The Form Of Bonds That Will Be Matured After 10 Years.

This Had Been Struck Down By The Supreme Court, Despite Upholding The Right Of The Parliament To Nationalize Banks And Other Industries. A Year Later, Mrs. Gandhi Abolished The Privy Purses.

This Was Considered To Be A Constitutional Betrayal Of The Solemn Assurance Which Had Been Given Early By Sardar Patel To All The Successional Rulers. Even This Bill Was Struck Down By The Supreme Court. But, The Abolition Of The Privy Purses Was Later Challenged By The Late Madhavrao Sc India, Who Joined The Congress Party Then. Indira Gandhi Became Determined To Cut The Supreme Court And The High Courts To Size And So, She Introduced A Series Of Constitutional Amendments That Would Have Nullified The Golak Nath, Bank Nationalisation , And Privy Purses Judgments In One Stroke.

These Amendments Gave The Parliament Unlimited Power To Alter Or Even Abolish Any Fundamental Right. This Was Exactly Why The Amendment Was Again Challenged By Kesavananda Bharati, The Head Of Maths In Kerala, And Several Coals, Sugar, And Running Companies. It Was Not Only Raised Against The Union Of India But Against All The States Which Had Intervened.

This Case Study Had Serious Political Overtones With Several Overheated Statements Which Were Exchanged Between N.A. Palkhivala For The Petitioners And H.M. Seervai And Niren De, Who Represented The State Of Kerala And The Union Of India Respectively.

The Infamous Emergency Was Then Declared In The Year 1975 With Eight New Judges Appointed To The Supreme Court. A Daring Attempt By The Chief Justice Ray To Review The Kesavananda Bharati’s Decision By Constituting Another Bench Of 13 Judges. It Was Regarded As The Finest Advocacy That Ever Heard A Case Study In The Supreme Court,

Palkhivala Made An Impassioned Plea For Not Disturbing The Earlier View. It Was Revealed That No One Had Filed A Review Petition Causing A Major Embarrassment To Ray.

So, How Was This Bench Then Constituted? The Remaining Judges Had Strongly Opposed This Impropriety And The 13-Judge Bench Was Dissolved After Two Days Of The Arguments. The Review Was Finally Over, But It Left Causing Irreversible Damage To The Reputation Of Chief Justice A.N. Ray.

Hence The Constitutional Rights Where Saved,

The Parliament Could Alter Any Part Of The Constitution, and India Would Most Certainly Have Degenerated Into A Totalitarian State Or Had A Single-Party Rule. The Constitution Would Have Also Lost Its Supremacy. One Has To Only Examine The Amendments That Were Made During Times Of Emergency. The 39th Amendment Was Another Clear Attempt To Nullify The Adverse

Allahabad High Court Ruling Against Indira Gandhi. But Then Came Along The 41st Amendment, Which Prohibits Any Case, Civil Or Criminal, From Being Filed Against The President,

Vice-President, Prime Minister, Or The Governors, Not Only During Their Term In The Office But Forever. If A Person Becomes A Governor For Just A Day, He Acquired Immunity From Any Legal Proceedings For His Lifetime.

If Parliament Were Indeed That Supreme, These Shocking And Bizarre Amendments Would Have Become Part Of The Constitution. India Still Remains The World’s Largest Democracy, All Thanks To Kesavananda Bharati, Palkhivala, And The Seven Judges Who Were In The Majority.

Legal Disclaimer: The information contained in this blog post is for general information and educational purposes only. Nothing contained in this blog post should be construed as legal advice from The Aran Law Firm or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter.

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