Leading Cases For Supreme Court AOR Exams 2021 [Part 3- Constitutional Amendments and Reservations]

This part of the 'Leading Cases for AoR Exams' article series deals with two topics: Constitutional Amendments (1, 3, 6, 9, 33, 36) and Reservations (7,49).His Holiness Kesavananda Bharati Sripadagalavaru v. State of KeralaCase: WP(C) 135 of 1970; 24 April 1973; CJI Sikri, S.M., Justices Shelat, J.M., Hegde, K.S. & Grover, A.N., Ray, A.N. & Reddy, P.J. & Palekar, D.G., Khanna, Hans Raj Mathew, K.K. & Beg, M.H., Dwivedi, S.N. Mukherjea, B.K. Chandrachud, Y.V.Citation: AIR 1973 SC 1461; [1973] Suppl. SCR 1; (1973) 4 SCC 225Background: In Golak Nath vs. State of Punjab, the Supreme Court (6:5) reversed its earlier rulings that no part of the Constitution, including the fundamental rights, was unamendable. It was held that an amendment of the Constitution under article 368 is "law" within the meaning of article 13 of the Constitution and therefore, if a Constitution amendment "takes away or abridges" a Fundamental Right conferred by Part III, it is void. In response to this judgment, the Parliament passed the Constitution (Twenty-fourth Amendment) Act, 1971, to provide expressly that Parliament has power to amend any part of the Constitution including the provisions relating to Fundamental Rights. A new clause (4) was inserted in article 13 of the Constitution to provide that the provisions of article 13 shall not be applicable to any amendment made under article 368. Article 368 was also amended to provide expressly that Parliament has power to amend any provision of the Constitution. The amendment further provided that when a Constitution Amendment Bill is presented to the President for his assent, it would be obligatory upon him to give his assent thereto. The validity of the 24th amendment, along with 25th and 29th Constitution Amendments were challenged before the Supreme Court in Kesavananda Bharathi case. Since it involved reconsideration of a decision rendered by a 11 judge bench, a thirteen bench judge was constituted to decide these issues. Though it overruled Golak Nath and also upheld the 24th Amendment, the majority held that Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution. The observations regarding the 'basic structure' theory in 'majority' judgments are the following:Sikri CJ: Parliament to abrogate or take away fundamental rights or to completely change the fundamental features of the Constitution so as to destroy its identity. Within these limits Parliament can amend every article.Shelat and Grover JJ: Though the power to amend cannot be narrowly construed and extends to all the Articles it is not unlimited so as to include the power to abrogate or change the identity of the Constitution or its basic features.Hegde and Mukherjea JJ: Though the power to amend the Constitution under Article 368 is a very wide power, it does not yet include the power to destroy or emasculate the basic elements or the fundamental features of the Constitution. (Hegde and Mukherjea JJ)Jaganmohan Reddy J: Parliament could amend Art. 368 and Art. 13 and also all the fundamental rights and though the power of amendment is wide, it is not wide enough to totally abrogate or emasculate or damage any of the fundamental rights or the essential elements in the basic structure of the Constitution or of destroying the identity of the Constitution. Within these limits, Parliament can amend every article of the Constitution. Parliament cannot under Art. 368 expand its power of amendment so as to confer on itself the power to repeal, abrogate the Constitution or damage, emasculate or destroy any of the fundamental rights or essential elements of the basic structure of the Constitution or of destroying the identity of the Constitution, and on the construction placed by me,the Twenty-fourth Amendment is valid, for it has not changed the nature and scope of the amending power as it existed before the Amendment. Khanna J: The power of amendment under Art. 368 does not include the power to abrogate the Constitution nor does it include the power to alter the basic structure or framework of the Constitution. Subject to the retention of the basic Structure or framework of the Constitution, the power of amendment is plenary and includes within itself the power to amend the various articles of the Constitution including those relating to fundamental rights as well as those which may be said to relate to essential features. No part of a fundamental right can claim immunity from the amendatory process by being described as the essence or core of that right. The power of amendment would also include within itself the power to add, alter or repeal the various articles. According to judgment by Sikri CJ, the true position is that every provision of the Constitution can be amended provided that the basic foundation and structure of the constitution remains the same. The basic structure, according to the judge, may be said to consist of the following features: Supremacy of the Constitution;...

Leading Cases For Supreme Court AOR Exams 2021 [Part 3- Constitutional Amendments and Reservations]

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