The Ksavananda Case (1973)
The Ksavananda Case (1973)
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In 1967, in Golak Nath vs. The State of Punjab, a bench of eleven judges
(constituted for the first time) of the Supreme Court deliberated as to
whether any part of the Fundamental Rights provisions of the constitution
could be revoked or limited by amendment of the constitution. This question
had previously been considered in Shankari Prasad v. Union of India and
Sajjan Singh v. State of Rajasthan. In both cases, the power to amend the
rights had been upheld on the basis of Article 368. Chief Justice Subba Rao
writing for the majority (five judges dissenting) held that:
* A law to amend the constitution is a law for the purposes of Article 13.
* Article 13 prevents the passing of laws which "take away or abridge" the
Fundamental Rights provisions.
* Article 368 does not contain a power to amend the constitution but only a
procedure.
* The power to amend comes from the normal legislative power of
Parliament.
* Therefore, amendments which "take away or abridge" the Fundamental
Rights provisions cannot be passed.
On the morning of November 12 Chief Justice Ray tersely pronounced that the
bench was dissolved, and the judges rose. The doctrine could thus famously
be applied in Indira Gandhi vs. Raj Narain to the 39th Amendment of 1975,
which attempted, among other provisions, to pass legislative judgment over
the election of Indira Gandhi in 1971.
[edit] Extending the doctrine (1981)
The doctrine was expanded in the Minerva Mills case of 1981. In Minerva Mills
Ltd. v. Union of India, Palkhivala successfully moved the Supreme Court to
declare that Clauses (4) and (5) of Article 368 of the Constitution are invalid.
These clauses had been inserted as a response by the Gandhi government to
the decision in the Kesavananda case by the Constitution (Forty-Second
Amendment) Act, s. 55. The clauses read:
(5) For the removal of doubts, it is hereby declared that there shall be no
limitation whatever on the constituent power of Parliament to amend by way
of addition, variation or repeal the provisions of this Constitution under this
article.
The Court held that since, as had been previously held in the Kesavananda
case, the power of Parliament to amend the constitution was limited, it could
not by amending the constitution convert the power into an unlimited power
(as it had purported to do by this amendment). The court went on to
invalidate the amendment of Article 31-C by the Forty-second Amendment.
This view of Article 31-C, but not the basic structure doctrine, was questioned
but not overruled in Sanjeev Coke Mfg. Co v Bharat Cooking Coal Ltd.