KESHAVANAND BHARTI V. STATE OF KERALA-analysis

BRIEF ABOUT THE CASE

This case is basically also known as the ‘FUNDAMENTAL RIGHT’S CASE’. The petitioner that is Keshvananda Bharti from the side of which the counsel is appearing before the H’onable court has challenged the validity of the Kerala Land Reforms Act, 1963. The petitioner is permitted to challenge the validity of the 24^th, 25^th & 29^th Amendment to the constitution also. 
 

TWO CONTENTIONS WHICH IS BEEN HELD BEFORE THE H’ONABLE COURT IS:

1. What is the extent of  amending power confered by article 368 of the constitution?
2. Whether the word amendment is included within the meaning of word law in Article 13(2)?

1. Whether the word ‘Amendment’ is included in the word ‘LAW’ under article 13(2)?

The Constitutional amendment made under Art 368 is a law with in the meaning of Art 13 (2).

First of all I want to mention the wordings of article 13(2) and then of article 13(3)(a):

Article 13(2): the state shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

Article 13(3): in this article, unless the context otherwise requires,-

1. “law” includes any ordinance, order, or by law, rule, regulation notification, custom or usage having in the territory of india the force of law;

According to Article 13(2), the state ‘shall not make any law’ which takes away or abridges the Fundamental Rights ; and law contravening a fundamental right is, to the extent of the contravention, void.

the definition of "law" in Art 13(2) of the Constitution includes every branch of law, statutory, constitutional, etc., and therefore, the power to amend in whichever branch it may be classified, if it takes away or abridges fundamental rights would be void there under.

And to clearify the concept of state I want to mention Article 12 which clearly includes government and parliament under its umbrella.

Matters can only be amended if the Bill passed by the two Houses by necessary majority is ratified by the legislatures of not less than one-half of the States by resolutions to that effect. But when the necessary ratification has been made, the Bill with respect to these matters is then presented to the President and on his assent being given, the Constitution stands amended in accordance with the terms of the Bill.

The Constitution of India provides for similar procedure for making an ordinary law. In the first place, it is provided that the amendment must be initiated by the introduction of a "bill in either House of Parliament" a familiar feature of Parliament procedure as provided under Article 107(1) which says "A bill may originate in either House of Parliament". Then, the bill must be "passed in each House," just what Parliament does when it is called upon to exercise its normal legislative function under Article 107(2) and finally, the bill thus passed must be "presented to the President" for his "assent", again a parliamentary process through which every bill must pass before it can reach the statute-book, (Article 111). Therefore procedure for amendment of the Constitution contained in Art 368 is more or less assimilated to the procedure for making ordinary laws under the Constitution. The argument is that constitutional amendment is also passed by the two Houses of Parliament, and is assented to by the President like ordinary legislation, with this difference that a special majority is required for certain purposes and a special majority plus ratification is required for certain other purposes.

Under Art 368, a constitutional amendment is to be enacted by following a procedure very similar to the procedure for making law. The fact that there are other conditions, such as, a larger majority and in the case of articles mentioned in the proviso a ratification by Legislatures is provided, does not make the amendment anytheless a law. Therefore the amendment made under Art 368 is law and is subject to Art 13

Overruling the position adopted by the court in Shankari Prasad’s Case and Sajjan Singh’s Case, it was now ruled in the Golaknath’s Case that the term ‘LAW’ in a comprehensive sense would include constitutional law as well. Article 13(2) gives an inclusive definition of ‘LAW’ which would take in even constitutional law. The court in it s judgement in Golaknath’s Case formulated it’s position as follows: “an amendment of the constitution is law within the inclusive definition of law under Article 13(2) of the constitution and, as the entire scheme of the constitution postulates the inviolability of Part III thereof, Article 368 shall not be construed as to destroy the structure of our constitution”.

And this judgement was upheld in the Golaknath’s Case with a 6:5 majority.

Justice Hidayatullah,  in a separate judgement held that, because of Article 13, there was no power to amend Fundamental Rights as there was no difference between legislative and amending process.

And to avoid the chaos and unsettle condition in the country due to this part of judgement in Golaknath’s case the five judges took recourse to the doctrine of ‘Prospectiv overruling’ because if the Supreme Court give effect to its  view of non-amendability of the Fundamental Rights with retrospective effect and were to holdthe 17^th amendment void, it would affect the constitutional validity of this legislation. But, in future, parliament would have no power to take way or abridge any of the Fundamental Rights. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

2. Whether constitutional amendment made under the article 368 can abridge Fundamental Rights mention under constitution of India?

Now first let us consider the meaning of fundamental right “Fundamental rights can be termed as basic rights of the individual.” These rights ensure the fullest physical, mental and moral development of every citizen. Fundamental Rights generate a feeling of security amongst the minorities in the country. They establish the framework of ‘democratic legitimacy’ for the rule of the majority. No democracy can function in the absence of basic rights such as freedom of speech and expression, freedom of religion etc.

They are embodied in Part III of the Constitution and they may be classified thus :(i) right to equality, (ii) right to freedom, (iii) right against exploitation, (iv) right to freedom of religion, (v) cultural and educational rights, (vi) right to property, and (vii) right to constitutional remedies. They are the rights of the people preserved by our Constitution.

It is been clearly mentioned under article 13(1) that After having declared the fundamental rights, that all laws in force in the territory of India immediately before the commencement of the Constitution, insofar as they are inconsistent with the said rights, are, to the extent of such inconsistency, void.

Article 13 also enjoins the State not to make any law which takes away or abridges the said rights and declares such laws, to the extent of such inconsistency, to be void. It will, therefore, be seen that fundamental rights are given a transcendental position under our Constitution and are kept beyond the reach of Parliament.

Pandit Jawaharlal Nehru, on April 30, 1947 in proposing for the adoption of the Interim Report on Fundamental Rights, said thus:

"A fundamental right should be looked upon, not from the point of view of any particular difficulty of the moment, but as something that you want to make permanent in the Constitution. The other matter should be looked upon - however important it might be - not from this permanent and fundamental point of view, but from the more temporary point of view".

The parliament which can curtail one fundamental right today may in future take away all the fundamental rights guaranteed under Part III. Time may come when the parliament in exercise of its power under Art. 368 remove the chapter of fundamental right. And in doing so, parliament will destroy the basic feature of the constitution.

Therefore the amending power of the parliament does not extend to curtailment of any fundamental right. The importance attached to the fundamental freedoms is so transcendental that a bill enacted by a unanimous vote of all the members of both the Houses is ineffective to derogate from its guaranteed exercise.

Article 13 (2) and (3) of the Constitution of India Provides that:

(2) The state shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall be, to the extent of contravention, be void

(3) In this article unless the context otherwise requires, -

(a) “Law” includes any ordinance, order, bye law, rule, regulation, notification, custom usage having in territory of India the force of law.

The word “law used in Article 13 (3) (a) is inclusive and wide enough to cover constitutional amendments& constitutional amendment is a law within the meaning of Art 13. Therefore the Parliament cannot make an amendment to the constitution abridging the Fundamental Rights.

Moreover Fundamental Rights forms the basic structure of the Constitution and therefore they cannot be amended by parliament by virtue of amending power under Art 368 of the Constitution of India

In the case of the Golaknath  in 1967 fundamental rights was made un-amendable, to make Fundamental Rights non-amendable, the majority refused to accept the thesis that there is any distinction  between ‘legislative’ and ‘constituent’ processes.  
 

This Court also noticed the paramountcy of the fundamental rights in many decisions.

• In A. K. Gopalan v. State of Madras they are described as "paramount"
• In State of Madras v. Smt. Champakam Dorairajan as "sacro-sanci"
• In Pandit M. S. M. Sharma v. Shri Sri Krishna Sinha as "rights reserved by the people"
• In Smt. Ujjam Bai v. State of Uttar Pradesh as "inalienable and inviolable" and in other cases as "transcendental". The minorities regarded them as the bedrock of their political existence and the majority considered them as a guarantee for their way of life. This, however, does not mean that the problem is one of mere dialectics.