Constitutional Law - Rameshwar Prasad

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NATURE OF THE INDIAN CONSTITUTION
Kesavananda Bharati v. State of Kerala
AIR 1973 SC 1461

[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. See also Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299; Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789; Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd., AIR 1983 SC 239; L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.]

In this case, the validity of 24th, 25th and 29th amendments to the Constitution of India was challenged. The main question related to the nature, extent and scope of amending power of the Parliament under the Constitution. The views of the majority were as follows:

(1) L.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;

S.M. SIKRI C.J. - 90. This Preamble, and indeed the Constitution, was drafted in the light and direction of the Objectives Resolution adopted on January 22, 1947, which runs as follows:
(1) THIS CONSTITUENT ASSEMBLY declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Constitution;
(2) wherein the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside British India and the States, as well as such other territories as are willing to be constituted into the Independent Sovereign India, shall be a Union of them all; and

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Rameshwar Prasad v. Union of India

(3) wherein the said territories, whether with their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the law of the Constitution, shall possess and retain the status of autonomous units, together with residuary powers, and exercise all powers and functions of government and administration, save and except such powers and functions as are vested in or assigned to the Union, or as are inherent or implied in the Union or resulting therefrom; and

(4) wherein all power and authority of the Sovereign Independent India, its constituent parts and organs of government, are derived from the people; and (5) wherein shall be guaranteed and secured to all the people of India justice, social, economic and political; equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality; and

(6) wherein adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes; and
(7) whereby shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea and air according to justice and the law of civilized nations; and
(8) this ancient land attains its rightful and honoured place in the world and makes its full and willing contribution to the...
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