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160-656: In Kesavananda , Justice Hans Raj Khanna propounded that the Constitution of India has certain basic features that cannot be altered or destroyed through amendments by the Parliament of India . Key among these "basic features", as expounded by Justice Khanna, are the fundamental rights guaranteed to individuals by the constitution. The doctrine thus forms the basis of the power of the Supreme Court of India to review and strike down constitutional amendments and acts enacted by

320-633: A secular state in India. According to the Constitution, there is no official State religion, and the State is required to treat all religions equally, impartially and neutrally. The Constitution guarantees the right to life and personal liberty, which in turn cites specific provisions in which these rights are applied and enforced: The Cultural and Educational rights, given in Articles 29 and 30, are measures to protect

480-484: A "transcendental position" and are beyond the reach of Parliament. It also declared any amendment that "takes away or abridges" a Fundamental Right conferred by Part III as unconstitutional. In 1973, the basic structure doctrine was formally introduced with rigorous legal reasoning in Justice Hans Raj Khanna 's decisive judgment in the landmark decision of Kesavananda Bharati v. State of Kerala . Previously,

640-482: A "vehicle for judicial aggrandisement of power", and 5 accepted that some limitations exist but did not endorse the basic structure doctrine. The judgement identified democracy, federalism and independence of the judiciary as among the characteristics protected by the doctrine. Before this decision, it was unclear whether the basic structure doctrine applied in Pakistan. The doctrine was considered and rejected shortly after

800-472: A foreign state. Thus, Indian aristocratic titles and title of nobility conferred by the British have been abolished. However, military and academic distinctions can be conferred on the citizens of India. The awards of Bharat Ratna and Padma Vibhushan can be used by the recipient as a title and do not, accordingly, come within the constitutional prohibition". The Supreme Court, on 15 December 1995, upheld

960-414: A government by opinion and therefore, the means of formulating public opinion should be secured to the people of a democratic nation. For this purpose, the constitution guaranteed to all the citizens of India the freedom of speech and expression and various other freedoms in the form of the fundamental rights. All people, irrespective of race, religion, caste or gender, have been given the right to petition

1120-525: A large majority, Congress leaders appointed persons from diverse political backgrounds to positions of responsibility for developing the constitution and national laws. Notably, B. R. Ambedkar became the chairperson of the Drafting Committee , while Jawaharlal Nehru and Sardar Vallabhbhai Patel became chairpersons of committees and sub-committees responsible for different subjects . A notable development during that period having significant effect on

1280-559: A lecture to the law faculty in the Banaras Hindu University . The argument, Noorani narrates made way to M K Nambyar who read the excerpt out in Golaknath . "Perhaps the position of the Supreme Court is influenced by the fact that it has not so far been confronted with any extreme type of constitutional amendments. It is the duty of the jurist, though, to anticipate extreme cases of conflict, and sometimes only extreme tests reveal

1440-420: A limited amending power is one of the basic features of our Constitution and therefore, the limitations on that power can not be destroyed. In other words, Parliament can not, under Article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features. The donee of a limited power cannot by the exercise of that power convert

1600-504: A lone dissenting judgement in 1976. He entered the Indian judiciary in 1952 as an Additional District and Sessions Judge and subsequently was elevated as a judge to the Supreme Court of India in 1971 where he continued till his resignation in 1977. He is most notably remembered for his minority judgment in the highly publicized ADM Jabalpur v. Shiv Kant Shukla habeas corpus case during

1760-472: A majority of 3–2, the Supreme Court held, "When article 368 confers on Parliament the right to amend the Constitution, the power in question can be exercised over all the provisions of the Constitution. It would be unreasonable to hold that the word "Law" in article 13 (2) takes in Constitution Amendment Acts passed under article 368." In both cases, the power to amend the rights had been upheld on

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1920-482: A margin of 7–6, that although no part of the constitution, including fundamental rights, was beyond the amending power of Parliament (thus overruling the 1967 case), the "basic structure of the Constitution could not be abrogated even by a constitutional amendment". The decision of the Judges is complex, consisting of multiple opinions taking up one complete volume in the law reporter "Supreme Court Cases". The findings included

2080-462: A monument to Justice H R Khanna of the Supreme Court. It was Justice Khanna who spoke out fearlessly and eloquently for freedom this week in dissenting from the Court's decision upholding the right of Prime Minister Indira Gandhi's Government to imprison political opponents at will and without court hearings... The submission of an independent judiciary to an absolutist government is virtually the last step in

2240-462: A number of subsequent cases and judgments relying heavily upon it to strike down Parliamentary amendments that were held to be violative of the basic structure and therefore unconstitutional. Primary among these was the imposition of a state of emergency by Indira Gandhi in 1975, and her subsequent attempt to suppress her prosecution through the 39th Amendment. When the Kesavananda case was decided,

2400-681: A person could be deprived of his life or personal liberty without authorisation by law? Could the ruling party, if it sees its majority shrinking, amend Article 368 to the effect that the amending power rests with the President acting on the advice of the Prime Minister? Could the amending power be used to abolish the Constitution and reintroduce, let us say, the rule of a moghul emperor or of the Crown of England? I do not want, by posing such questions, to provoke easy answers. But I should like to acquaint you with

2560-412: A person professing that particular religion. Article 17 abolishes the practice of untouchability in any form, making it an offense punishable by law. The Protection of Civil Rights Act, 1955 was enacted by Parliament to further this objective. Article 18 prohibits the State from conferring any titles other than military or academic distinctions, and the citizens of India cannot accept titles from

2720-405: A person to work without wages where he was legally entitled not to work or to receive remuneration for it. However, it permits the State to impose compulsory service for public purposes, including conscription and community service . The Bonded Labour System (Abolition) Act, 1976, has been enacted by Parliament to give effect to this Article. Article 24 prohibits the employment of children below

2880-403: A procedure must be just, fair and reasonable, and effectively reading due process into Article 21. In the same case, the Supreme Court also ruled that "life" under Article 21 meant more than a mere "animal existence"; it would include the right to live with human dignity and all other aspects which made life "meaningful, complete and worth living". Subsequent judicial interpretation has broadened

3040-412: A result, Article 21, which prevents the encroachment of life or personal liberty by the State except in accordance with the procedure established by law, was, until 1978, construed narrowly as being restricted to executive action. However, in 1978, the Supreme Court in the case of Maneka Gandhi v. Union of India extended the protection of Article 21 to legislative action, holding that any law laying down

3200-456: A state, the rights conferred by Article 19 (freedoms of speech, assembly and movement, etc.) remain suspended. Hence, in such a situation, the legislature may make laws that go against the rights given in Article 19. The President may by order suspend the right to move the court for the enforcement of other rights as well. The Right to Equality is one of the chief guarantees of the Constitution. It

3360-469: A vast, diverse nation and population. In 1928, the Nehru Commission composing of representatives of Indian political parties proposed constitutional reforms for India that apart from calling for dominion status for India and elections under universal suffrage, would guarantee rights deemed fundamental, representation for religious and ethnic minorities, and limit the powers of the government. In 1931,

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3520-590: A young age, and the household was run by his grandmother. Khanna took interest in law from an early age and did complete his schooling at DAV High School, Amritsar. After completing his schooling at D.A.V. High School , Amritsar (1918–1928), He studied at the Hindu College, Amritsar, and Khalsa College, Amritsar , graduating with a Bachelor of Arts, before joining the Punjab University Law College , Lahore (1932–1934). He married Uma Mehra in 1934 at

3680-506: Is almost maternal." However, Justice Khanna resisted the pressure to concur with this majority view. He wrote in his dissenting opinion: The Constitution and the laws of India do not permit life and liberty to be at the mercy of the absolute power of the Executive . . . . What is at stake is the rule of law. The question is whether the law speaking through the authority of the court shall be silenced and rendered mute... detention without trial

3840-477: Is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of Article 368 ?" Supreme Court, through the decisive judgement of Justice H. R. Khanna in Keshavananda Bharti v. State of Kerala (1973) case, declared that

4000-436: Is an anathema to all those who love personal liberty. In the end, he quoted Justice Charles Evans Hughes : A dissent is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may correct the error into which the dissenting judge believes the court to have been betrayed. Before delivering this opinion, Justice Khanna mentioned to his sister: I have prepared my judgment, which

4160-461: Is an integral part of Right to Life and Personal Liberty guaranteed in Article 21 of the Constitution," The fundamental rights have been revised for many reasons. Political and other groups have demanded that the right to work , the right to economic assistance in case of unemployment, old age, and similar rights be enshrined as constitutional guarantees to address issues of poverty and economic insecurity, though these provisions have been enshrined in

4320-525: Is available to all people and so is the right to freedom of religion. On the other hand, freedoms of speech and expression , and freedom to reside and settle in any part of the country are reserved for citizens alone, including non-resident Indian citizens . The right to equality in matters of public employment cannot be conferred to overseas citizens of India . Fundamental rights primarily protect individuals from any arbitrary state actions, but some rights are enforceable against individuals. For instance,

4480-404: Is embodied in Articles 14–18, which collectively encompass the general principles of equality before law and non-discrimination and Articles 17–18 which collectively encompass further the philosophy of social equality. Article 14 guarantees equality before law as well as equal protection of the law to all people within the territory of India. This includes the equal subjection of all persons to

4640-575: Is going to cost me the Chief Justice-ship of India. True to his apprehensions, his junior, M. H. Beg , was appointed Chief Justice in January 1977. This was against legal tradition and was widely protested by bar associations and the legal community. Justice Khanna resigned on the same day. After his resignation Bar Associations all over India, in protest, abstained from the courts and took out black-coat processions, though to no avail. However, this

4800-404: Is his judgment in the landmark case of Kesavananda Bharati . In 1973, the Supreme Court constituted its largest-ever bench of 13 judges to decide whether Parliament had the unfettered right to amend the Constitution or not. On 24 April 1973, seven out of 13 judges held that Parliament's power to amend the Constitution was limited. Six other judges in the case were of the view that Parliament's power

4960-649: Is not a part of the law of Belize and does not apply to the Belize Constitution". The Cypriot Supreme Court used the basic structure doctrine in 29 October 2020, in ΚΛΟΓΟΔΙΚΕΙΟ ΚΥΠΡΟΥ, ΑΝΔΡΕΑΣ ΜΙΧΑΗΛΙΔΗΣ κ.α. v. ΓΕΝΙΚΟΥ ΕΦΟΡΟΥ ΕΚΛΟΓΗΣ κ.α., 29 Οκτωβρίου 2020, (Εκλογική Αίτηση Αρ. 1/2019), to declare unconstitutional a constitutional amendment that modified the election legal framework. The Supreme Court of Israel in majority judgement on January 1, 2024 ruled against an amendment passed by Parliament in July, 2023 which scrapped

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5120-426: Is our heritage bequeathed to us by our founding fathers, no less are we, the people of India, the trustees, and custodians of the values which pulsate within its provisions! A constitution is not a parchment of paper, it is a way of life and has to be lived up to. Eternal vigilance is the price of liberty and in the final analysis, its only keepers are the people. The imbecility of men, history teaches us, always invites

5280-440: Is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution. It protects the inner sphere of the individual from interference from both State and non-State actors and allows individuals to make autonomous life choices. On 24 August 2017, the Supreme Court of India in its Right to Privacy verdict ruled that: "Right to Privacy

5440-548: Is that Parliament can amend the Constitution but cannot destroy its "basic structure". Aside from India, the basic structure doctrine has been adopted in a number of jurisdictions, and rejected in some others. The basic structure doctrine was adopted by the Supreme Court of Bangladesh in 1989, by expressly relying on the reasoning in the Kesavananda case, in its ruling on Anwar Hossain Chowdhary v. Bangladesh . However, Bangladesh

5600-523: Is the only legal system to introduce this concept through constitutional provisions. Article 7B of the Constitution of Bangladesh introduced some parts of it as basic provisions of the constitution and referred to some others (which are not properly defined) as basic structure of the constitution and declares all of these as not amendable. The basic structure doctrine was invoked by the Supreme Court of Judicature of Belize in Bowen v Attorney General in rejecting

5760-410: The 1975 - 1977 Indian Emergency , in which the remaining four judges of the five-member bench, Chief Justice A. N. Ray , Justice M. H. Beg , Justice Y. V. Chandrachud and Justice P. N. Bhagwati , agreed with the government's view that even the fundamental rights enshrined in the Constitution of India like the right to life and liberty stood abrogated during a period of national emergency. Khanna

5920-415: The 24th constitutional amendment in 1971, the fundamental rights given to the people were permanent and could not be repealed or diluted by Parliament. The 24th constitutional amendment introduced a new article – Article 13(4) – enabling Parliament to legislate on the subjects of Part III of the constitution using its constituent powers per Article 368 (1) . In 1973, a 13 member constitutional bench of

6080-560: The Belize Constitution (Sixth Amendment) Bill 2008 , which had sought to exclude certain deprivation of property rights from judicial review. The court recognised the fundamental rights granted by the constitution, respect for the rule of law and the right to the ownership of private property as basic features of the Belizean constitution, as well as the separation of powers, which Chief Justice Abdulai Conteh noted had been recognised by

6240-483: The Citizenship (Amendment) Bill, 2003 . As per Article 19 of Part III of the Constitution, the fundamental rights of people such as freedom of speech and expression, gathering peaceably without arms and forming associations or unions shall not effect the interests of the sovereignty unity and integrity of India. The words sovereignty and integrity are the qualities to be cultivated/emulated by Indian people as urged by

6400-405: The Constitution of India guarantee civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India . These rights are known as "fundamental" as they are the most essential for all-round development i.e., material, intellectual, moral and spiritual and protected by fundamental law of the land i.e. constitution. If the rights provided by Constitution especially

6560-832: The Fundamental Law of the Land and are enforceable in a court of law. However, this does not mean that they are absolute or immune from Constitutional amendment . Fundamental rights for Indians have also been aimed at overturning the inequalities of pre-independence social practices. Specifically, they have also been used to abolish untouchability and hence prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth. They also forbid trafficking of human beings and forced labour . They also protect cultural and educational rights of ethnic and religious minorities by allowing them to preserve their languages and also establish and administer their own education institutions. When

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6720-671: The High Court of Singapore . It was initially also rejected by the Federal Court of Malaysia , but was later accepted by it. Conversely, the doctrine was initially approved in Belize by the Supreme Court but was later reversed on appeal by the Belize Court of Appeal. That the Constitution has "basic features" was first theorised in 1964, by Justice J.R. Mudholkar in his dissent, in the case of Sajjan Singh v. State of Rajasthan . He wrote, It

6880-586: The Indian National Congress (the largest Indian political party of the time) adopted resolutions committing itself to the defence of fundamental civil rights, as well as socio-economic rights such as the minimum wage and the abolition of untouchability and serfdom . Committing themselves to socialism in 1936, the Congress leaders took examples from the Constitution of the Soviet Union , which inspired

7040-875: The Judicial Committee of the Privy Council in Hinds v The Queen (which was not a constitutional amendment case) as implicit in Westminster model constitutions in the Caribbean Commonwealth realm. The Supreme Court affirmed the doctrine in British Caribbean Bank Ltd v AG Belize and struck down parts of the Belize Telecommunications (Amendment) Act 2011 and Belize Constitution (Eighth) Amendment Act 2011 . The amendments had sought to preclude

7200-535: The Kesavananda case, the Court ruled that Parliament could not by amending the constitution convert limited power into an unlimited power (as it had purported to do by the 42nd amendment). In the judgement on section 55, Chief Justice Yeshwant Vishnu Chandrachud wrote, Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed,

7360-581: The Kesavananda decision, revived in 1997, and rejected again in 1998. The 2015 decision addressed the issue directly and accepted the doctrine. The High Court of Singapore denied the application of the basic features doctrine in Singapore in Teo Soh Lung v. Minister for Home Affairs . Justice Frederick Arthur Chua held that the doctrine was not applicable to the Singapore Constitution: "Considering

7520-526: The National Security Act (NSA) are a means of countering these fundamental rights, because they sanction excessive powers with the aim of fighting internal and cross-border terrorism and political violence, without safeguards for civil rights . The phrases "security of State", "public order" and "morality" are of wide implication. The meaning of phrases like "reasonable restrictions" and "the interest of public order" have not been explicitly stated in

7680-492: The Supreme Court or the High Courts for the enforcement of their fundamental rights. It is not necessary that the aggrieved party has to be the one to do so. Poverty-stricken people may not have the means to do so and therefore, in the public interest, anyone can commence litigation in the court on their behalf. This is known as " public interest litigation ". In some cases, High Court judges have acted suo moto on their own on

7840-568: The absolute majority of the total members of a house – whether the Lok Sabha or Rajya Sabha . While deciding the Golaknath case in February 1967, the Supreme Court ruled that Parliament had no power to curtail the fundamental rights. They were made permanent and sacrosanct, reversing the Supreme Court's earlier decision which had upheld Parliament's power to amend all parts of the Constitution, including Part III related to fundamental rights. Up until

8000-517: The directive principles of state policy . The right to freedom and personal liberty has a number of limiting clauses, and thus has been criticised for failing to check the sanctioning of powers often deemed "excessive". There is also the provision of preventive detention and suspension of fundamental rights in times of emergency . The provisions of acts like the Maintenance of Internal Security Act (MISA), Armed Forces (Special Powers) Act (AFSPA) and

8160-467: The freedom of speech and expression , freedom of assembly without arms, freedom of association , freedom of movement throughout the territory of our country, freedom to reside and settle in any part of the country of India and the freedom to practice any profession. All these freedoms are subject to reasonable restrictions that may be imposed on them by the State, listed under Article 19 itself. The grounds for imposing these restrictions vary according to

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8320-477: The 24th Amendment in 1971 to abrogate the Supreme Court ruling in the Golaknath case. It amended the Constitution to provide expressly that Parliament has the power to amend any part of the Constitution including the provisions relating to Fundamental Rights. This was done by amending articles 13 and 368 to exclude amendments made under article 368, from article 13's prohibition of any law abridging or taking away any of

8480-841: The 42nd Amendment as unconstitutional. The constitutionality of sections 4 and 55 of the 42nd Amendment were challenged in this case, when Charan Singh was caretaker Prime Minister . Section 4 of the 42nd Amendment, had amended Article 31C of the Constitution to accord precedence to the Directive Principles of State Policy articulated in Part IV of the Constitution over the Fundamental Rights of individuals articulated in Part III . Section 55 prevented any constitutional amendment from being "called in question in any Court on any ground". It also declared that there would be no limitation whatever on

8640-646: The Ahmedabad St. Xavier's College v. State of Gujarat (1974) and State of Kerala v. N. M. Thomas (1975) cases. After resigning from the Supreme Court, he served as the central minister of law and justice for a very short period of three days in the Charan Singh Ministry after the fall of the Indira Gandhi Government, and was later made a combined opposition-sponsored candidate for election as President in 1982, losing to Zail Singh . In 1999, he

8800-568: The Constituent Assembly debates in December 1948, Dr. Babasaheb Ambedkar had said that the rights invested with the Supreme Court through this Article could not be taken away unless the Constitution itself is amended and hence it was 'one of the greatest safeguards that can be provided for the safety and security of the individual'. The right to constitutional remedies is present for enforcement of fundamental rights. The right to privacy

8960-412: The Constitution abolishes untouchability and also prohibits begar . These provisions act as a check both on state action as well as the action of private individuals. However, these rights are not absolute or uncontrolled and are subject to reasonable restrictions as necessary for the protection of general welfare. They can also be selectively curtailed. The Supreme Court has ruled that all provisions of

9120-450: The Constitution but not used related to the territory of India. Article 1 of Part 1 of the Indian constitution, defines India (Bharat) as a Union of states. In a nutshell, India "is its people, not its land", as enshrined in the Constitution. Although speedy trial is a fundamental right, the cases involving violations of fundamental rights take an inordinate amount of time for resolution by

9280-533: The Constitution in 2005. Article 19 (1) under which every citizen has freedom of speech and expression and the right to know how the government works, what roles it plays, what its functions are, and so on. The Right against Exploitation contained in Articles 23–24, lays down certain provisions to prevent exploitation of the weaker sections of the society by individuals or the State. Article 23 prohibits human trafficking , making it an offence punishable by law, and also prohibits forced labour or any act of compelling

9440-431: The Constitution is a legislative process, and that an amendment under article 368 is "law" within the meaning of article 13 of the Constitution and therefore, if an amendment "takes away or abridges" a Fundamental Right conferred by Part III, it is void. Article 13(2) reads, "The State shall not make any law which takes away or abridges the right conferred by this Part and any law made in contravention of this clause shall, to

9600-405: The Constitution of India came into force it basically gave seven fundamental rights to its citizens. However, Right to Property was removed as a Fundamental Right through 44th Constitutional Amendment in 1978. In 2009, Right to Education Act was added. Every child between the age of 6 to 14 years is entitled to free education. In the case of Kesavananda Bharati v. State of Kerala (1973) [1] , it

9760-437: The Constitution termed as "basic" are listed below: The Supreme Court's initial position on constitutional amendments was that no part of the Constitution was unamendable and that the Parliament might, by passing a Constitution Amendment Act in compliance with the requirements of article 368, amend any provision of the Constitution, including the Fundamental Rights and article 368. In Shankari Prasad Singh Deo v. Union of India ,

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9920-525: The Constitution was amendable and that the Parliament might, by passing a Constitution Amendment Act in compliance with the requirements of article 368, amend any provision of the Constitution, including the Fundamental Rights and article 368. In 1967, the Supreme Court reversed its earlier decisions in Golaknath v. State of Punjab . It held that Fundamental Rights included in Part III of the Constitution are given

10080-472: The Constitution were made deleting, adding or diluting the fundamental rights before the judgement of Golaknath case (Constitutional amendments 1, 4, 7, and 16) and after the validity of 24th constitutional amendment was upheld by the Supreme Court (Constitutional amendments 25, 42, 44, 50, 77, 81, 85, 86, 93, and 97). Articles 31A and Article 31B are added by the first constitutional amendment in 1951. Article 31B says that any acts and regulations included in

10240-598: The Constitution, and this ambiguity leads to unnecessary litigation. The freedom to assemble peaceably and without arms is exercised, but in some cases, these meetings are broken up by the police through the use of non-fatal methods. Freedom of press has not been included in the right to freedom, which is necessary for formulating public opinion and to make freedom of expression more legitimate. Employment of child labour in hazardous job environments has been reduced, but their employment even in non-hazardous jobs, including their prevalent employment as domestic help violates

10400-421: The Constitution, including fundamental rights, can be amended, but that Parliament cannot alter the basic structure of the constitution. Since the fundamental rights can be altered only by a constitutional amendment , their inclusion is a check not only on the executive branch but also on the Parliament and state legislatures. A state of national emergency has an adverse effect on these rights. Under such

10560-518: The Courts in numerous cases, and have been incorporated in the basic structure. Only Judiciary decides the basic features of the Constitution. In Indira Nehru Gandhi v. Raj Naraian and also in the Minerva Mills case, it was observed that the claim of any particular feature of the Constitution to be a "basic" feature would be determined by the Court in each case that comes before it. Some of the features of

10720-490: The Drafting Committee. The fundamental rights were included in the constitution because they were considered essential for the development of the personality of every individual and to preserve human dignity. The writers of the constitution regarded democracy of no avail if civil liberties , like freedom of speech and religion, were not recognised and protected by the State. According to them, "democracy" is, in essence,

10880-494: The Fundamental Rights. Chief Justice Koka Subba Rao writing for the majority held that: Six years later in 1973, the largest ever Constitution Bench of 13 Judges, heard arguments in Kesavananda Bharati v. State of Kerala ( case citation : AIR 1973 SC 1461). The Supreme Court reviewed the decision in Golaknath v. State of Punjab , and considered the validity of the 24th, 25th, 26th and 29th Amendments. The Court held, by

11040-607: The Fundamental rights are violated the Supreme Court and the High Courts can issue writs under Articles 32 and 226 of the Constitution, respectively, directing the State Machinery for enforcement of the fundamental rights. These include individual rights common to most liberal democracies , such as equality before law, freedom of speech and expression , freedom of association and peaceful assembly, freedom to practice religion and

11200-545: The Indian Army and intelligence agencies. Article 34 of the Constitution grants authority to the Parliament to provide indemnification for government servants or individuals who may have taken actions in relation to the maintenance or restoration of order within regions where martial law had been enforced. This constitutional provision essentially empowers the Parliament to absolve these individuals from any legal liability or consequences arising from their actions undertaken in

11360-714: The Indian constitution took place on 10 December 1948 when the United Nations General Assembly adopted the Universal Declaration of Human Rights and called upon all member states to adopt these rights in their respective constitutions. The fundamental rights were included in the First Draft Constitution (February 1948), the Second Draft Constitution (17 October 1948) and final Third Draft Constitution (26 November 1949), prepared by

11520-628: The Indian constitution was drafted by a constituent assembly representative of the Indian people in territorial, racial and community terms, and not "ordinary mortals", while the same could not be said for the Malaysian constitution , which was enacted by an ordinary legislature. The basic structure doctrine was first cited with approval by the Federal Court in obiter dicta in Sivarasa Rasiah v. Badan Peguam Malaysia , before ultimately being applied by

11680-466: The Ninth Schedule of the constitution by the Parliament can override the fundamental rights and such laws cannot be repealed or made void by the judiciary on the grounds of violating fundamental rights. Thus fundamental rights given in Part III are not equally applicable in each state /region and can be made different by making additions/deletions to Ninth Schedule by constitutional amendments. In 2007,

11840-477: The Parliament which conflict with or seek to alter this "basic structure" of the Constitution. The basic features of the Constitution have not been explicitly defined by the Judiciary, and the claim of any particular feature of the Constitution to be a "basic" feature is determined by the Court in each case that comes before it. The Supreme Court's initial position on constitutional amendments had been that any part of

12000-592: The Shiv Kant Shukla case, Khanna was superseded to the office of the Chief Justice of India by Prime Minister of India Indira Gandhi in favour of Justice M. H. Beg. This went contrary to the convention of appointing the senior-most judge as the next Chief Justice upon the retirement of the incumbent (at the time Khanna was the most senior judge in the Supreme Court). As a result of this, he promptly resigned from

12160-421: The State can detain such person without trial for only three months, and any detention for a longer period must be authorised by an advisory board. The person being detained also has the right to be informed about the grounds of detention, and be permitted to make a representation against it, at the earliest opportunity. Right to information has been given the status of a fundamental right under Article 19(1) of

12320-428: The State from discriminating against anyone in matters of employment on the grounds only of religion, race, caste, sex, descent, place of birth, place of residence or income. It creates exceptions for the implementation of measures of affirmative action for the benefit of any backward class of citizens to ensure adequate representation in public service, as well as reservation of an office of any religious institution for

12480-489: The State is not precluded from making special provisions for women and children or any socially and educationally backward classes of citizens, including the Scheduled Castes and Scheduled Tribes . This exception has been provided since the classes of people mentioned are considered deprived and in need of special protection . Article 16 guarantees equality of opportunity in matters of public employment and prevents

12640-582: The Sulakshani Devi Mahajan lectures), "Judiciary in India and Judicial Process" (1985, based on the Tagore Law Lectures), Liberty, Democracy and Ethics, Society and the Law, which mainly deal with Indian law and the constitution. He also wrote an autobiography, Neither Roses nor Thorns , (Lucknow, 1985). In the conclusion of his Making of India's constitution , he writes: If the Indian constitution

12800-544: The Supreme Court Bar Association asked for contributions from its members to collect Rs 10,000 for the portrait, within half an hour Rs 30,000 was on the table and the members of the bar had to be forcibly stopped. Upon the suspension of the emergency, the Janata Party which was preparing for the impending elections urged him to contest them but he refused and preferred instead to carry on chamber practice. He

12960-437: The Supreme Court also upheld with majority the validity of the 24th constitutional amendment. However, it ruled that the basic structure of the constitution , which is built on the basic foundation representing the dignity and freedom of the individual, could not be altered, and that it was "of supreme importance" and could not be destroyed by means of amendment(s) to the Constitution. Many constitutional amendments to Part III of

13120-571: The Supreme Court had held that the power of Parliament to amend the Constitution was unfettered. However, in this landmark ruling, the Court adjudicated that while Parliament has "wide" powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution. Although Kesavananda was decided by a narrow margin of 7–6, the basic structure doctrine, as propounded in Justice Khanna's judgement, has since gained widespread legal and scholarly acceptance due to

13280-633: The Supreme Court in subsequent cases, such as Waman Rao v. Union of India , Bhim Singhji v. Union of India , S.P. Gupta v. President of India (known as Transfer of Judges case), S.P. Sampath Kumar v. Union of India , P. Sambamurthy v. State of Andhra Pradesh , Kihota Hollohon v. Zachilhu and others , L. Chandra Kumar v. Union of India and others , P. V. Narsimha Rao v. State (CBI/SPE) , I.R. Coelho v. State of Tamil Nadu and others , and Raja Ram Pal v. The Hon'ble Speaker, Lok Sabha and others (known as Cash for Query case). The Supreme Court's position on constitutional amendments laid out in its judgements

13440-533: The Supreme Court of Uganda in Mabirizi Kiwanuka & ors. v. Attorney General unanimously upheld the Constitutional Court (majority) finding. Hans Raj Khanna Hans Raj Khanna (3 July 1912 – 25 February 2008) was an Indian judge, jurist and advocate who propounded the basic structure doctrine in 1973 and attempted to uphold civil liberties during the time of Emergency in India in

13600-547: The Supreme Court ruled that there could not be any blanket immunity from judicial review for the laws inserted in the Ninth Schedule. Apex court also stated it shall examine laws included in the Ninth Schedule after 1973 for any incompatibility with the basic structure doctrine. Section 4 of the 42nd Amendment , had changed Article 31C of the Constitution to accord precedence to the Directive Principles (earlier applicable only to clauses b & c of Article 39) over

13760-499: The Supreme Court unanimously held, "The terms of article 368 are perfectly general and empower Parliament to amend the Constitution without any exception whatever. In the context of article 13, "law" must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power, with the result that article 13 (2) does not affect amendments made under article 368. In Sajjan Singh v. State of Rajasthan , by

13920-412: The Supreme Court used the basic structure doctrine to strike down the 39th Amendment and parts of the 42nd Amendment respectively, and paved the way for restoration of Indian democracy. The Supreme Court's position on constitutional amendments laid out in its judgements is that Parliament can amend the Constitution but cannot destroy its "basic structure". The basic structure doctrine was rejected by

14080-430: The Supreme Court which is against the legal maxim ' justice delayed is justice denied '. Changes to the fundamental rights require a constitutional amendment , which has to be passed by a special majority of both houses of Parliament. This means that an amendment requires the approval of two-thirds of the members present and voting. However, the number of members voting in support of the amendment shall not be less than

14240-477: The affected individual. Exercise of jurisdiction by the Supreme Court can also be suo motu or on the basis of a public interest litigation . This right cannot be suspended, except under the provisions of Article 352, when a state of emergency is declared. Article 33 of the Indian constitution grants the Parliament the authority to enact legislation aimed at limiting the extension of fundamental rights to particular groups, which may encompass individuals within

14400-474: The age of 14 years in factories, mines and other hazardous jobs. Parliament has enacted the Child Labour (Prohibition and Regulation) Act, 1986, providing regulations for the abolition of, and penalties for employing, child labour, as well as provisions for rehabilitation of former child labourers. The Right to Freedom of Religion, covered in Articles 25–28, provides religious freedom to all citizens and ensures

14560-480: The age of 22. After completing his graduation in law, he practiced law primarily in Amritsar, dealing mainly with civil cases, and soon gathered a large practice which he maintained till his elevation to the bench in 1952. In January 1952 he was nominated by Sir Eric Weston , Chief Justice of Punjab , as District and Sessions Judge. This was "an uncommon appointment.... it had long been the practice to appoint only from

14720-508: The amendment into law in January 2018, aged '74 years' (Unsubstantiated evidence is available that the alleged dictator is in his late 80's). Several opposition leaders and the Uganda Law Society, challenged the constitutionality of the amendment before the Constitutional Court, which (majority) upheld the validity of the amendment. Taking note of the judgments in Kesavananda Bharati v. State of Kerala and Minerva Mills v. Union of India ,

14880-409: The application of fundamental rights to the armed forces, the restriction of fundamental rights during martial law, and the punishment for violating the fundamental rights. It also states that any law that was in force before the Constitution came into effect on these matters will continue to be valid until amended or repealed by the Parliament. Article 35 also clarifies that the term "law in force" has

15040-412: The article 329A, which made the existing election law inapplicable to the Prime Minister's and Speaker's election, and declared the pending proceedings in respect of such elections null and void. Constitutional lawyer A. G. Noorani notes that the doctrine has "now spread far and wide beyond its frontiers.", but that the eventual attribution to Dietrich Conrad is absent, who propounded the arguments in

15200-402: The authority of law, as well as equal treatment of persons in similar circumstances. The latter permits the State to classify persons for legitimate purposes, provided there is a reasonable basis for the same, meaning that the classification is required to be non-arbitrary, based on a method of intelligible differentiation among those sought to be classified, as well as have a rational relation to

15360-448: The basic structure/features of the constitution is resting on the basic foundation of the constitution. The basic foundation of the constitution is the dignity and the freedom of its citizens which is of supreme importance and can not be destroyed by any legislation of the parliament. The basic features of the Constitution have not been explicitly defined by the Judiciary. At least, 20 features have been described as "basic" or "essential" by

15520-533: The basis of Article 368. In 1967, the Supreme Court reversed its earlier decisions in Golaknath v. State of Punjab . A bench of eleven judges (the largest ever at the 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. The Supreme Court delivered its ruling, by a majority of 6-5 on 27 February 1967. The Court held that an amendment of

15680-459: The basis of newspaper reports. These fundamental rights help not only in protection but also the prevention of gross violations of human rights. They emphasise on the fundamental unity of India by guaranteeing to all citizens the access and use of the same facilities, irrespective of background. Some fundamental rights apply for persons of any nationality whereas others are available only to the citizens of India. The right to life and personal liberty

15840-553: The bench as one of its first judges. He conducted the inquiry into corruption charges against Biju Patnaik and other Ministers in Orissa . While some of the charges were found true, Biju himself was absolved. He served as Chief Justice of Delhi High Court from 1969 until September 1971 when he was appointed a Judge of the Supreme Court of India. While the Habeas Corpus case is Justice Khanna's most celebrated ruling, almost as well known

16000-442: The bench was dissolved, and the judges rose. The 39th Amendment attempted, among other provisions, to legitimize the election of Indira Gandhi in 1971. Article 329A put the elections of the Prime Minister and Lok Sabha Speaker outside the purview of the judiciary and provided for determination of disputes concerning their elections by an authority to be set up by a Parliamentary law. The Supreme Court struck down clauses (4) and (5) of

16160-525: The case. Presided over by Chief Justice Ajit Nath Ray , the court had to determine the degree to which amendments were restricted by the basic structure theory. Ray, who was among the dissenters in the Kesavananda Bharati case, had been promoted to Chief Justice of India on 26 April 1973, superseding three senior Judges, Shelat, Grover and Hegde (all in the majority in the same case), which was unprecedented in Indian legal history. On November 10 and 11,

16320-637: The chairman of the Press Trust of India . In 1998, the Justice HR Khanna committee was constituted by the railway ministry with the mandate of "reviewing the implementation of previous accident inquiry committees, of examining the adequacy of existing practices for the safe running of trains and to suggest safety measures." Under his chairmanship, the Railway Safety Review Committee made 278 recommendations, out of which 239 were accepted by

16480-443: The chapter, he says of Justice Khanna, "his statue must be installed in every street and corner of the country for the yeoman service rendered by him for the cause of justice". In December 1978, his full-size portrait was unveiled in his former court, courtroom number 2 of the Supreme Court. To this day, nobody else has had the singular honor of having their portrait put up in the Supreme Court during their lifetime. In fact, when

16640-591: The civil service". He served in the district courts at Ferozepur , and then Ambala . He became known for his decision to convict India's leading industrialist Ramkrishna Dalmia of corruption. Dalmia was to serve several years in Tihar Jail . He moved as District and Sessions Judge, Delhi until he was appointed Judge of the Punjab High Court in 1962. On the formation of the Delhi High Court , he joined

16800-420: The constituent power of Parliament to amend by way of definition, variation or repeal the provisions of the Constitution. On 31 July 1980, when Indira Gandhi was back in power , the Supreme Court declared sections 4 & 55 of the 42nd amendment as unconstitutional. It further endorsed and evolved the basic structure doctrine of the Constitution. As had been previously held through the basic structure doctrine in

16960-419: The constitution so that it could be easily enforced. He drafted this Article 32. B. R. Ambedkar had said, "If I was asked to name any particular article in this Constitution as the most important – an article without which this Constitution would be a nullity – I could not refer to any other article except this one (Article 32). It is the very soul of the Constitution and the very heart of it." During

17120-565: The constitution, the people would have recourse to extra constitutional method like revolution to change the constitution". The judgment clarified and partially overruled the court's earlier verdict in Golak Nath by holding that Parliament could amend the Constitution, particularly the property right . Justice Khanna is renowned for exhibiting immense courage during the Indian Emergency (1975–1977) declared by Indira Gandhi. The emergency

17280-486: The context of martial law implementation. In essence, it allows for the legal protection and exoneration of those involved in maintaining or restoring order during periods when martial law was in effect. Article 35 of the Indian Constitution is a provision that gives the Parliament the exclusive power to make laws on certain matters related to the fundamental rights, such as the reservation of public employment,

17440-590: The country demanding guaranteed civil freedoms, and limitations on government power. Indians, who were seeking independence and their own government, were particularly influenced by the independence of Ireland and the development of the Irish constitution . Also, the directive principles of state policy in Irish constitution were looked upon by the people of India as an inspiration for independent India's government to comprehensively tackle complex social and economic challenges across

17600-527: The court from deciding on whether deprivation of property by the government was for a public purpose, and to remove any limits on the National Assembly 's power to alter the constitution. This was found to impinge on the separation of powers, which had earlier been identified as part of the basic structure of the Belizean constitution. On appeal, the Court of Appeal reversed the decision of the Supreme Court, ruling that "the so-called basic structure doctrine

17760-520: The court which was effected in March. Khanna had previously authored the basic structure doctrine of the Constitution of India in Kesavananda Bharati v. State of Kerala , which curtailed Parliament's seemingly unfettered amending power under article 368, restricting its scope of amendment in areas which were part of the Constitution's "basic structure". In addition, he delivered noted judgments in

17920-582: The courts, subject to certain restrictions. The Rights have their origins in many sources, including England's Bill of Rights , the United States Bill of Rights and France's Declaration of the Rights of Man . The six fundamental rights are: Rights literally mean those freedoms which are essential for personal good as well as the good of the community. The rights guaranteed under the Constitution of India are fundamental as they have been incorporated into

18080-572: The destruction of a democratic society, and the Indian Supreme Court's decision appears close to utter surrender. This judgment has been consistently lauded by lawyers, scholars, and intellectuals alike and has been compared to the dissent of Lord Atkin in Liversidge v Anderson . Nani Palkhivala's book, which came out soon after the emergency was revoked, carried a full-fledged chapter on him titled, "Salute to Justice Khanna". At one point in

18240-532: The detainees by accepting their right to habeas corpus as stated in Article 21 of the Indian constitution . This issue was at the heart of the case of the Additional District Magistrate of Jabalpur v. Shiv Kant Shukla , popularly known as the Habeas Corpus case , which came up for hearing in front of the Supreme Court in December 1975. Given the important nature of the case, a bench comprising

18400-655: The differences in the making of the Indian and our Constitution, it cannot be said that our Parliament's power to amend our Constitution is limited in the same way as the Indian Parliament's power to amend the Indian Constitution." In December 2017, the Ugandan parliament passed a Constitutional Amendment which removed the age limit of 75 years for the President and Chairpersons of the Local Council. The President Yoweri Museveni, who has been President of Uganda since 1986, signed

18560-503: The discussion which took place on such questions among constitutional lawyers in Germany in the Weimar period - discussion, seeming academic at first, but suddenly illustrated by history in a drastic and terrible manner." http://www.frontline.in/static/html/fl1809/18090950.htm The note is that in Kesavananda Bharati the dissenting judge, Justice Khanna, approved as "substantially correct"

18720-458: The doctrine of due process , was heavily debated by the Constituent Assembly. It was argued, especially by Benegal Narsing Rau , that the incorporation of such a clause would hamper social legislation and cause procedural difficulties in maintaining order, and therefore it ought to be excluded from the Constitution altogether. The Constituent Assembly in 1948 eventually omitted the phrase "due process" in favor of "procedure established by law". As

18880-525: The document, and thus could be represented by: The Court reaffirmed and applied the basic structure doctrine in Indira Nehru Gandhi v. Raj Narain , popularly known as Election case. The constitutionality of Article 329A, which had been inserted by the 39th Amendment in 1975 was challenged in this case. Shortly after the imposition of the Emergency , a bench of thirteen judges was hastily assembled to hear

19040-412: The enforcement of the Fundamental Rights, while the High Courts have been empowered under Article 226 – which is not a Fundamental Right in itself – to issue these prerogative writs even in cases not involving the violation of Fundamental Rights. The Supreme Court has the jurisdiction to enforce the Fundamental Rights even against private bodies, and in case of any violation, award compensation as well to

19200-446: The extent of contravention, be void." The Court also ruled that Fundamental Rights included in Part III of the Constitution are given a "transcendental position" under the Constitution and are kept beyond the reach of Parliament. The Court also held that the scheme of the Constitution and the nature of the freedoms it granted incapacitated Parliament from modifying, restricting or impairing Fundamental Freedoms in Part III. Parliament passed

19360-664: The five seniormost judges was convened to hear the case. During the arguments, Justice Khanna at one point asked the Attorney General Niren De : "Life is also mentioned in Article 21, and would Government argument extend to it also?". He answered, "Even if life was taken away legally, courts are helpless". The bench opined in April 1976, with the majority deciding against habeas corpus, permitting unrestricted powers of detention during an emergency. Justices A. N. Ray , P. N. Bhagwati , Y. V. Chandrachud , and M.H. Beg , stated in

19520-470: The following observations by Conrad: Any amending body organised within the statutory scheme, howsoever verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its constitutional authority. Limitation of Amendment Procedures and the Constituent Power; Indian Year Book of International Affairs, 1966–1967, Madras, pp. 375-430 The basic structure doctrine

19680-686: The following period, attempts were made from quarters asking the British government to grant rights for Indians. These demands were made in resolution by the INC between 1917 and 1919 in several reports and bills. In 1919, the Rowlatt Act gave extensive powers to the British government and allowed indefinite arrest and detention of individuals, warrantless searches and seizures, restrictions on public gatherings, and intensive censorship of media and publications. The public opposition to this act eventually led to mass campaigns of non-violent civil disobedience throughout

19840-412: The following: Nine judges (including two dissenters) signed a statement of summary for the judgment that reads: The ruling thus established the principle that the basic structure cannot be amended on the grounds that a power to amend is not a power to destroy. The majority had differing opinions on what the "basic structure" of the Constitution comprised Chief Justice Sarv Mittra Sikri , writing for

20000-462: The freedom sought to be restricted and include national security, public order, decency and morality, contempt of court, incitement to offences and defamation. The State is also empowered, in the interests of the general public to nationalize any trade, industry or service to the exclusion of the citizens. The freedoms guaranteed by Article 19 are further sought to be protected by Articles 20–22. The scope of these articles, particularly with respect to

20160-464: The fundamental duties of citizens as a means of collective patriotic responsibility for national interests and challenges. When India obtained independence on 15 August 1947, the task of developing a constitution for the nation was undertaken by the Constituent Assembly of India , composed of elected representatives under the presidency of Rajendra Prasad . While members of Congress constituted

20320-593: The impudence of power." He published his autobiography, Neither Roses Nor Thorns in 2003. Khanna died on 25 February 2008 at the age of 95. The government of India honored him with the Padma Vibhushan, India's second-highest civilian award, in 1999. He has been awarded honorary Doctor of Law degrees by numerous universities, including Faculty of Law, University of Delhi , National Law School of India University , Government Law College, Mumbai , University of Calcutta and his alma mater Panjab University . On

20480-462: The limited power into an unlimited one. The ruling was widely welcomed in India, and Gandhi did not challenge the verdict. In the judgement on Section 4, Chandrachud wrote: Three Articles of our Constitution, and only three, stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power. They are Articles 14, 19 and 21. Article 31C has removed two sides of that golden triangle which affords to

20640-448: The magistrate. The Constitution also authorizes the State to make laws providing for preventive detention , subject to certain other safeguards present in Article 22. The provisions pertaining to preventive detention were discussed with scepticism and misgivings by the Constituent Assembly, and were reluctantly approved after a few amendments in 1949. Article 22 provides that when a person is detained under any law of preventive detention,

20800-524: The majority decision: Given the Presidential Order [declaring emergency] no person has any locus to move any writ petition under Art. 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention. Justice Beg even went on to observe: "We understand that the care and concern bestowed by the state authorities upon the welfare of detenues who are well housed, well-fed, and well treated,

20960-403: The majority, indicated that the basic structure consists of the following: Justices Shelat and Grover in their opinion added three features to the Chief Justice's list: Justices Hegde and Mukherjea, in their opinion, provided a separate and shorter list: Justice Jaganmohan Reddy preferred to look at the preamble, stating that the basic features of the constitution were laid out by that part of

21120-412: The object sought to be achieved by the classification. Article 15 prohibits discrimination on the grounds of religion, race, caste, sex, place of birth, and also gender or any of them. This right can be enforced against the State as well as private individuals, with regard to free access to places of public entertainment or places of public resort maintained partly or wholly out of State funds. However,

21280-457: The occasion of his 90th birthday, the Supreme Court Bar Association presented him with a plaque conferring upon him the title of "Living Legend of Law". Two sets of lectures are held in Justice Khanna's honor. A series of lectures were organized by Justice Khanna's family for some years after his death but were subsequently discontinued. They were presided over by Soli Sorabjee , who was a very close friend of Justice Khanna's. The first lecture

21440-568: The people of this country an assurance that the promise held forth by the preamble will be performed by ushering an egalitarian era through the discipline of fundamental rights, that is, without emasculation of the rights to liberty and equality which alone can help preserve the dignity of the individual. This latter view of Article 31C was questioned, but not overturned, in Sanjeev Coke Manufacturing Co v Bharat Cooking Coal Ltd. The concept of basic structure has since been developed by

21600-526: The railways. In 2001 he chaired the advisory panel to the Government of India on strengthening the institutions of parliamentary democracy. A prolific writer, he also lectured regularly and many of his lectures were later published in book form. Among the books he has authored, are "Judicial Review or Confrontation" (1977), Constitution and civil liberties (1978, based on the B. R. Ambedkar memorial lectures), Making of India's Constitution (1981, based on

21760-654: The right to constitutional remedies for the protection of civil rights by means of writs such as habeas corpus . Violations of these rights result in punishments as prescribed in the Bharatiya Nyaya Sanhita , subject to discretion of the judiciary . The Fundamental Rights are defined as basic human freedoms where every Indian citizen has the right to enjoy for a proper and harmonious development of personality and life. These rights apply universally to all citizens of India, irrespective of their race , place of birth, religion, caste or gender . They are enforceable by

21920-409: The rights against ex post facto laws , double jeopardy and freedom from self-incrimination . Article 22 provides specific rights to arrested and detained persons, in particular the rights to be informed of the grounds of arrest, consult a lawyer of one's own choice, be produced before a magistrate within 24 hours of the arrest, and the freedom not to be detained beyond that period without an order of

22080-533: The rights of cultural, linguistic, and religious minorities, by enabling them to conserve their heritage and protecting them against discrimination. Article 32 provides a guaranteed remedy, in the form of a Fundamental Right itself, for enforcement of all the other Fundamental Rights, and the Supreme Court is designated as the protector of these rights by the Constitution. The Supreme Court has been empowered to issue writs , namely habeas corpus , mandamus , prohibition , certiorari and quo warranto , for

22240-576: The same court in Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat & Ano'r Case and Indira Gandhi a/p Mutho v. Pengarah Jabatan Agama Islam Perak & 2 O'rs & 2 Other Cases . In those cases, the Federal Court held that the vesting of the judicial power of the Federation in the civil courts formed part of the basic structure of the Constitution, and could not be removed even by constitutional amendment. The basic structure doctrine

22400-537: The same meaning as in Article 372, which deals with the continuance of existing laws and their adaptation. Article 35 was added to the Constitution by the Constituent Assembly to ensure that there is uniformity and consistency in the laws relating to the fundamental rights across the country. Article 35 should not be confused with Article 35A, which was a separate article that empowered the Jammu and Kashmir (union territory) state's legislature to define "permanent residents" of

22560-439: The scope of Article 21 to include within it a number of rights including those to livelihood, good health, clean environment, water, speedy trial and humanitarian treatment while imprisoned. The right to education at elementary level has been made one of the Fundamental Rights under Article 21A by the 86th Constitutional amendment of 2002. Article 20 provides protection from conviction for offences in certain respects, including

22720-455: The spirit and ideals of the Constitution. More than 16.5 million children are employed and working in India. India was ranked 88 out of 159 in 2005, according to the degree to which corruption is perceived to exist among public officials and politicians worldwide. In 2014, India had improved marginally to a rank of 85. The right to equality in matters regarding public employment is not conferred upon overseas citizens of India , according to

22880-416: The state and provide special rights and privileges to them. Article 35A was added to the Constitution through a presidential order in 1954, without any amendment by the Parliament. It was abrogated by another presidential order in 2019, along with Article 370 , which granted special status to Jammu and Kashmir. Dr B. R. Ambedkar wanted a specific guarantee of fundamental rights expressly incorporated in

23040-461: The team of civil libertarian barristers, led by Nanabhoy Palkhivala , argued against the Union government's application for reconsideration of the Kesavananda decision. Some of the judges accepted his argument on the very first day, the others on the next; by the end of the second day, the Chief Justice was reduced to a minority of one. On the morning of 12 November, Chief Justice Ray tersely pronounced that

23200-419: The true nature of a legal concept. So, if for the purpose of legal discussion, I may propose some fictive amendment laws to you, could it still be considered a valid exercise of the amendment power conferred by Article 368 if a two-thirds majority changed Article 1 by dividing India into two States of Tamilnad and Hindustan proper? "Could a constitutional amendment abolish Article 21, to the effect that forthwith

23360-433: The underlying apprehension of the majority bench that elected representatives could not be trusted to act responsibly was perceived as unprecedented. However, the passage of the 39th Amendment by the Indian National Congress ' majority in central and state legislatures, proved that in fact such apprehension was well-grounded. In Indira Nehru Gandhi v. Raj Narain and Minerva Mills v. Union of India , Constitution Benches of

23520-461: The validity of such awards. The Right to Freedom is covered in Article 19 to 22, with the view of guaranteeing individual rights that were considered vital by the framers of the Constitution, and these Articles also include certain restrictions that may be imposed by the State on individual liberty under specified conditions. Article 19 guarantees six freedoms in the nature of civil rights, which are available only to citizens of India. These include

23680-472: The “reasonableness” clause, used by the court to overturn government decisions deemed unconstitutional, on the ground that “this does severe and unprecedented damage to the basic characteristics of the State of Israel as a democratic state,”. In Malaysia, the basic features doctrine was initially found to be inapplicable by the Federal Court in Phang Chin Hock v. Public Prosecutor . The Court remarked that

23840-567: Was awarded the Padma Vibhushan in recognition of his career in judicial service, the second-highest civilian honor given by the Government of India . Khanna was born in Amritsar , Punjab in 1912, the son of lawyer and freedom fighter Sarb Dyal Khanna. The family hailed from a trading tradition, but Hans's father had become a leading lawyer and later, the mayor of Amritsar. Hans's mother died at

24000-518: Was declared when Justice Jagmohanlal Sinha of the Allahabad High Court invalidated the election of Indira Gandhi to the Lok Sabha in June 1975, upholding charges of electoral fraud, in the case filed by Raj Narain . Owing to the repressive Maintenance of Internal Security Act (MISA) which provided for the unlawful detainment of individuals without trial, several high courts had given relief to

24160-582: Was delivered by Justice M.N. Venkatachaliah , on the topic "The Constitutional World of Justice Khanna". In 2010, the speaker was K.K. Venugopal . The third installment in 2011 was delivered by Justice Santosh Hegde . In 2012, the last in this succession of lectures, the H.R. Khanna Centennial Memorial Lecture was held – the speakers of which were Justice J.S. Verma and B G Verghese . Fundamental Rights in India The Fundamental Rights in India enshrined in part III (Article 12–35) of

24320-517: Was further clarified in Minerva Mills v. Union of India . The 42nd Amendment had been enacted by the government of Indira Gandhi in response to the Kesavananda Bharati judgment in an effort to reduce the power of the judicial review of constitutional amendments by the Supreme Court. In the Minerva Mills case, Nanabhoy Palkhivala successfully moved the Supreme Court to declare sections 4 and 55 of

24480-633: Was held by the Apex Court that Fundamental Rights can be amended by the Parliament, however, such amendment should not contravene the basic structure of the Constitution. The first demand for fundamental rights came in the form of the "Constitution of India Bill, in 1895. Also popularly known as the Swaraj Bill 1895, it was written during the emergence of Indian nationalism and increasingly vocal demands by Indians for self-government. It talked about freedom of speech, right to privacy, right to franchise, etc. In

24640-463: Was highly active with it, taking international arbitrations into his early nineties. After Indira Gandhi lost the elections of 1977, the ruling Janata Party wanted him to head the Commission of Inquiry against the illegal imposition of the emergency and the various atrocities committed during it but Khanna refused, as he felt he would appear biased against Indira Gandhi and her son Sanjay Gandhi . He

24800-528: Was nominated for President of India, as a combined opposition candidate supported by as many as nine opposition parties. However, the Congress Party had a huge majority numerically and he lost to Giani Zail Singh . From 1985 until 2000, he was the national president of the Bharat Vikas Parishad, after which he became patron to the organisation. He was a long time board member of, and for many years

24960-467: Was recognised in Constitution Petition No.12 of 2010, etc. by the Supreme Court of Pakistan in 2015. The case was heard by the full 17-member bench, of which a plurality of 8 accepted the basic structure doctrine as a basis for limiting the ability of the Parliament of Pakistan to amend the Constitution , 4 rejected the premise of such limitations, describing the basic structure doctrine as

25120-599: Was the last supersession in the history of the Supreme Court, and eventually, the judiciary even wrested the power of judicial appointments from the executive in a landmark ruling in the Advocates-on-Record case in 1993 (also known as the Second Judges Case ). The New York Times , wrote at the time: If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect

25280-459: Was the lone dissenting vote; his opinion, claimed that Article 21 of the Constitution could not possibly be the sole repository of the fundamental rights to life and liberty as these predate the Constitution itself. His view that these inalienable rights cannot be deprived by executive decree, even during a period of national emergency, is praised for his 'fearlessness' and 'eloquence'. In January 1977, nine months after delivering his dissent in

25440-603: Was then offered the Chairmanship of the Finance Commission , a position he also refused. He did however accept the office of Chairman of the Law Commission , a post he held without any pay. He resigned from its chairmanship in 1979 when he was inducted into the cabinet as Union Law Minister by Charan Singh . However, he resigned within 3 days. As it so happened, the entire government fell within six months. In 1982 Khanna

25600-412: Was unrestricted. Justice Khanna's judgment held that, although the Constitution is amenable to amendments, changes that ultra vires , tinker with its basic structure cannot be made by Parliament, that is – certain parts of the constitution were "basic" and could not be amended. However, he also said the amendment of the right was fundamental – as he explained, "If no provisions were made for amendment of

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