Kesavananda Bharati V. State of Kerala () Shankari Prasad vs Union of India (AIR SC ) . Champakam Dorairajan vs State of Madras. Issue. JUDGMENT W.P.(C) OF Appellants: His Holiness Kesavananda Bharati Sripadagalvaru and Ors. Vs. Respondent: State of Kerala and Anr. Decided. The fundamental question dealt in Kesavananda Bharati v State of Kerala is whether the power to amend the constitution is an unlimited, or there is identifiable.

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The Congress shall have power This restriction exists independently of the question whether the legislature is sovereign, as is the legislature of Ceylon, or whether the Constitution is “uncontrolled,” as the Board held the Constitution of Queensland to be. But in the one case, this involves an addition to what is expressed: Constitution will come in direct serious conflict with the rights under Part III.

He says that the Preamble bharatii a part of the Constitution statute and not a part of the Constitution but precedes it. kwrala

As far as the Vice- President is concerned, the States have been given no say whether there shall be a Vice- President or not; about the method of his election, etc. Provided that no Bill for the amendment or repeal of any of the Provisions of this Order shall be presented for the Royal Assent unless it has endorsed on it a certificate under hand of the Speaker that the number of votes cast in favour thereof in the House of Representatives amounted to not less than twothirds of the whole number of members of the House including those not present.

Kesavananda Bharati Vs. State of Kerala

We have, therefore, no option but to make the Constitution operative in these States on the basis of its acceptance by the Ruler of the Rajpramukh, as the case may be, who will no doubt consult his Council of Ministers. Archived from the original on It also added that Article merely lays down the procedure for the purpose of amendment. In expounding the Constitution of the United States, every word must have its due force, and appropriate meaning: At these meetings the sub- committee considered the interim proposals of the fundamental rights Sub-Committee in so far as these had a bearing on minority rights.

Subject to these limitations, Parliament had the right to amend any and every provision of the Constitution. It is not even included in the proviso to Article and it is difficult to think that as it has not the protection of the proviso it must be within the main part of Article Article makes special provisions for Anglo-Indian community in certain services, and Article makes special provisions in respect of educational grants for the benefit of Anglo- Indian community.


Seervai’s written submissions, clearly shows that the Judicial Committee in this passage was not dealing with the amendment of Section 29 2 of the Ceylon Constitution and had understood McCawley’s [] A.

This rule of exclusion has not always been adhered to in America, and sometimes distinction is made between using such material to ascertain the purpose of a statute and using it for ascertaining its meaning.

Kesavananda Bharati – Wikipedia

Article describes the effect of the Proclamation of Emergency. Fifthly, the Amendment Actin so far as it purports to take away or abridge the rights conferred by Part III of the Constitution, falls within the prohibition of Article 13 2. There is something to be said for his contention but, in my view, it is not necessary to base my decision on this distinction as it is not necessary stafe decide in the present case whether Article enables Parliament to amend the Preamble.

In the Explanatory statement dated May 22,it was again reiterated as follows: A preamble may be used for other reasons to limit the scope kwrala certain expressions or to explain facts or introduce definitions.

The case was heard by the largest ever Constitution Bench of 13 Judges. Supreme Court approved the judgment in Shankari Prasad case and keralz that on Article 13 2 the case was rightly decided. There is no doubt that the declaration made by the people kfsavananda India in exercise of their sovereign will in the preamble to the Constitution is, in the words of Story, “a key to open the mind of the makers” which may show the general purposes for which they made the several provisions in the Constitution; but nevertheless the preamble is not a part of the Constitution, and, as Willoughby has observed about the” preamble to the American Constitution, “it has never been regarded as the source of any substantive power conferred on the Government of the United States or any of its departments.


Palekar, H R KhannaA. I am not giving his reasons for these conclusions here because they will be examined when dealing with the arguments addressed to us on various points.

If they cannot, it will be for consideration whether they can be modified. A distinction has necessarily to be byarati between rights which are justiciable and rights which are merely intended as a guide and directive objectives to state policy.

Kesavananda Bharati vs. State of Kerala

The government of Indira Gandhi did not take kindly to this implied restriction on its powers by the court. The Respondents submitted before the courts that even democracy can be turned into one party rule, if need be, by the Parliament. I may here trace the history of the shaping of the Preamble because this would show that the Preamble was in conformity with the Constitution as it was finally accepted.


These speeches cannot be used as aids for interpreting the Constitution-see State of Travancore Cochin and Ors. This Court has in numerous decisions implied similar powers. To illustrate my point, as long as the words ‘sovereign democratic republic’ are there, could the Constitution be amended so as to depart from the democratic form of Government or its republic character?

But it would indeed be strange that rights which are considered to be fundamental and which include one which is guaranteed by the Constitution vide Article 32 should be more easily capable of being abridged or restricted than any of the matters referred to in the proviso to Article some of which are perhaps less vital than fundamental rights.

Then he referred to the genesis of the various articles mentioned in the preliminary note. Primary among these was the imposition of the state of emergency by Indira Gandhi inand the subsequent attempt to suppress her prosecution through the 39th Amendment.

Article confers legislative powers on the Governor during the recess of State Legislature by promulgating ordinances. Sardar Patel, while moving the report for consideration on August 27,said: Three days later, moving the report of the Union Constitution Committee for the consideration of the Assembly, he suggested that it was not necessary at that stage to consider the draft of the Preamble since the Assembly stood by the basic principles laid down in the Objectives Resolution and these could be incorporated in the Preamble in the light of the changed situation Shiva Rao’s-Framing of India’s Constitution-A study- pp.

The question, then, is one of construction and in the ultimate resort must be determined upon tht actual words used, read not in vacuo but as occurring in a single complex instrument, in which one part may throw light on another.

Unless there was implied a limitation on the exercise of the amending power under Section 29 4Section 29 4 could itself be amended to make it clear that Section 29 2 is amendable. Rau to make fundamental rights subject to the directive principles.