In the Kesavananda Bharati case, the struggle between the legislative and the judiciary resulted in the “fundamental structure” theory. Talk about it. What impact does the case have on Parliament’s ability to modify the Constitution? (Answer in 250 words)
On the occasion of Constitution Day 2019, we delve into the concept of Transformative Constitutionalism. Transformative Constitutionalism refers to the idea that a constitution is a tool for the profound transformation of a society, promoting values such as social justice, equality, and human rightsRead more
On the occasion of Constitution Day 2019, we delve into the concept of Transformative Constitutionalism.
Transformative Constitutionalism refers to the idea that a constitution is a tool for the profound transformation of a society, promoting values such as social justice, equality, and human rights.It actively work to rectify historical injustices and promote societal progress.
There are many recent case laws across various jurisdictions illustrate how courts are using constitutional principles :
NAVTEJ SINGH JOHAR CASE: It aided to end to decades of criminalisation of homosexuality.
In this landmark case, the Supreme Court of India decriminalized consensual homosexual acts by striking down Section 377 of the Indian Penal Code, which was a colonial-era law criminalizing
“carnal intercourse against the order of nature.” The court recognized the transformative nature of the Indian Constitution, emphasizing dignity, autonomy, and the need to protect marginalized communities from discrimination.
This decision was a significant step towards LGBTQ+ rights in India, transforming societal norms and promoting inclusivity.
Hence, using the constitution as a tool to address historical injustices, protect human rights, and promote societal progress, Courts play a crucial role in interpreting constitutional principles to achieve these transformative goals, ensuring that the constitution is not merely a static document but a dynamic instrument for positive societal change.
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All democratic countries are governed by a Constitution. In the 1967 Golaknath case, India's Supreme Court ruled that Parliament couldn't amend fundamental rights. Adolf Hitler's transformation of Germany's Weimar Constitution from democratic to dictatorial is a notable example of altering a constitRead more
All democratic countries are governed by a Constitution. In the 1967 Golaknath case, India’s Supreme Court ruled that Parliament couldn’t amend fundamental rights. Adolf Hitler’s transformation of Germany’s Weimar Constitution from democratic to dictatorial is a notable example of altering a constitution.
In 1972, the Keshavananda Bharati case settled the debate on Parliament’s power to amend the Constitution. Keshavananda Bharati, chief priest at Sri Edneer Mutt in Kerala, challenged the Kerala Land Reforms Act of 1963, claiming it violated Article 26 on religious freedom. This case allowed the Supreme Court to define Parliament’s amendment authority.
The Court’s ruling affirmed the Constitution’s supremacy and established the “basic structure doctrine,” which prevents amendments that alter the fundamental framework of the Constitution. This doctrine was later applied in the Minerva Mills and Waman Rao cases. The 24th and 25th Amendments of 1971 aimed to nullify the Golaknath judgment.
The Keshavananda Bharati case, concluded in March 1973 by a 13-judge bench, resulted in a 7:6 decision, with Justice H.R. Khanna as the tiebreaker. Although Bharati lost, the basic structure doctrine was established. Justice A.N. Ray, who dissented, later became Chief Justice of India.
The Keshavananda Bharati case was crucial in shaping Indian constitutional law, ensuring protection against potential authoritarianism.
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