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P. 31
70 Years of Indian
Constitution
While considering the scope of 17th
or the purpose of convenience, let me restrict the
analysis to Article 19 which confers Freedom of amendment in Golaknath’s case,
FSpeech and expression, to assemble and to form Hon’ble Supreme Court has held that the
association, move freely and reside and settle in any Parliament has no amending power with
part of the territory and to practice any profession. These the reference to fundamental rights of
freedoms are more fundamental in nature. However, the Constitution
the rights are being subjected to reasonable restrictions
subject to security of the states, public order, decency, However, in Sajjan Singh’s case it was held that the
etc, while considering the scope of 17th amendment in power to amend the Constitution conferred by ‘Article 368
Golaknath’s case, Hon’ble Supreme Court has held that includes even the power to take away fundamental rights
the Parliament has no amending power with the reference under Part III’. Later in Golaknath’s case, by 6:5 majority,
to fundamental rights of the Constitution. However, this it was held that ‘the fundamental rights are outside the
issue was once again raised in Keshavanand Bharati’s amendmentary process and if the amendment seeks to
case and the Hon’ble Supreme Court by majority of 7: 6 abridge or take away any of the rights and any inroad into
has held that: “Article 368 does not enable Parliament to the rights of Part III will be illegal and unconstitutional.’
alter the basic structure or framework of the constitution”. Subsequently in the matter of Keshavananda Bharti,
Therefore, though the fundamental rights or the most the Apex Court, with a majority of 7:6, has held that the
valid rights are the corner stone of the Constitution but, basic structure of the Constitution or the basic feature
they need not be a part of the basic structure of the of the Constitution cannot be altered. The principles
Constitution. The right to property was taken out from of Keshavananada Bharti, was in dilemma in the year
Part III but made a Constitutional right. 1973. In the matter of Raj Narain vs. Indira Gandhi, it
However, some of the fundamental rights have got the was held that the judicial review is the basic structure of
characteristics of the basic structure of the Constitution. the Constitution and hence the amendment which takes
The fundamental rights have travelled from the first away the powers of the High Court or Supreme Court was
amendment in Shankari Prasad in the Shankari Prasad held to be unconstitutional. Further in the Minerva Mills
vs. Union of India case in 1951. According to this, the case, following Keshawananada Bharti, it was held that
“concept of fundamental right is something which cannot the 42nd amendment is beyond the amending power of
be touched say, by an amendment of the Constitution, the Parliament and is void since it damages the basic or
thereby Fundamental rights could be abridged by a essential features of the constitution.
constitutional amendment.” In Minerwa Mill’s case an attempt was made to define
70 Years of Indian Constitution 31
