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MohitTyagi


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ACT: Constitution of India Forty Second Amendment Act, Sections 4 and 55-Whether the Sections are beyond the amending power of the Parliament under Article 368 of the Constitution and therefore void-Whether the Directive Principles of State policy contained in Part IV of the Constitution can have primacy over the fundamental rights conferred by Part 111 of the Constitution-Constitution of India Articles 14, 19, 31C, 38 and 368. HEADNOTE: Minerva Mills Ltd. is a limited company dealing in textiles. On August 20,1970 the Central Government appointed a committee under section IS of the Industries (Development Regulation) Act,1951 to make a full and complete investigation of the affairs of the Minerva Mills Ltd as it was of the opinion that there had been or was likely to be substantial fall in the volume of production. The said Committee submitted its report to the Central Government in January 1971, on the basis of which the Central Government passed an order dated October 19, 1971 under section 18A of the 1951 Act, authorising the National Textile Corporation Ltd., to take over the management of the Mills on the ground that its affairs are being managed in a manner highly detrimental to public interest. This undertaking was nationalised and taken over by the Central Government under the provisions of the Sick Textile Undertakings (Nationalisation) Act, 1974. The petitioners challenged the constitutional validity of certain provisions of the Sick Textile Undertakings (Nationalisation) Act, 1974 and of the order dated October19, 1971, the constitutionality of the Constitution (Thirty Ninth Amendment) Act which inserted the impugned Nationalisation Act as Entry 105 in the Ninth Schedule to the Constitution, the validity of Article 31B of the Constitution and finally the constitutionality of sections 4 and 55 of the Constitution (Forty Second Amendment) Act, 1976 on the ratio of the majority judgment in Kesavananda Bharati's case, namely, though by Article 368 of the Constitution Parliament is given the power to amend the Constitution, that power cannot be exercised so as to damage the basic features of the Constitution or so as to destroy its basic structure. Opining that sections 4 and 55 of the Constitution (Forty Second Amendment) Act are void and beyond the amending power of the Parliament, the Court by majority (Per Chandrachud. C.J., on behalf of himself, A. Gupta. N.L. Untwalia & P.S. Kailasam, JJ.) ^ HELD: (1) The newly introduced clause S of Article 368 transgresses the limitations on the amending power of Parliament and is hence unconstitutional. It demolishes the very pillars on which the preamble rests by empowering the Parliament to exercise its constituent power without any "limitation whatever". No constituent power can conceivably go higher than the sky-high power conferred by clause (5), for it even empowers the Parliament to "repeal the provisions of this Constitution", that is to say, to abrogate the democracy. 207 and substitute for it a totally antithetical form of Government. That can most effectively be achieved, without calling a democracy by any other name, by a total denial of social, economic and political justice to the people, by emasculating liberty of thought, expression, belief, faith and worship and by abjuring commitment to the magnificent ideal of a society of equals. The power to destroy is not a power to amend.
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Text Practice - Time 1043 - English

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