RATIO DECIDENDI (kesavananda bharit)

• (The majority view in Kesavananda Bharati

Case) Chief Justice SM Sikri and Justice, JM Shelat,
Justice KS Hegde, Justice AN Grover,
Justice Jaganmohan Reddy, Justice Hans
Raj Khanna, Justice BK Mukherjea: The power to
amend does not include the power to change the
basic structure of the Constitution to the point of
altering its identity. This proposition will be used to
determine the legitimacy of a constitutional amendment.
• (The majority view) Justice YV Chandrachud,
Justice AN Ray, Justice DG Palekar, Justice KK
Mathew, Justice MH Beg, Justice SN Dwivedi:
the power of amendment under Article 368 is
plenary, with no implicit or inherent limits, and
includes the ability to introduce, change, or repeal
various articles of the Constitution, except those
relating to fundamental rights.
• Although agreeing with this viewpoint, Justice Khanna
had noted that the power does not apply to changing
the basic structure or framework of the Constitution.
• Justice Ray and Justice Mathew agreed with the view
of plenary rights, but they believe that there cannot be a
complete repeal of the Constitution, resulting in a
constitutional void. According to them, any reform
should leave a government mechanism in place for the
development, interpretation, and enforcement of laws.

• RATIO OF THE COURT: (pt)
• The court observe from the proceedings it appears that the question of
providing medico-legal facilities, at the upgraded primary health centres
throughout the country was under consideration but the Committee was
of the opinion  that time was not ripe to think of  providing  such
facilities  at the upgraded primary health centres.  One of the 
documents  which  forms part of the  Union  of  India’s af davit  is  the
copy of a letter dated 9th of  May,  1978 which  indicates  that a report
on some  aspects  of  Medico Legal Practice in India had been
prepared and a copy of such report  was furnished to the Health
Secretaries of  all  the States and Union Territories more than eleven
years back.  
• From these documents appended to the af davit  of  the Union of India,
it is clear that the matter has been  engaging  the attention of the
Central Government as also of  the Governments of the States and the
Union Territories for over a  decade.  No improvement of the  situation, 
however,  is perceptible and the problem which led to the ling of  this
petition  seems  to exist in hospitals and  private  nursing homes and
clinics throughout the country.
• In course of the hearing, the court directed the petitioner to place on
record for the consideration of the Court and  the respondents  a draft
guideline which could be prescribed  to ease the situation keeping the
professional ethics in  view. When the same was led, copies thereof
were circulated to the respondents and all parties have been heard on
the basis of the guidelines submitted on behalf of the petitioner.
• The Medical Council of India has placed on record a copy of the Code
of Medical Ethics and counsel has  made  a statement that there is no
prohibition in law justifying the attitude of the doctors as complained. On
the other hand, he stated that it is a part of the professional ethics to
start treating the patient as soon as he is brought before the doctor for
medical attention inasmuch as it is the paramount obligation of the
doctor to save human life and bring  the patient out of the risk zone at
the earliest with a view  to preserving  life.
• The court observed that there can be no second opinion that
preservation of human life is of paramount importance. That is so on
account of the fact that once life is lost, the status quo ante cannot be
restored as resurrection is beyond the capacity of man. The patient
whether he be an innocent person or be a criminal liable to punishment
under the laws of the society, it is the obligation of those who are in
charge of the health of the community to preserve life so that the
innocent may be protected and the guilty may be punished.
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• Social laws do not contemplate death by negligence to tantamount to
legal punishment. Article 21 of the Constitution casts the obligation on
the State to preserve life. The provision as explained by this Court in
scores of decisions has emphasised and reiterated with  gradually
increasing emphasis that  position.  A doctor at the Government
hospital   positioned to meet this State obligation is, therefore, duty-
bound to extend medical assistance for preserving life. Every doctor
whether at a Government hospital or otherwise has the  professional
obligation to extend his services with due  expertise for protecting life
• The matter  is extremely urgent and in our view, brooks no delay to 
remind every  doctor of his total obligation and assure him of  the
position that he does not contravene the law of the land  by proceeding 
to  treat the injured victim on  his  appearance before him either by
himself or being carried by others. The court made it clear that zonal
regulations  and  classi cations  cannot  also  operate as fetters in  the 
process  of discharge  of  the obligation and irrespective of  the  fact
whether  under instructions or rules, the victim has  to  be sent
 elsewhere  or how the police shall be  contacted,  the guideline 
indicated in the 1985 decision of the  Committee, as extracted above, is
to become operative.
• Justice Oza concurring observed It could not be forgotten that seeing
an injured man in a miserable condition the human instinct of every
citizen moves him to rush for help and do all that can be done to save
the life. It could not be disputed that in spite of development
economical, political and cultural still citizens are human beings and all
the more when a man in such a miserable state hanging between life
and death reaches the medical practitioner either in a hospital (run or
managed by the State) public authority or a private person or a medical
professional doing only private practice he is always called upon to rush
to help such an injured person and to do all that is within his power to
save life. So far as this duty of a medical professional is concerned its
duty coupled with human instinct, it needs no decision nor any code of
ethics nor any rule or law. Still in the Code of Medical Ethics framed by
the Medical Council of India Item 13 speci cally provides for it.
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RATIO DECIDENDI: (maneka gandhi)

1. Reliance was placed on the decision of A.D.M

Jabalpur and Satwant Singh Sawhney v. D.
Ramaratham Assistant Passport Of cer
Government of India.
2. The bench opined that “personal liberty” protected
and guaranteed by Article 21 is very wide and
comprehensive and it includes the right to travel abroad
within the ambit of personal liberty.
3. While dealing with the issues of the grant, suspension,
impounding, or cancellation of passport of an individual,
many aspects need to be considered, the dealing of the
particular individual with the authorities of other states,
the activities which he has undertaken some concerns
regarding national security also arises.
4. Therefore, the grant of discretionary powers to the
executive cannot be considered arbitrary and is an
important power in the hands of the state to protect
integrity.
5. The orders passed under section 10(3) of the act
should be established on some material ground even
reasonable apprehension originating from creditable
sources is suf cient cause.
6. It is a well-settled principle it is the right of an individual
to have a reasonable opportunity to be heard.
7. The bench opined that the Central government was
entirely unjusti ed when they withheld the explanations
of the order from the petitioner and additionally was in
breach of statuary provision.
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8. They even did not provide the petitioner the reasonable
opportunity to be heard violating the principle of natural
justice embedded in audi alteram partem.
9. When any action of the executive deprives or restricts
the fundamental rights of any entity, it is the
responsibility to execute to proceed in such a manner
which is not arbitrary, unreasonable or unfair.