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The Savior of Indian Constitution – His Holiness Kesavananda Bharati

A lead petitioner that led the Supreme Court of India evolve the celebrated doctrine of basic structure passed away aged 79. According to police reports, he died at Edneer Mutt due to age-related ailments. Bharati, was a lead petitioner of a case filed challenging the land reforms of Kerala enacted with an aim of distributing the land to landless tillers.[1] Further, he challenged the 29th Constitution Amendment which included the Kerala Land Reforms Act, 1963 in 9th schedule of the constitution and immunizing the challenge on the ground of violation with regard to fundamental rights guaranteed by Indian Constitution. The case, which created a revolution was heard in 68-days marathon before a 13 judge bench.[2]

The renowned Indian jurist and lawyer Nani Palkhivala advocated and represented Kesavananda Bharati in the present matter. Hans Raj Khanna J. asserted while reviewing the matter that the basic structure doctrine of the constitution shall assert all the constitutional principles and values. The doctrine forms basis of power of Indian judiciary to review and override the amendments to the Constitution of India enacted by the Indian Parliament.[3] In this blog, we shall scrutinize the case in-depth with facts, issues raised, decision and impact it created in our constitution.

Facts of Incident and the issues it dealt with

The Kesavananda Bharati was a senior plaintiff and head of Edneer Matha – a Hindu Matha situated in a Edneer, Kerala. He challenged the Kerala government’s attempt to undertake state land reform acts and impose restrictions on the management of the property. Nani Palkhivala convinced Bharti to file a petition under Article 26 concerning the right to manage religiously owned property without government interference. He also filed a petition to sought enforcement of rights guaranteed under Article 25[4], 14[5], 19(1) (f)[6] and 31[7].

The case primarily was about the extent of Parliament’s power to amend the Indian Constitution. In this case, court firstly reviewed the decision of Golak Nath v. State of Punjab[8] which reversed the earlier verdicts that ruled that parliament cannot amend fundamental rights. Secondly, the court decided the constitutional validity of several amendments passed. The right to property was removed as a fundamental right and parliament had also given itself the power to amend any part of the constitution and passed a law that cannot be reviewed by the court. The case dealt with a necessary debate of executive vs. judiciary which were prominently displayed in the amendments of constitution and ended with Kesavananda Bharati’s case.[9] In the political dimension, case represented the ‘fight for supremacy’ often depicted by the then Prime Minister Indira Gandhi.

Decision of the Court

By upholding the validity of clause (4) of Article 13 and a corresponding provision of Article 368 (3) of the Indian Constitution, the court settled that the Parliament has the power to amend the fundamental rights of the Indian Constitution. The Court affirmed another proposition which was also asserted in the Golak Nath’s case by ruling that the expression “amendment” of the constitution means any addition or change in any of the provisions of the Constitution within the contours of the Preamble. In addition to this, it stated that the constitution to carry out the objectives in Preamble and the Directive Principle State Policy. When stated in context with fundamental rights, it will construe that the fundamental rights cannot be abrogated and reasonable abridgement of fundamental rights cannot be affected in public interest. Henceforth, the true position is that every provision of the constitution can be amended provided that the basic foundation and structure of the constitution remains the same. The decision was passed in a ratio of 9:4, where 9 judges were the signatories of the statement and other 4 judges did not sign.[10]

Understanding the doctrine of Basic Structure

The origin of the doctrine of basic structure has been found in the German Constitution which was amended to protect the basic laws of the country, after the Nazi Regime. The original Weimar Constitution which gave parliament the right to amend the constitution with a 2/3rd majority was used by Hitler to make radical changes. The New German Constitution introduced the substantive limits on parliament’s power to amend certain parts of constitution which were stated as a ‘basic law’. [11]

Subsequently, in India, the basic structure doctrine has formed the foundation of judicial reviews for all the laws passed by the parliament. No law can impinge the basic structure and it has a continuing deliberation. The courts hold parliamentary democracy, judicial review, secularism etc. under its list which is not exhaustive.

The Aftermath – Fallout of the Verdict

On a political ground, the judgment had the biggest fallout as the judiciary faced biggest litmus test against the executive. The congress led judicial officers Justice JM Shelat, AN Grover, KS Hegde and AN Ray did not take the majority opinion appointed by Justice Sikri. This suppression resulted in a decade long battle for independence of judiciary and extent of parliamentary power to appoint the judges.

The ruling cemented the rejection of majoritarian which impulses to make the sweeping charges or even replace the constitution. It underlined the foundations of a modern democracy laid down by the makers of the Indian Constitution.

[1] Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; AIR 1973 SC 1461. [2] The Live Law, Kesavananda Bharati lead petitioner in the basic structure case passes away, https://www.livelaw.in/top-stories/kesavananda-bharati-the-lead-petitioner-in-basic-structure-case-passes-away-162471 (last visited on 7th September 2020). [3] Arvind P. Datar, The case that saved Indian Democracy, https://www.thehindu.com/opinion/op-ed/the-case-that-saved-indian-democracy/article12209702.ece (last visited on 7th September 2020). [4] Art. 25, Right to practice and propagate religion, Constitution of India. [5] Art. 14, Right to Equality, Constitution of India. [6] Art. 19(1) (f), Freedom to acquire property, Constitution of India.

[7] Art. 31, Compulsory Acquisition of Property, Constitution of India. [8] Golak Nath v. State of Punjab, 1967 AIR 1643, 1967 SCR (2) 762. [9] The Indian Express, explained: In SC reading of basic structure, the signature of Kesavananda Bharati, https://indianexpress.com/article/explained/kesavananda-bharati-case-basic-structure-of-the-constitution-supreme-court-6585110/ (last visited on 7 September 2020). [10] Lok Sabha Secretariat, Constitution Amendment: Nature and Scope of the Amending Process, https://web.archive.org/web/20131203013055/http://164.100.47.134/intranet/CAI/1.pdf (last visited 7th September 2020). [11] Constitute, German’s constitution of 1949 with amendments through 2014, https://www.constituteproject.org/constitution/German_Federal_Republic_2014.pdf?lang=en (last visited 7 September 2020). The author of this post is Aarushi Relan (a recent law graduate from Amity Law School, Noida)

The views expressed in this article belong to the author/s and do not necessarily reflect those of the JCLJ Blog. We welcome comments and contributions to this blog – please comment below.



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