By Parth Mahajan, B.A. Llb (H)
Vivekananda Institute of Professional Studies (VSLLS)
One of the most notable judgements rendered by the Hon’ble Supreme Court in His Holiness Kesavananda Bharti Sripadagalvaru & Ors. v. State of Kerala and Anr., (1973) 4 SCC 225. It is popularly known as the Fundamental Rights case or the Basic Structure case. This case has two records in its name. Firstly, it is a case that has been decided by the largest bench to date, which comprised of 13 judges. Secondly, it is also the longest heard case in the history of the Supreme Court of India as its hearing went on for 68 days, starting from 31st October 1972 and ending on 23rd March 1973.
It is to be noted that at that time, the total strength of the Supreme Court was 13 Judges. This means that the full court heard this case. As all the judges were to decide this one case, ad hoc judges had to be appointed to hear all the remaining cases in the Supreme Court.
The major outcome of this case was the Basic Structure Doctrine, which states that though the Parliament has the power to amend the constitution, the power of the Parliament to do so is not unlimited. Amendment can be done only to the extent that it does not alter the very basic fundamentals or the basic structure of the constitution.
His Holiness Kesavananda Bharti (petitioner in the case) was the chief of Edneer Mutt. Edneer Mut is a religious sect located in the Kasaragod district of Kerala. The Kerala Government had enacted the Land Reforms Amendment Act, 1969. This act allowed the government to acquire some land of the Edneer Mutt.
Thus, the petitioner filed a Writ Petition in the Supreme Court, under Article 32 of the Constitution, for the protection of his Fundamental Rights. Protection was sought under Article 25 (Right to practice and propagate religion), Article 26 (Right to manage religious affairs), Article 19(1)(f) and Article 31, which were Freedom to acquire property and compulsory acquisition of property, respectively and Article 14 (Right to Equality).
During the pendency of the Writ Petition, the state legislature passed Kerala Land Reforms (Amendment) Act, 1971. Also, Golaknath v. State of Punjab, 1967 AIR 1643 was a big bow to the power of the Parliament. Thus, Parliament brought a series of amendments so as to overrule this judgement. These amendments were 24th, 25th and 29th Constitutional Amendment Act.
24th Constitutional Amendment Act, 1971
To nullify the effect of Golaknath case that any amendment to the constitution is an exception to Article 13 of the Constitution, the Parliament inserted clause 4 in Article 368 of the Constitution. This clause expressly stated that nothing in Article 13 is applicable to the amendment under this article.
Thus, a distinction was created between enacting any ordinary law and any constitutional amendment.
25th Constitutional Amendment Act, 1971
By means of this amendment, the word “compensation” was replaced with “amount” in Article 31(2) of the constitution. This would mean that even if there is not enough compensation provided, still the land of a person can be acquired.
Also, Article 31(c) was added. Now, the result was that Articles 14, 19 and 31 were not applicable on such laws. Thereby, the scope of judicial review was reduced in order to save the laws that Parliament might enact, here.
29th Constitutional Amendment Act, 1972
This act was aimed at inserting the Kerala Land Reforms Act into the 9th Schedule of the Constitution. This is because, at that time, the laws inserted in the 9th Schedule were immune from Judicial Review. Thus, the Parliament wanted to save this law.
Thus, like this the case became a case involving constitutional interpretation and brought such important question of law, to be answered by the Hon’ble Supreme Court.
The three primary issues which came for adjudication before the court were:
- Whether the 24th Constitutional Amendment Act, 1971 was constitutionally valid?
- Whether the 25th Constitutional Amendment Act, 1971 was constitutionally valid?
- What is the extent of the power of the Parliament to amend the Constitution?
As stated above, the hearing went on for 68 days and in this course, both the parties were heard at length by the court.
Arguments of the Petitioner
The legendary lawyer, Nani Palkiwala went forward with his submissions and submitted that the power of the Parliament to amend the constitution is not unfettered. He submitted that there are some aspects that are of core essence and these cannot be amended by the Parliament. He used the example of democracy and asked if it was possible for the Parliament to amend the constitution and remove it? Thus, he tried to suave the bench that such areas which are the basic fundamentals, cannot be amended.
Reference was made to two things. One was an article written by a German Professor, where he had talked about the limit of the power to amend the constitution in respect of basic elements. Secondly, reference was made to Justice Mudhokar’s dissent in Sajjan Singh v. State of Rajasthan, 1965 AIR 845.
It was also contended that the act of the state legislature was violating the right to religion under article 25 and 26. Also, the act was violating the property rights of the petitioner under Article 19(1)(f) read along with Article 31.
Arguments of the Respondent
The state government defended its actions and the Parliament defended its powers to amend the constitution.
Reference was made to Shankari Prasad v. Union of India, AIR 1951 SC 455, and it was submitted that the Parliament has unfettered power to amend the constitution. The respondent contended that the constitution envisages a system that has supremacy of Parliament.
It was also argued that if Parliament is not given the unlimited and unfettered power to amend the constitution, then it will not be possible to bring social reforms and fulfil the values as cherished in the Preamble. Thus, it is in the best interest of fulfilling the objectives of the constitution that Parliament has such power.
The Parliament clearly wanted unlimited power to amend the constitution, as of course a limitation on one’s power is never appreciated by anyone.
The court gave the judgement in this case on 24th April 1973, which was the last day of the tenure of CJI S.M. Sikri. It is great luck that the judgement was delivered this day, because had it not been done so, then as per the rules of the court, if a matter has been heard and a judge who heard that case, but retires without giving the judgement, then the hearings are held afresh. Thus, is great luck that the judgement came on the last day of the tenure of Justice S.M. Sikri, else the mammoth work had to be done once again, leading to the wastage of precious judicial time and resources of the parties.
The judgement of the court came by a razor-thin majority of 7:6. The majority judgement was given by Justices S.M. Sikri, A.N. Grover J.M. Shelta, B.K. Mukharjia, P. Jagmohan Reddy, Khanna and K.S. Hegde. The minority opinion was given by Justice A.N. Ray, K.K. Mathew, S.N. Dwivedi, M.H. Beg and Y.V. Chandrachud.
The court held that the Parliament has the power to amend the constitution, but this power is subject to the basic structure of the constitution. Thus, amendment of any provision of the constitution is possible, if it does not disturb the basic structure of the constitution.
Some features of the constitution were identified as a part of the basic structure, like Supremacy of the Constitution, Free and Fair Elections, Independence of Judiciary, Separation of Powers, Secularism, Federal Character, Republic, Democracy. It was also said that this list is not exhaustive.
The court upheld the constitutionality of the 24th Constitution Amendment Act, 1971 in its entirety. Whereas, part 1 of the 25th Constitution Amendment Act, 1971 was upheld as constitutional, but part 2 of the same was held to be ultra vires of the constitution. This means that changing the word “compensation” with “amount” in Article 31(2) was valid, but the later part which denied the Judicial Scrutiny by non-application of Article 14, 19 and 31 as unconstitutional.
Indian Jurisprudence can take pride in the fact that it has gifted the word, the doctrine of basic structure. This is because despite there being academic discussions, even some dissents, it was for the first time that a court had accepted the doctrine of basic structure. Today, this doctrine is widely accepted and courts in many countries have adopted this doctrine by citing the Kesavananda Bharti case.
The example given by Nani Palkhiwala in the court was so vivid and real. If there exists no limit on the power of Parliament to amend the constitution, then it can do just anything. If there came a majoritarian government, it might do away with democracy and become the ruler. The country could be turned from Republic to Dynasty by bestowing anyone on the throne. Even long-cherished principle like Secularism would have been endangered by a majoritarian tyrant.
Or even the safeguards of the fundamental rights could be done away by the Parliament and citizens would be deprived of protection against the state. All the Fundamental Rights, may it be Right to equality, Right to Life etc. would become redundant in just a stroke.
Even if not thinking too way, it could simply result in doing away with the right to approach the court, which in turn would make all the rights barren as there would be no place to enforce it. This could also take the indirect form of meddling with the independence of the judiciary.
Thus, it is of absolute importance that the very base or the core principles on which the constitution is standing must remain untouched, for only then may what government may come, there would not be any threat to the earned freedom for which many freedom fighters fought at all possible costs.
It does not mean that all the governments are to have such an attitude as stated above, but there remains a possibility that there can be any such government. Moreover, even if there is no such government, still safety valves must remain because the system is run by humans and humans can make mistake even if they are acting with the best of intention and for a noble cause. The fact that this mistake can cause harm or infringement of the right to a single citizen or masses is enough reason to say that such a stringent position regarding the basic structure is a must in all democracies.
It can be put in such words that if the Indian Constitution is a living and breathing document, then the doctrine of basic structure is its bodyguard, which saves it from all forms of possible attacks.
The striking down of the second part of the 25th Constitutional Amendment Act, 1971 is also a laudable part of the judgement as there cannot exist any smart way by which Judicial Review and application of fundamental rights can be overshadowed. Also, when Judicial Review is also a part of the basic structure, then how can any amendment violating the basic structure be sustained.
To conclude, there is not even iota of doubt that this judgement is a landmark judgement of the Hon’ble Supreme Court. It came in 1973 but still is frequently quoted. This again shows how important judgement is even in the present times. Thus, it is truth, when it is said that the Kesavananda Bharti case shaped and saved Indian democracy.
The fact that this judgement has also caused the adoption of the doctrine of basic structure in other countries is a matter of great pride that the Supreme Court of India rendered such a judgement which turned out to be useful for other jurisdictions as well.
In this case, the Hon’ble Supreme Court proved that it is the upholder of the constitution, preserver of the rights of citizens and the institution which accepts changes and renders judgements that are progressive, path-breaking and inspire the world.