Introduction

The case of Kesavananda Bharati v. State of Kerala is perhaps the most well-known constitutional decision of the Supreme Court of India. While ruling that there is no implied limitation on the powers of Parliament to amend the Constitution, it held that no amendment can do any violence to its basic structure. Further, it established the Supreme Court’s right of review and therefore, established its supremacy on constitutional matters.

Background of the case

In February 1970, Swami HH Sri Kesavananda Bharati, Senior head of “Edneer Mutt”, situated in Edneer, Kasaragod District, Kerala, challenged the Constitution (29th Amendment) Act, 1972, which placed the Kerala Land Reforms Act, 1963 and its Amending Act into the IXth Schedule of the Constitution. Although the state invoked its authority under Article 21, an Indian jurist, Nanabhoy Palkhivala, convinced the Swami into filing his petition under Article 26, concerning the right to manage religiously owned property without government interference. Major amendments to the Constitution (the 24th, 25th, 26th and 29th) had been enacted by Indira Gandhi’s government through the Parliament to get over the judgments of the Supreme Court in R.C. Cooper (1970), Madhavrao Scindia (1970) and Golak Nath. The first had struck down bank nationalization, the second had annulled the abolition of privy purses of former rulers and the third had held that the amending power could not touch Fundamental Rights. All these amendments were under challenge in Kesavananda. Since Golak Nath was decided by eleven judges, a larger bench was required to test its correctness. And so, 13 judges were to sit on the Kesavananda bench. Even though the hearings consumed five months, the outcome would profoundly affect India’s democratic processes.

Issues raised

Several issues were raised in this case. They were:

  1. Whether constitutional amendment as per article 368 are also applicable to Fundamental Rights.
  2. Whether 24th amendment act 1971 is valid.
  3. Whether section 2(a), 2(b) and 3 of 25th amendment is valid.
  4. Whether 29th amendment act 1971 is valid.

Judgement

The Supreme Court reviewed the decision in Golaknath v. State of Punjab, and considered the validity of the 24th, 25th, 26th and 29th amendments. The case was heard by the largest ever Constitutional Bench of 13 Judges. The Bench gave eleven separate judgements, which agreed on some points and differed on others. There are 11 separate judgements of each judge, however the summarized form of the same is- Writ Petition No. 135 of 1970 was filed by the petitioner on March 21, 1970 under Article 32 of the Constitution for enforcement of his fundamental rights under Articles 25, 26, 14, 19(1)(f) and 31 of the Constitution. He prayed that the provisions of the Kerala Land Reforms Act, 1963 (Act 1 of 1964) as amended by the Kerala Land Reforms (Amendment) Act 1969 (Act 35 of 1969) be declared unconstitutional, ultra vires and void.

In a controversial move, during the pronouncement, Chief Justice Sikri circulated a paper entitled “View by the Majority”, which set out six propositions and these propositions, lifted from Justice Khanna’s judgment, have become synonymous with the ratio of Kesavananda Bharati. As a result, only nine out of the 13 Judges signed the “View by the Majority”.

The Chief Justice concluded that “as a matter of construction, there is no escape from the conclusion that Article 368 provides for the amendment of the provisions contained in Part III without imposing on Parliament an obligation to adopt the procedure prescribed by the proviso.”

The Supreme Court in Kesavananda Bharati ultimately upheld the Land Reform Acts and the Amendment Acts that had been challenged. The only provision that was struck down was that portion of the Constitution (25th Amendment) Act, which denied the possibility of judicial review. Aside from the limit imposed on the ability of Parliament to alter the basic structure, the case was an overall success for the Government.

Thus, the summary of the judgement is as follows:

  1. It said that the Parliament could not interfere with the basic structure of the Constitution, but left open the question of what constituted “basic structure”. As to what are these basic features, the debate continues.
  2. The judgment also refused to consider the right to property as a fundamental right that was covered by the ‘basic structure’ doctrine. Despite that, the right to private property, is more solid today yet not absolute, as it should be in a market economy.
  3. This judgment ruled that Article 368 does not enable Parliament in its constituent capacity to delegate its function of amending the Constitution to another legislature or to itself in its ordinary legislative capacity.
  4. The basic structure doctrine applies only to the constitutionality of amendments and not to ordinary Acts of Parliament, which must conform to the entirety of the Constitution and not just to its basic structure.

Basic Structure Doctrine

The basic structure doctrine is an Indian Judicial Principle that the Constitution of India has certain basic features that cannot be altered or destroyed through amendments by the parliament. Key among these “basic features”, are the fundamental rights granted to individuals by the constitution. The doctrine thus forms the basis of a limited power of the Supreme Court to review and strike down constitutional amendments enacted by the Parliament which conflict with or seek to alter this “basic structure” of the Constitution. The basic structure doctrine applies only to constitutional amendments.

It is difficult to infer that the Judges that formed the majority view in Kesavananda Bharati case agreed with each other on what constituted the “basic structure” of the constitution along with the parliament’s power to amend it was limited. Chief Justice Sikri held that there were certain inherent limitations on Parliament’s power to amend based on higher principles underpinning the Constitution, such as the supremacy of the Constitution, the republican and democratic form of Government, separation of powers, and the secular and federal character of the Constitution.

The “View by the Majority” did not agree, acknowledge, harmonize or rationalize these distinctions. Even the legal basis for the “View by the Majority” which was not signed by four of the 13 judges in protest is questionable as it does not form part of any judgment. It was only in subsequent decisions of the Supreme Court, starting from Indira Gandhi v. Raj Narain, that the Courts began formulating a cohesive doctrine of what constituted the “basic structure” of the Constitution.

Significance of the case

The significance of this case is as follows:

  1. This case gave recognition to the supremacy of the Constitution of India and its unalterable features.
  2. It also defined the extent to which Parliament could restrict property rights, in pursuit of land reform and the redistribution of large landholdings to cultivators, overruling previous decisions that suggested that the right to property could not be restricted.

Conclusion

Debates and discussions on the limits on a legislative body to amend a Constitution are endless. Justices Hegde and Mukherjea accepted the thought that no generation should bind the course of generations to come and yet, opinions have differed on what values and principles should constitute the “basic structure” and, therefore, whether value judgments formed in an era of unbridled socialism can be imposed upon future generations.

Prior to Kesavananda Bharati, nearly 30 Constitutional amendments had already been passed since the Constitution came into effect in 1950, and there have been nearly 70 amendments since Kesavananda Bharati. In comparison, the United States has had 27 Constitutional amendments in its 230-years history. However, despite the larger number of amendments made to the Indian Constitution, the hopes and ideas of its framers remain intact and identifiable as the Constitution adopted by the Constituent Assembly in 1949. We owe this principally to the Supreme Court’s decision in Kesavananda Bharati.

 

 

References

  1. The Constitution of India (Twenty-Ninth Amendment) Act,1972
  2. The Kerala Land Reforms Act, 1963
  3. R.C.Cooper Vs Union of India, 1970 AIR 564, 1970 SCR (3) 530
  4. Madhav Raoscindia vs Union of India, 1971 AIR 530, 1971 SCR (3)9
  5. I.C. Golak Nath vs State of Punjab,1967 AIR 1643, 1967 SCR (2) 762
  6. The Constitution (Twenty-Fifth Amendment) Act, 1971
  7. Indira Nehru Gandhi vs Shri Raj Narain & Anr, 1975, AIR 2299, SCR 347
  8. The Constitution of United States of America