KESAVANANDA BHARATI v/s THE STATE OF KERALA

Author : Pankhuri Gupta, Brahmanand College,  Kanpur

Ques before the Apex Court :
Is the power of the parliament so   Supreme that it can amend any provision of the Constitution including the Fundamental Rights ?

Yes , This was the question before the apex court to decide in the Landmark Case of Kesavananda Bharati v. The State of Kerala.

INTRODUCTION
Despite crores of cases being disposed-off  in India till date, why is the Kesavananda Bharati case the most pivotal and a groundbreaking milestone ?

The case of kesavananda bharati is one of the most important judgements in the history of Independent India, it is the longest running case in India till date, the trial for which was carried out for 68 days, the judgement of which came in 703 pages, during the course of this case, the Attorney General of India who made comparison of the constitution of India with 71 constitutions of the world, more than 100 cases were cited during the proceedings of this case,  it was heard by the largest bench constituted till date consisting of 13 judges and the judgement was made in the wafer thin majority of 7:6 judges. It is referred to as the case which saved India’s Democracy.

The phase between 1951 to 1980 was a phase of tussle and a match of volleyball between the Judiciary on one end and the Parliament on the other , where one side was keen to give superiority to some DPSP’s over few Fundamental Rights while the courts argued for the superiority of the Fundamental Rights enshrined in the constitution.
January 26th 1950 the day on which our constitution came into force. Pandit Nehru made a public remark that, “Constitution should not be so rigid that it cannot be adapted to the changing needs of national development and strength. Any popular demand for changing the system should be capable of realisation”. The Constitution is a document of people’s faith and aspirations and a gift of the people of India to themselves. The aspirations of people keep on changing , and so should the Constitution be , which should not be so rigid and must be able to reflect these changing aspirations hence there’s a need for amending the constitution therefore differentiating it from a rigid religious text.
But is the amending power of the parliament so Supreme that it can infringe the basic foundational values of the constitution ?
By this judgement of 1973 the Supreme Court curbed this excessive arbitrary power of the parliament and made certain restrictions on the amending power of the parliament under Article 368.

PRECURSORS TO THE KESAVANANDA BHARATI CASE.

The whole story behind the case revolves around land and Right to hold , dispose and acquire property provided in Article 19(1)(f).
First came the case of A.K. Gopalan v. The State of Madras (1950) which dealt with the constitutionality of preventive detention laws enacted by the Parliament, in which the Supreme Court advocated that the Fundamental Rights guaranteed by the constitution of India,  including the rights guaranteed by Article 21 of Right to life and personal liberty are not Absolute and can be at anytime curtailed by the Parliament for reasons of National Security.

Another landmark case was that of Sri Sankari Prasad Singh Deo v. Union of India and The State of Bihar (1951) this was the first trigger point when Sankari Prasad challenged the 1st Constitutional Amendment Act which abolished the zamindar laws, inserted Article 31A , Article 31B and the inclusion of 9th Schedule in the Constitution which curtailed the Right to property,  provided as a Fundamental Right under Article 19(1)(f) of the Constitution. The Attorney General of India argued in this case that the word ‘law’ in article 13(3) does not include a constitutional amendment act, hence the Parliament can abridge or take away a fundamental right from its citizens, not by an ordinary law, but by way of a constitutional amendment act. Hence the Supreme Court held that the power of the parliament to amend any part of the Constitution was Absolute and Unfettered and adjudicated that inclusion of Article 31A, 31B and 9th Schedule is Constitutional and a Constitutional Amendment Act cannot be questioned on mere grounds that it violated any fundamental rights guaranteed under the constitution.
Sajjan Singh v. The State of Rajasthan (1965) challenged the Constitutional validity of 17th Constitutional Amendment Act which ensured that the several land reforms act placed in 9th Schedule would not be challenged in any court of law on the conditions that they violated Fundamental Right like the Right to Equality (Article 14) or the Right to Property (Article 19(1)(f)). The supreme court ruled the same verdict as in the case of Sankari Prasad v. Union of India and validated the 17th Amendment except Justice Mudholkar and Justice M.Hidayatullah who gave dissenting opinions in favour of the petitioner.
The case of I.C. Golak Nath & Ors v. The State of Punjab & Anrs. (1967) was a complete U-turn of the Judiciary when it overruled its own decision given in the case of Sankari Prasad & Sajjan Singh,  and the Supreme Court fixed the ball on its side and ruled with a majority of 6:5 that the power to amend the constitution under article 368 isn’t unlimited or absolute and the word ‘law’ under Article 13(2) includes a Constitutional Amendment Act, hence these fundamental rights are beyond the amending power of the parliament even by using Article 368, the parliament cannot abridge or abrogate any fundamental right  engraved in the constitution .

In response to the above defeat of the Indira Gandhi Government in the case of Golak Nath v. State of Punjab the government responded by way of introducing :
24th Constitutional Amendment Act: which amended Article 13 by adding another clause of 13(4) and also amended  the title of Article 368.
25th Constitutional Amendment Act: Introduced Article 31C
26th Constitutional Amendment Act: Abolition of Privy Purse
29th Constitutional Amendment Act: Kerala Land Reforms Act placed in 9th Schedule.
All these established the groundwork for subsequent cases, including the Kesavananda Bharati Case, which had a lasting impact on the Indian legal system.
The origin of the case can be traced back in 1969-70 , when the Kerala government passed a land reforms act , which gave right to the government to acquire the property of the households including the property of the religious institutions if it was over and above a certain land ceiling and redistribute it among the landless.
There arose multiple challenges to these land reforms act of Kerala, from various corners of their state and ultimately, the Kerala government requested the centre to place this Kerala land reforms act in the 9th Schedule of the Constitution, which would provide  a sense of security to these land reforms, and keep them beyond judicial review. Finally, the centre enacted the 29th constitutional amendment act and placed the Kerala land reforms act in the 9 schedule of the constitution so that no one, nowhere could challenge any of these land reforms act.

All these 24th Amendment,  25th Amendment and 29th Amendment  were challenged by somebody named Kesavananda Bharati , a young man in his 20’s who was a chief of a Hindu Mutt named ‘Edneer Mutt’ in the district of Kerala. In 1970’s , when the kerala government imposed restrictions on the ownership of land uptill a certain limit held by religious institutions in kerala , Bharati’s property of his Mutt came under it’s danger. Eventually , bharati approached the court and on advice of the former attorney general Nani palkhivala filed a case against these land reforms  as they tried to infringe his fundamental rights provided to him under Article 26 of the Constitution in The Kerala High Court . The case eventually reached the Supreme Court , which ruled in favour of the kerala government.
In the meanwhile the Parliament passed the 24th Amendment,  25th Amendment and 29th Amendment  which gave right to the parliament to amend any part of the Constitution.
Kesavananda Bharati filed a petition challenging the validity of all these Amendments arguing that they violated the Basic Structure of the Constitution , This led to the landmark Kesavananda Bharati judgement.
It was in this case that the Supreme Court brought forth the Doctrine of Basic Structure.
The doctrine of basic structure owns its presence from its predecessor that is the Doctrine of Implied Limitation according to which,  there are certain essential aspects of a constitution which are unchangeable and inviolable, even through constitutional amendments, due to their fundamental importance to the constitution’s core character these form the foundational values of every Constitution and the government cannot and should not try to alter it.
The court initially this case held that,  the parliament cannot,  under Article 368, expand its amending power so as to acquire for itself the right to repeal or aborgate the constitution or to destroy its basic features,  although the parliament under Article 368 can amend any part of the Constitution including the Fundamental Rights but without affecting or infringing upon the basic foundational values i.e. The Basic Structure of the Constitution.  Hence the Supreme Court overruled its judgement made in the Golak Nath Case(1967) and stated that the parliament is although empowered to abridge any provision of the Constitution but the constituent power of the parliament even under Article 368 does not enable it to alter the ‘basic structure of the constitution’. The court finally upheld the validity of the 24th , 25th and even the 29th constitutional amendment acts but made a limitless limitation on the power of the Parliament to amend the Constitution by introducing the doctrine of basic structure, which although is not defined anywhere in the Constitution, but is based on the values of the preamble to the Constitution, the doctrine of basic structure is not a list of exhaustive subjects, but altogether an indicative list, which will have add-ons from time to time as and when the supreme court clarifies. The basic structure doctrine is one of the finest examples of judicial creativity in India.
Therefore, there emerged some critics to this doctrine of basic structure, which call it a judicial innovation of something which is not even existing in the present constitution, hence it is a tyranny of the unelected over the elected one’s.
The doctrine is also praised on the grounds that it saved India’s democracy, otherwise we would have degenerated into a totalitarian regime or a one party political system.
But be that as it may, although Kesavananda Bharati lost this case, but Bharat eventually won. The case became one of the most important cases in the Indian constitutional history and Bharati is remembered as the key figure in the fight who played the key role to uphold the principles of democracy and rule of law in india.

Conclusion

The judgment laid down various principles that have become a bedrock of Constitutional law in India . The case for the first and the last time proved that the government of india is not above the Constitution of india , they although have the power to amend any part of the Constitution but cannot infringe upon its basic ideals enshrined in the constitution on which its Supreme law of the land rests. The judgment has been instrumental in shaping the indian judicial approach of constitutional interpretation and provide for limitations on the power of the parliament which affirmed the supremacy of the constitution beyond any reasonable doubt. The significance of the case lies in the fact that it established the doctrine of basic structure , which holds certain fundamental features of the constitution , like the supremacy of the constitution,  separation of judiciary , the rule of law,  etc. It ensure that the constitution remains living document that is responsive to changing times while preserving it’s fundamental values and principles.

FAQS

Ques : What is the Doctrine of Basic Structure ?

Ans: The Doctrine of Basic Structure is a judicial principle in India that limits the power of Parliament to amend the Constitution. It asserts that certain fundamental features of the Constitution, considered its “basic structure,” cannot be altered or destroyed, even through constitutional amendments. This doctrine, established in the landmark Kesavananda Bharati case (1973), safeguards the core principles and values of the Constitution, ensuring its stability and continuity.

Ques :  What is the Significance of the Kesavananda Bharati case ?

Ans: The Kesavananda Bharati case is significant in Indian constitutional law because it established the doctrine of basic structure of the Constitution. This doctrine limits Parliament’s power to amend the Constitution by preventing it from altering certain fundamental features that form the core of the Constitution. The case also reaffirmed the power of judicial review, meaning the Supreme Court can review and strike down constitutional amendments that infringe upon the basic structure.