Author: Cheshta Vashishtha
College: Narsee Monjee Institute of Management Studies, Chandigarh
Abstract
Does the ability of a constitution to be amended to a degree of such magnitude violate its nature? Does the power to amend necessarily include the power to destroy? These questions, once confined to constitutional theory, became the defining legal issues before the Supreme Court of India inKesavananda Bharati v. State of Kerala.
The case was heard by the largest Constitutional Bench in the history of Indian judiciary and was argued on 24 April 1973.The case was argued by the largest Constitutional Bench ever in the history of Indian judiciary and transformed the ideology of Indian Constitution in its fundamental nature. The Supreme Court decided by a majority of 7:6 that though the Parliament has broad powers under Article 368 to amend the Constitution, they are not absolute. It has no power to change or destroy the Basic Structure of the Constitution, its core essence which imparts meaning and permanency to the Republic.
The judgment has struck a constitutional balance between parliamentary sovereignty and constitutional supremacy. It enabled the Constitution to adapt to the social and political realities of the times without compromising its core principles. After more than half a century, the 20th constitutional decision of Kesavananda Bharati remains one of the most influential in the world, protecting Indian democracy from the threat of constitutional absolutism.
When the Constitution Faced Its Greatest Test
“A Constitution is not a piece of paper; it’s the promise that no power established by it can be more powerful than the power of the people themselves.”
In every democracy eventually comes the time when the issues have to be faced and the question posed will influence the nation’s destiny for many years to come. In every democracy comes the time when a question has to be answered which will shape the destiny of the nation for many years to come. In India, the time came in the year 1973 when the Supreme Court was called upon to decide upon a question of extraordinary constitutional importance:
Can Parliament amend every provision of the Constitution without limitation, or are there certain principles so fundamental that they remain beyond the reach of even a constitutional amendment?
This was not just a battle between an individual citizen and the State. It was a battle of two competing visions of a constitution. One of them considered Parliament’s amending power as unlimited since it represented the will of the people. The other suggested that some of the constitutional principles could not be subject to the whims of the political majority, or else, democracy would not survive.
Ironically, the case that inspired this historical debate was not a struggle over constitutional theory. It began with a challenge brought by Kesavananda Bharati, the head of the Edneer Mutt, a Hindu religious institution in Kerala, against legislation affecting the Mutt’s property. What appeared to be an ordinary dispute concerning land reforms soon evolved into the most significant constitutional case in India’s history.
The resolution of the Supreme Court would set a precedent that would forever shape the relationship between Parliament, the Judiciary and the Constitution. More important, it would lay down a principle which today still safeguards Indian democracy – the Basic Structure Doctrine.
Historical Background
The genesis of Kesavananda Bharati is traced to the constitutional changes after the Independence of India. The Constitution of 1950 aimed to achieve two twin goals: one to safeguard the individual liberties through ‘Fundamental Rights’ and the other to realize social and economic justice through ‘Directive Principles of State Policy’. At times, these objectives came into conflict.
Large and powerful landlords and the distribution of agricultural land was one of the major concerns of independent India and the land reforms were to be implemented to bring an end to this. A number of State Legislatures passed prohibition laws. Although they were aimed at ensuring social justice, they were often met with opposition from landowners on the basis that they infringed the constitutional rights to property guaranteed by Articles 19(1)(f) and 31 as they were then worded.
To ensure the agrarian reform laws were not struck down due to violation of Fundamental Rights, Parliament passed the Constitution (First Amendment) Act, 1951, which added Articles 31A and 31B and the Ninth Schedule to the Constitution to place certain laws beyond the constitutional challenge process.
The scope of Parliament’s jurisdiction to amend the Constitution soon became a frequent constitutional issue.
In Shankari Prasad v. Union of India (1951) and subsequently in Sajjan Singh v. State of Rajasthan (1965) the Supreme Court confirmed Parliament’s power to modify Fundamental Rights under Article 368.
In I.C. Golak Nath v. State of Punjab (1967), however, an eleven-judge Bench had ruled that the Parliament could not amend or abridge the Fundamental Rights as the amendment of the constitution itself was subject to Article 13. The judgment seriously curtailed Parliament’s role as a constituent of the people and led to a legislative response.
The twenty-fourth amendment of the Constitution was passed by Parliament in 1971 to guarantee its authority to amend any of the provisions of the Constitution under article 368. This was followed by the Twenty-Fifth Constitutional Amendment Act, 1971, which aimed to provide enhanced protection to the laws enacted in implementation of some of the Directive Principles and the Twenty-Ninth Constitutional Amendment Act, 1972, which put two land reform laws of the state of Kerala in the Ninth Schedule.
The developments turned a conflict about land reforms into a constitutional war about the scope of Parliament’s amending power.
Facts of the case
In 1970, Kesavananda Bharati, the head of the Edneer Mutt in Kasaragod, Kerala, filed a writ petition under the Constitution’s Article 32 against some of the provisions of the Kerala Land Reforms Act, 1963 (KLRA).
The petitioner argued that the law impinged on his right to possess the Mutt under Article 14, his freedom of speech and expression as provided in Article 19(1)(f), his fundamental right to life under Article 25 and his right to personal liberty under Article 26 of the Constitution, in addition to his right to property guaranteed by Article 31. Parliament passed the Twenty-Fourth, Twenty-Fifth and the Twenty-Ninth Constitutional Amendments during the pendency of the petition which directly affected the constitutional issues before the Court.
To face the issue of the extent of the constituent power of the Parliament as enshrined in Article 368 of the Indian Constitution, Chief Justice S. M. Sikri established a Constitution Bench of thirteen judges that came to be known as the largest in the history of the Supreme Court of India. The hearing began on 31 October 1972 and ended 68 working days later. On 24 April 1973, the Court rendered one of the most important decisions in the history of Indian constitutional system, the Basic Structure Doctrine, which is a doctrine which continues to mould constitutional governance today in India.
Issues Before the Court and the Constitutional Contest
The real significance of Kesavananda Bharati is the broad constitutional issues raised during the trial before the Supreme Court. The Supreme Court was tasked to establish the meaning of the constituent power of Parliament as guaranteed in the Constitution and its relationship with the supremacy of the Constitution.
The questions to be decided by the thirteen-judge Bench were:
• Whether the Parliament has the unlimited power to amend all of the provisions of the Constitution including Fundamental Rights under article 368.
• Whether the Constitution (Twenty-Fourth Amendment) Act 1971 was a proper enlargement of the amending power of Parliament.
• Whether the Constitution (Twenty-Fifth Amendment) Act, 1971, which guarantees security of laws based on Article 39(b) and 39(c) of the Constitution was constitutional.
• Whether the Constitution (Twenty-Ninth Amendment) Act, 1972, by putting two land reform statutes of Kerala under the Ninth Schedule, removed them from the judicial purview.
• Most importantly, did there exist any limitations to Parliament’s powers to amend the Constitution?
The petitioner, who was represented by the great constitutional lawyer Nani A. Palkhivala, contended that the Constitution was not a regular statute, but was rather the source of Parliament’s powers. Parliament was a product of the Constitution, and therefore it had no unlimited power to change its essential nature. He argued that Article 368 provided for a procedure for amendment of the Constitution and was not intended to give Parliament the authority to destroy the fundamental framework of the Constitution. Amendment was allowed but could not take away democracy, judicial review, federalism, secularism or Fundamental Rights, or change the constitutional order in its very nature.
For the Union of India, the Attorney General Niren De and the Solicitor General L. N. Sinha argued that Parliament had the power to amend the Constitution. They claimed that the term “amendment” in Article 368 encompassed the power to amend any of the provisions of the Constitution as a whole. Parliament, as the voice of the people, could do no more than what was expressed, the argument went: no more or less.
The hearings began on 31 October 1972 and lasted for 68 working days—the longest since the beginning of the Supreme Court’s history. It was argued before a Constitution Bench on which Justice Sikri, Chairman, Justice J. M. Shelat, Justice K. S. Hegde, Justice A. N. Grover, Justice A. N. Ray, Justice P. Jaganmohan Reddy, Justice D. G. Palekar, Justice H. R. Khanna, Justice K. K. Mathew, Justice M. H. Beg, Justice S. N. Dwivedi, Justice A. K. Mukherjee and Justice Y. V. Chandrachud were sitting.
The Supreme Court gave its historic verdict on 24 April 1973 by a narrow majority of 7:6. The Court in this case struck down the doctrine of absolute restriction laid down in the case of Golak Nath and declared that the Parliament has the power to amend any provision of the Constitution including Fundamental Rights. At the same time it affirmed that this power was not unlimited. Parliament cannot change, destroy or mar the **Basic Structure** or essential features of the Constitution. The Constitution was therefore flexible and could develop and change, but it was not subject to constitutional amendment.
Constitutional Legacy and Critical Analysis
The greatest legacy of Kesavananda Bharati was the development of the Basic Structure Doctrine. Interestingly, the Court did not attempt to draw up a comprehensive list of the elements of the Basic Structure. Rather, other judges recognized other core characteristics such as the supremacy of the Constitution, the federal and democratic system of government, the separation of powers, judicial review, the rule of law, and secularism. This has allowed the doctrine to develop in later constitutional decisions without being restricted to a fixed list.
The actual genius of the judgment is the constitutional balance that it struck. The Court did not accept Parliament’s assertion of unlimited amending power, nor was it denying Parliament the power to amend the Constitution. Rather, it acknowledged that constitutional change is key in a living democracy but that this change cannot be the destruction of the constitution. In so doing, the Court upheld democracy and constitutional supremacy.
The doctrine was then restated and expanded upon in a few seminal cases. The Supreme Court in the case of Indira Nehru Gandhi v. Raj Narain (1975) struck down an amendment to the Constitution that was designed to deny the judiciary the power to review the election of the Prime Minister. In Minerva Mills Ltd. v. Union of India (1980), the Court again affirmed that the power to amend has also become a part of the constitution’s Basic Structure and stressed the correlation between Fundamental Rights and the Directive Principles of State Policy. In subsequent cases, such as Waman Rao v. Union of India (1981) and I.R. Coelho v. State of Tamil Nadu (2007), the Court stated that laws enacted after 24 April 1973 are also subject to judicial review if they injure the basic structure.
The judgment has been criticised from time-to-time on the why-the-Basic-Structure-Doctrine was never recorded in the Constitution is written. The doctrine is criticized for giving too much judicial power in interpreting the Constitution. But its champions argue that the doctrine is essential to constitutionalism, as it ensures that any temporary parliamentary majority does not have the legal means to undermine democracy itself. If there were no real constitutional restrictions on the extent to which the power to alter could be used to destroy constitutional government.
Kesavananda Bharati is still the fundamental law of the land in India after more than five decades. It is a reminder that the Constitution is not just a legal document, but the highest manifestation of the country’s constitutional identity. Governments and political philosophies are changing and amendments to the Constitution are being made. The promise of liberty, democracy, equality, secularism, federalism, judicial review, and the rule of law, however, remain protected: The Constitution enshrines its own underlying principles against the power of ordinary politics.
Conclusion
The impact of Kesavananda Bharati has gone beyond the mere recognition of the power of Parliament to amend the Constitution; it is the principle of constitutional responsibility that every constitutional power has its own implicit constitutional responsibility. The Supreme Court has upheld the essential nature of the Constitution and facilitated a democratic change in its form, meaning that India’s constitutional destiny would be subjected to the rule of law and not to unchecked power. This is why Kesavananda Bharati is not only a landmark judgment but a landmark decision that saved the soul of the Indian Constitution.
