Case Comments: Kesavananda Bharati V. State of Kerala

Background:

The case of Kesavananda Bharati v. State of Kerala[1], better known as the case in which the basic structure doctrine was formulated, is the most well-known and Landmark constitutional decision of the Supreme Court of India. In this case, the Supreme Court ruled that while the powers of Parliament to amend the Constitution are unlimited, but the Parliament is not empowered to amend the basic structure of the Constitution of India. Further, the Supreme Court reaffirmed the supremacy of the Supreme Court in the constitutional matters.

The Kesavananda Bharati Case is the result of an entire lineage of constitutional cases, and tussle between the Parliament and the Judiciary for supremacy.

The building blocks of the formation of the Basic Structure doctrine propounded in the Kesavananda Bharati was gradually started with Shankari Prasad v. Union of India[2] in which the 1st Amendment of the Constitution was challenged that sought to abridge the right to property, the Supreme Court held that fundamental rights were not beyond the amending power of the Parliament. Again, in Singh v. Rajasthan[3], the 17th Constitutional Amendment was challenged; the Supreme Court by majority rejected the contentions that the amendments which are violative of fundamental rights are unconstitutional, two judges dissented from this view, and therefore another challenge was brought to the 11 judges’ strong bench of the Supreme Court in 1967 in Golaknath v. State of Punjab[4], the Supreme Court overruled its previous judgments by a majority of 6:5 and held that Parliament is not empowered to amend the Part III (Fundamental Rights) of the Constitution, as the amendment act shall be deemed to be law under Article 13, and therefore an amendment act cannot abridge the Fundamental Rights. It is pertinent that the Golaknath decision was prospective in operation and did not invalidate the amendments made prior to it, but the judgment did prove to be opening strike of the tussle between the Judiciary and the legislature.[5]

The Judgement in Kesavananda Bharati is considered to play a pivotal role in the preservation of democracy in India. The judgment was voluminous, extending to over 800 pages, and dealt with the question of power of Parliament in constitutional amendments in considerable detail, but because of the wideness of scope and functional contingencies of the doctrine, the judges could not exhaustively deal with it and left many perspectives for the judges of the posterity to interpret and decide.

The most probing question that was left undecided was the “Basic Structure” of the constitution. Ironically the case dealt with the “Basic Structure” doctrine, but the basic structure is not clearly defined anywhere in the Judgment, which is believed to be a prudent course of action to define the doctrine, only illustratively to keep it open for application in peculiar contingencies. The definition can only be understood on vague and ambiguous terms by taking into account the quotes by different justices adjudicating the issue, some are of the view that secularism and fundamental rights are of great importance in deciding the Basic Structure while other judges emphasized on sovereignty and integrity of the nation, and even further some other judges was in the favour of absolute power of the parliament in the matters of amendment of the constitution[6].

It must be noted that the case has overruled the Golak Nath v. State of Punjab[7] in theory, but left the issue open for judicial adjudication on the question that any amendment to a fundamental right can be deemed to be an amendment to the basic structure. After the hearing of 60 days, eleven different judgments were pronounced, along with Chief Justice Sikri’s controversial “View by the Majority”, instrumental in creating confusion over the ratio of the case, which continues till date.[8]

The Indian Government had passed several Constitutional amendments to nullify the decisions curtailing the amending power of the Parliament:

·         The 24th Amendment of the Constitution Amendment Act, 1971 introduced clause (4) in Article 13, protecting Article 368 from the action of Article 13. Adding “(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368”. 

·         Clauses (1) and (3) were also added to Article 368, to both restrict the scope of Article 13, and to provide the distinction between the amending power of Parliament and its legislative power.

·         The Constitution (25th Amendment) Act, 1971 modified Article 31 of the Constitution, expanding the power of the Government to acquire private property and permitted the acquisition of private property by the government for public use, on the payment of compensation which would be determined by the Parliament and not the courts. The amendment also exempted any law giving effect to the article 39(b) and (c) of Directive Principles of State Policy from judicial review, even if it violated the Fundamental Rights.

·         And with the Constitution (26th Amendment) Act, 1971, Parliament nullified the decision of the Supreme Court in the Privy Purses case. by which all their privileges and allowances from the Central Government ceased to exist, and was implemented after a two-year legal battle.[9]

 

The Kesavananda Bharati Case:

The Kesavananda Bharati Case was heard by clubbing together six different writ petitions by affected people and entities seeking to preserve their legal rights, which existed prior to the 24th, 25th, 26th, and 29th amendments.[10] The most prominent question in the writ petitions was the legislative restrictions on the power of Parliament to amend the Constitution, especially part III (fundamental rights), as was decided in the Golak Nath case.

His Holiness Kesavananda Bharati Sripadagalvaru, the president of a math, challenged the Constitution (29th Amendment) Act, 1972, placing the Kerala Land Reforms Act, 1963 and its amending Act into the IXth Schedule of the Constitution, which provided for unbridled enforcement and protected it from judicial review.[11] First time in the judicial history of India, a constitutional bench of 13 senior-most judges was constituted to hear the matter. And finally by a majority of 7:6, the bench upheld that the Parliamentary power to amend the Constitution was not expressly limited, but the Parliament is not empowered to alter or modify the basic structure of the Constitution. The hearings of Kesavananda Bharati culminated in 11 different judgements delivered verbally by the judges.

The Supreme Court upheld the Land Reform Acts and the Amendment Acts that had been the bone of contention and the sole provision that was deemed unconstitutional was the section of the Constitution (25th Amendment) Act, which barred judicial review. Apart from the evolution of the basic structure doctrine, the Government succeeded in extracting a favorable judgment.[12]

 

Attempt to reinstate the Prior Legal Position and the Political Consequences:

The Government acted to reinstate the legal position prior to the Kesavananda Bharati and elevated Justice A.N. Ray to the office of Chief Justice by defying the convention of seniority as there were three other judges, who were senior to Justice A. N Ray, at the time of the appointment. New judicial appointments were also made.  An attempt was made in 1993, to review the judgment in Kesavananda Bharati by constituting a bench of 13 judges, of whom 8 were new judges.

But the hearing could not proceed with the review of the case as Chief Justice A.N. Ray unilaterally dissolved the bench as it was discovered that the review process was improper as no review petition had been filed and the review had been initiated over an oral request.

 

“Basic Structure”:

The Judgement in Kesavananda Bharati did not lay down any clear definition of the “Basic Structure” and what constituted the “basic structure” of the constitution and/or why Parliament’s power to amend it was limited. It was held that the inherent limitation on the amending power of the Parliament flows from the higher principles of jurisprudence, such as the republican and democratic form of Government, separation of powers, supremacy of the Constitution, secular and federal character of the Constitution.[13]

The justices provided different interpretations of the “Basic Structure” and the principles underlying the restrictions on the amending powers of the constitution. In their common judgment, Justices Shelat and Justice Grover, concentrated on individual dignity, and unity and integrity of the nation, as the basic elements of the Constitution. Some other judges held the view that the power of Parliament to amend, though wide, did not include the power to destroy or emasculate basic elements of the Constitution, which are determinable from the Preamble.[14]

Justice Khanna held that the amending power of the parliament is restricted only to the broad outlines of the Constitution and not any specific article or detail of the Constitution, he rejected the idea that preamble or fundamental rights could not be amended and asserted that the only limitation to amend is the word “amend” itself, as the word “amend” itself implies the continuation of some basic structure which is not liable to abrogated. Judges also held that the essential elements of the Constitution, such as the sovereign democratic republican nature of the Constitution, social, economic and political justice, liberty of thought, expression, belief, faith and worship, and the equality of status and opportunity could not be amended.[15]

One of the main point of difference between the judges in majority related to the constitutional validity of the amended Article 31C.[16]

It is pertinent to note here that the “View by the Majority” did not reconcile these distinctions, and the legal basis for the “View by the Majority” is also questionable as it does not form part of any judgment and 4 out of 13 judges had not signed on it in protest. However, the process of reconciling the definition of “basic structure” started only after Indira Gandhi v. Raj Narain[17].

 

Basic Structure Doctrine and its Consolidation:

Following are the few instances on which the legislative actions of the state were struck down on the basis of the ratio in Kesavananda Bharati:

·         In Indira Gandhi v. Raj Narain[18] a Constitutional amendment to validate the election of Prime Minister Indira Gandhi was struck down citing the basic features of democracy, rule of law and equality.

·         In Minerva Mills v. Union of India[19], the Parliament attempted to bypass the judgement in Kesavananda Bharati by passing the 42nd amendment of the Constitution in 1976. However, The Court invalidated the amendment on the principles that judicial review and  limitation on the power of Parliament are the basic tenets of the Basic Structure.

·         In I. Coelho v State of Tamil Nadu[20], the Supreme Court held that all laws were subject to the test of being consistent with fundamental rights, which are a part of the basic structure.

 

Conclusion:

The debatable characteristics of the limitations of the legislative powers to amend a Constitution are not new. And rigidity is one of the major challenges which are faced by the legislative bodies of states which have written constitutions. However, the constitution must confirm to the principles of functional efficiency and aspirations of the new generations. Therefore, a legislative process should mitigate the differences between pious ideas enshrined in the Constitution and the functional challenges posed by the evolution of different areas of human endeavors.[21] The idea of protection of discretion of the future generation as to the right of self-determination is duly endorsed by Justices Hegde and Mukherjea. However, the doctrine of “Basic Structure” is subjected to contradictory opinions on the issues of the applicability of the values in the era of absolute socialism on the future generations.



[1] Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.

[2] AIR 1951 SC 458.

[3] AIR 1965 SC 845.

[4] AIR 1967 SC 1643.

[5] Austin (1999, 198).

[6] Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, ¶867.

[7] I.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643.

[8] Journal of the Indian Law Institute Vol. 49, No. 3 (July-September 2007), pp. 365-398

[9] “Twenty Sixth Amendment”. Indiacode.nic.in. 28 December 1971. Retrieved 19 November 2011.

[10] Ronojoy Sen (2009) Walking a Tightrope: Judicial Activism and Indian Democracy, India Review, 8:1, 63-80

[11] Supra

 

[12] South Asian Studies A Research Journal of South Asian Studies Vol. 26, No. 2, July-December 2011, pp. 299-309

[13] Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461

[14] Lloyd I. Rudolph & Susanne Hoeber Rudolph (1981) Judicial review versus parliamentary sovereignty: The struggle over stateness in India, Journal of Commonwealth & Comparative Politics, 19:3, 231-256

[15] Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.

[16] 5 of the majority judges held that the entirety of Article 31C, which was added by the 25th Amendment, was void. Justice Reddy held the Article to be valid by separating its components, and Justice Khanna was the sole judge hold that the second part of Article 31C was void, while the first part was valid.

[17] Indira Gandhi v. Raj Narain, AIR 1975 SC 2299.

[18] Supra

[19] Minerva Mills v. Union of India, AIR 1981 SC 271.

[20] AIR 2007 SC 861.

[21] Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, ¶867.

 

 

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