The Indian legal fraternity recently mourned the passing of Kesavananda Bharati, the lead petitioner in the historic 1973 Kesavananda Bharati Sripadagalvaru and Ors v State of Kerala case. This case is recognized for bringing forth the basic structure doctrine of the Supreme Court.
Kesavananda Bharati and His Challenge
In 1970, Kesavananda Bharati challenged the Kerala land reforms legislation which imposed rules on the management of religious property. This challenge was raised under Article 26 of the Indian constitution, which gives rights to manage religiously-owned property without government interference. The hearing of this case was conducted by a 13-judge Bench, the largest to be set up by the Supreme Court. A central question posed during this case was if the Parliament had unlimited powers to amend the Constitution, including altering or abrogating any part of it even to the extent of removing all fundamental rights.
The Backdrop: Previous Verdicts and Implications
The Supreme Court had previously given unfettered power to the Parliament for constitutional amendments as seen in the Shankari Prasad case (1951) and Sajjan Singh case (1965). In both cases, it was ruled that the term “law” in Article 13 referred to regulations made through ordinary legislative powers, not to changes to the Constitution via Article 368. Thus, the Parliament had the right to modify any part of the Constitution, including Fundamental rights. This view was later disagreed with in the Golaknath case (1967), where the Supreme Court stated that the Parliament did not have the right to amend Fundamental Rights and only a Constituent Assembly could do so.
Significant Constitutional Amendments
To dis-effect the judgments of the Supreme Court in the Golaknath case, the then government enacted significant changes to the Constitution. These included the 24th Constitutional (Amendment) Act, 1971 where the Parliament gave itself the power to amend any part of the Constitution, and the 25th Constitutional (Amendment) Act, 1972 where the right to property was removed as a fundamental right.
The Verdict in the Kesavananda Bharati Case
The landmark judgement on the Kesavananda Bharati case was delivered on April 24, 1973, by a close majority of 7:6. The ruling stated that the Parliament could amend any provision of the Indian Constitution only if such an amendment did not change its basic structure. However, the dissenting judges were cautious about granting unlimited amending powers to the Parliament.
The Doctrine of the Basic Structure
The idea of a constitution’s basic structure originated from the German Constitution, which after the Nazi regime, amended certain parts of its Constitution considered ‘basic law’. In India, this principle forms the foundation for judicial review of all laws passed by Parliament – no law can violate the basic structure. The exact definition of what constitutes the basic structure is still under discussion with parliamentary democracy, fundamental rights, judicial review, and secularism being commonly accepted elements.
Implications of the Judgement
The judgement led to a significant confrontation between the judiciary and the executive, with the government choosing to ignore the court’s opinion and superseding three judges. Within less than two years following the reestablishment of Parliament’s nearly absolute amending powers, the Forty-second amendment was challenged before the Supreme Court in the Minerva Mills case. The basic structure doctrine was reaffirmed in this case as well as the subsequent Waman Rao case in 1981.
Last Modified: February 9, 2024