Kesavananda Bharati v. State of Kerala Case Analysis (Basic Structure)

Kesavananda Bharati v. State of Kerala Case Analysis (Basic Structure)

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Full case name: Kesavananda Bharati Sripadgalvaru and Ors. Vs. State of Kerala and Anr.

Citation : (1973) 4 SCC 225: AIR 1973 SC 1461

Bench : CJI S.M.Sikri , J.M.Shelat, K.S Hegade, A.N.Grover, A.N.Ray, P.Jaganmohan Reddy, D.G.Palekar, H.R. Khanna, K.K.Matthew, M.H.Beg, S.N.Dwivedi, A.K.Mukherjea and Y.V.Chandrachud.

Majority : CJI Sikri and Justice Hegde and Mukherjea, Shelat and Grover, Jaganmohan Reddy and Khanna

Dissent:  Justice Ray, Palekar, Mathew, Beg, Dwivedi and Chandrachud.

The Kesavananda Bharati popularly known as Fundamental Rights Case is one of the most important landmark judgements passed by the Supreme Court of India. The case has been considered as an epic in the judicial history of India. This case involved 6 different writ petitions coupled up and heard under the name of  “His Holiness Kesavananda Bharati Sripadagalvaru and other v. State of Kerala”. The case was heard by the 13 judges constitution bench which is the largest so far and the judgement was passed in a ratio of 7:6 with 11 separate judgements. The judgement is 703 pages long and has involved views of some 93 dignified legal luminaries including the then Chief Justice of the Supreme Court S.M Sikri and lawyers like N.A Palkhiwala. A 68 days long hearing which ended with saving the ideal of democracy. And all of these characteristics make it grand and ostentatious. 

The case resulted in the establishment of the “Basic Structure Doctrine” a concept which believed in the existence of certain basic principles, which are part of the basic framework to every constitution and are something which are supposed to be kept sacrosanct and cannot be destroyed and changed.

Background 

The background of this case is not built in a day or week or months but it has been a result of consistent conflicts which had been running in the system between the parliament and the judiciary over the years. This all started with the Supreme Court’s ruling in the Golaknath Case and some other subsequent cases where the Supreme Court tried to uphold the sanctity of the Fundamental Rights and made them unamendable.

These steps of the Supreme Court, though progressive and meant for the protection of the Constitution had enraged the government and in order to make parliament more powerful in amending and dealing with the matter concerning Fundamental Rights, four amendments were passed which restricted the Supreme Court’s power of Judicial Review at the same time granting absolute power to the Parliament.

While this discord was going on, a petition was filed into Supreme Court challenging the Land Reforms Act of Kerala Government. This petition was filed by one Swami Keshavananda Bharati Sripad was the chief of a religious sect in Kerala. This sect had a lot of acquired land . Some of this was acquired by State Government under the power of Kerala Land Reforms Act, 2019 to fulfill social and economic objectives. For the redressal of this grievance on 21st March 1970 the petitioner moved to the Supreme Court. 

Before moving any further, and discussing in detail the issues involved we need to know two Articles of the Constitution which are very important in the context of this topic:

ARTICLE 13                                                                                                                                         

Article 13 talks about all the laws which are in derogation or are inconsistent with the Fundamental Rights of the citizens are to that extent void.

ARTICLE 368 

Article 368talks about the amendment procedure and powers of the constitution of India.

Golaknath v. State Of Punjab (1967 AIR 1643)

As we read that the background for Kesavananda was laid down since the judgement of Golaknath and then various subsequent judgements and amendments played a great role behind the reasoning of this case. So let’s start with understanding all of them in a timeline and begin with analysing Golaknath judgement.

The Apex court bench of 11 judges in Golaknath gave out a ruling in which it stated that the Parliament has no power to amend fundamental rights. The ruling was in a 6:5.  The majority opinion of Golaknath stated a heavy resentment and scepticism over the Parliament’s steps which it had been taking since a decade through invoking Article 368. Parliament by invoking this very article had passed several judgements affecting the basic nature of the constitution and violating the Fundamental Rights. In 1964, in Sajjan Singh’s ruling SC had declared the Right of Parliament to amend the Fundamental Rights of the Constitution. In Golaknath the Supreme Court resided to overrule this judgement.

The reasoning which Supreme Court asserted was:

  1. According to the majority, the impugned Article 368 through which the parliament was drawing power to amend the Constitution in fact merely laid down the procedure of amending the constitution. The majority relied on the Marginal note of the earlier Article 368 to arrive at this conclusion.
  2. The majority located the power to amend the constitution in Article 248 of the Constitution which provides for the Residuary power of Parliament. Since the product of Article 248 is law, therefore, in the majority’s opinion Amendment of Constitution is “law” for the purposes of article 13(2) of the Constitution.
  3. The absence of the  word “amendment” in the definition of “law” was answered by the majority in the form that the definition under Article 13(3)(a) is not exhaustive, rather it is inclusive.

In this case the delivered judgement stated that the power to amend constitution come from provisions like 245, 246 and 248 (Articles which gave parliament power to make laws) and not from Article 368(which only specifies the procedure). Thus declaring legislative power and amending powers same. Hence, in this way under Article 13, there are limitations on the legislative powers and these are applicable to the amendments also which introduce changes in the law.

Mainly  in order to create a sense of fear in the mind of the government and to make them realise that judiciary as an apex body is existing here in the system to act as the protector and guardian of fundamental rights this judgement was passed but the judgement had certain drawbacks too. These are: 

  • Rigidity in the constitution by declaring fundamental rights unamendable.
  • Did not consider that there might be some other provisions of the constitution which also forms the basis of democratic spirit.
  • Did not describe the meaning of the word Amendment.
  • Does article 13 also includes amendment as described in article 368?

(All these issues were later on dealt in kesavananda which we will discuss later.)

Golaknath judgement marked the beginning of a disagreement between the Parliament and the judiciary. In this chronology two other major judgements of the Supreme Court also came which increased this dissent between the government and the Supreme Court. Those two important judgements are:

  1. Bank Nationalization case
  2. Privy Purses Case

Rustom Cavasjee Cooper v. Union Of India, 1970 AIR 564 (Bank Nationalisation case)

The Supreme court under this judgement opined that the constitution provides for the payment of fair compensation that is equivalent to the value of the property acquired by the government and SC also held that any law which seeks to acquire property for public purposes should satisfy the requirement of Article 19(1)(f). This judgement declared the Banking Companies (Acquisition and Transfer of Undertaking) Act invalid and said that the principles fixed under this act for the determination of the compensation is irrelevant and violated the Fundamental Rights conferred under article 31(2).

H. H. Maharajadhiraja Madhav Rao vs Union Of India (Privy Purse case)

What is a Privy purse?

A privy purse was the payment made by the government to the royal and ruling families of erstwhile princely states because they agreed to integrate with India in 1947 and later they merged their states in 1949 with India and lost their all ruling rights. Under this case the Supreme court declared the President’s order to derecognize the princes and rulers and taking away their privileges as violative of their Fundamental Rights under Article 19, 21 and 31. As a result SC strike down the President’s order under article 32 and issued the Writ of Mandamus. So, till now we understood that after the awakening of the Supreme Court in the Golaknath case there were several other judgements passed by the Supreme Court which protected the Fundamental Rights and anything violative of them was considered against the basic ideals and was declared unconstitutional. This exercise of power by Supreme Court enraged the then Indira Gandhi government. The government believed this as an obstacle and threat to its policy of socialism and economic development. As a result, on the orders of then Mrs. Indira Gandhi then President V V Giri dissolved the Lok Sabha and re-elections were held in March 1971 in which power of parliament to amend was an important electoral issue. Indira Gandhi emerged victorious again with a thumping majority of 352 seats in the Lok Sabha. As soon as her return, the government decided to pass four important amendments namely, 24th, 25th, 26th and 29th amendment acts to reassert parliament’s supremacy and nullify the impacts created by the Supreme Court through its progressive rulings.

These amendments have quite a relationship with the kesavananda ruling. As all of these amendments were challenged in the Court of Law under this petition.

Before moving further let’s discuss in brief what these amendments were all about.

Important Amendments relevant to the case

24th Constitutional Amendment Act, 1971

To get over with the Supreme Court’s judgement in Golaknath, this amendment was passed. The amendment made changes in article 13 and article 368 of the constitution.

  1. This article restored the parliamentary power to amend any part of the constitution including Fundamental Rights.
  2. Article 13(4) and article 368(3) were inserted . Article 13(4) states that “Nothing in this article shall apply to any amendment of this Constitution made under Article 368. And article 368(3) states that “ Nothing in article 13 shall apply to any amendment made under this article”.
  3. Marginal heading of Article 368 was amended and changed to “power of parliament to amend the constitution and procedure thereof” from “ procedure for amendment to the constitution”.
  4. Also it was made compulsory for the president to give his assent to any such bill.

25th Constitutional Amendment Act, 1971

The  Supreme Court in Bank Nationalization case held that the Constitution guarantees the right to compensation in case of any property is acquired and the said compensation is equivalent to the amount of the property. Along with this Court also stated that a law seeking to acquire or requisite property for public purposes must satisfy the requirement of Article19(1)(f). 

This ruling of the Supreme Court created certain boundations on the government and to overcome this parliament came up with 25th constitutional amendment act.

The amendment provides for the precedence of certain DPSP namely, Article 39(B) and (C) over  Article 14, 19 and 31 of Fundamental Rights in the name of economical democracy and social welfare. It led to the insertion of a new Article 31(C), clause 31(2(a)) got substituted and insertion of clause 2(b). This new amendment curtailed the right to 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. Also the amendment through article 31(c) also weakens the power of court to judicially review any such matter concerned.

26th Constitutional Amendment Act, 1971

This amendment provided for the abolition of the recognition given to the formal rulers of princely states and also the abolition of the privy purses granted to them. There was deletion of Article 291 and 362 of the constitution. There was also an insertion of new Article 363A which provided for the abolishment of privy purses.

29th Constitutional Amendment Act, 1972

Under this amendment, the parliament was concerned with the Kerala Land Reforms Act, 1963. By this amendment the Kerala Reform Act was added to the 9th schedule of the Constitution making it immune and powerful.

All of these amendments were a way by which parliament tried to showcase its superiority over the Judiciary. These amendments were arbitrary and overpowering in nature. There was a tension in the judicial system that if these were to be the law of the land then the spirit of democracy and freedom is under great threat.

Kesavananda Bharati Case Ruling

We have till now read all the important precedents in chronology which formed a great part in influencing the ruling of Kesavananda Bharati. Now let’s understand Kesavananda’s ruling exhaustively.

The government of India was highly aggrieved with the progressive rulings passed by the Supreme Court over a period a time as it was limiting its powers to a large extent. So there was a situation of conflict running. Meanwhile when all of this conflict was going on in the system the State government of Kerala passed the Kerala Land Reforms Act in 1969 which imposed restrictions on the church property. Aggrieved by this, a writ petition was filed in Supreme Court challenging the reform act  under section 32 for the enforcement of rights under Article 25(Right to practice and propagate religion), Article 26(Right to manage religious affairs), Article 14(Right to equality), Article 19(1)(f) (Freedom to acquire property), Article 31(Compulsory Acquisition of property) of the Constitution of India.  While this writ was pending the parliament enacted 29th amendment act, which placed the Kerala Land Reform Act under the 9th Schedule of the constitution making it immune and more powerful. Also till that time 24th, 25th, 26th amendment act had also been enacted which posed a great threat to the Fundamental Rights. It was believed by the petitioner that in order to gain momentum in the case there is a need to challenge the constitutionality of all of these amendments also because in one way or another, all of these are violating the fundamental and basic principles of the constitution. So under this petition applications were filed challenging these amendments. There  were 6 petitions filed under the ambit of this case asking only one question that whether these amendments are valid or not?

Arguments in the case

All of  the arguments were circulating around the powers of  Article 368. The major issues were:

  • Whether these amendments are valid or not?
  • Does this article 368 gives enough power to the Parliament to amend the fundamental Rights more specifically basic principles of the constitution?

In the arguments of the petitioner it was argued that parliament has no power to emasculate with the  basic structure of the constitution and Fundamental Rights form a part of it. N.A. Palkhiwala appearing from petitioner’s side argued that “no one contended that the constitution could not be amended, only that a creature of the constitution cannot increase its own constituent power nor can it arrogate to itself the power to destroy the constitution’s essential features – such as the institutions like Supreme Court”.  

On the other hand respondents argument was based on the principle of Supremacy of Parliament as a representative body. The state argued that there is a need of immense and unlimited power for the parliament to fulfill its socio economic objectives. Also, the concept of basic structure on which petitioner is basing their arguments is very dicey and it is possible to manipulate and hold most of the constitution as basic structure in one way or another resulting in the rigidity of the constitution.

Thus keeping the arguments of both the side into consideration Supreme Court came up with a balanced judgement. The judgement of the majority in the case is as follows:

  • The Golaknath ruling is overruled
  • Article 368 has substantial amending power so that constitution remains updated as per the need of the era but basic structure and principles of the constitution are untouchable.
  • 24th constitutional amendment act is valid , hence giving power to parliament that Fundamental Rights can be amended.
  • 25th constitutional amendment act is valid accept the second part of the Article 31 C which stated that “no law containing a declaration that it is for giving effect to such policy shall be questioned in any court of law on the ground that it does not give effect to such policy”
  • 26th constitutional amendment act was also declared valid.
  • 29th constitutional amendment act is valid.

Judgment

The judgement of Kesavananda answered all the other doubts which had arisen in Golaknath. It declared Fundamental Rights as amendable under Article 368 and by validating 24th constitutional amendment act it accepted that this article contains both power and procedure to amend the constitution of this article. It also made it clear that amendment in Article 368 and law in Article 13 are not the same. There is a clear distinction between the two and Parliament has authority to make constitutional amendments under its constituent authority which is far wider than its legislative power.  The case also solved the predicament over Right to Property and declared that it does not form the part of Basic Structure of the constitution, hence it can be amended and 25th and 29th constitutional amendments are valid too.

The Supreme Court shrewdly dealt with the major issue of the power of Article 368 of the constitution and side by side also considered all the other important elements contended. The SC through its judgement by overruling Golaknath provided wide amending powers but at the same time recognized and propounded the concept of “BASIC STRUCTURE DOCTRINE”. Supreme court also answered that the word “amend” is not absolute and in order for it to be constitutionally valid and acceptable it has to pass the test of basic structure.

This principle in basic terms states that the constitution of India has certain basic features which cannot be altered, destroyed or removed by the parliament through its amendments. The basic structure of doctrine, though acts as the essence of protection of the constitution but as a concept in itself it is nowhere defined.Though the concept of basic structure is propounded by Kesavananda and has got prominence since then but this is not the case from which the idea of Basic Structure Doctrine emerged. The term Basic Structure doctrine was first seen in Sajjan Singh case where Justice Mudholkar who was in dissent laid down this principle in his judgement. He stated that our makers of the constitution with proper deliberation had come up with a constitution with liberal principles and a preamble which is the epitome of constitution. These all form a basic part of the constitution which is not meant to be altered. Hence nothing can be allowed to interfere with it. So there is a need of creation of a doctrine which defines the basic structure of the constitution. After Sajjan Singh’s ruling there was a mention of this in the Golaknath also but was not exhaustively discussed. And it was in Kesavananda that this term was first used and then over the years in subsequent judgements its concept developed and now there is an exhaustive list of certain basic principles which come under this doctrine. Some of them are : 

  • Supremacy of the constitution
  • Sovereignty 
  • Integrity of the country
  • Democratic life
  • Secularity
  • Guarantee of basic Human Rights
  • Parliamentary form of government
  • The federal structure of the constitution
  • Balance between the legislature, executive and judiciary and many more.

This concept is something which is considered holy to the constitution of India and has proved its relevance in decision making from time to time.

Conclusion

In conclusion after the understanding of all the intricacies attached to this case we can say that the judgement of this case was a very forward move in the Indian Judiciary.The judgement contributed a lot  in the field of constitutional studies and jurisprudence.  It resulted in solving a number of conflicts and gave us a direction towards progress but most important of all it gave us the concept of Basic Structure of Doctrine which has now become the guardian for entire constitution. It ended the debate which was running  between the Judiciary and the Parliament over a long period of time and has resulted in restoring the faith of people in the judiciary again. 

Endnotes

1.  https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2013

2.  https://www.constitutionofindia.net/constitution_of_india/amendment_of_the_constitution/articles/Article%20368

3.  Golaknath v. State of Punjab, 1967 A.I.R. 1643, 1967 S.C.R. (2) 762

4.  Sajjan Singh v. State of Rajasthan, 1965 A.I.R. 845, 1965 S.C.R. (1) 933

5.   http://lawtimesjournal.in/i-c-golaknath-ors-vs-state-of-punjab-anrs-case-summary

6.  Rustom Cavasjee Cooper v. Union Of India (1970 AIR 564, 1970 SCR (3) 530)

7.  Maharajadhiraj Madhavrao Scindia vs. Union of India1971 AIR 530, 1971 SCR (3) 9

8.   http://legislative.gov.in/constitution-twenty-fourth-amendment-act-1971


Pragya Dixit

Pragya Dixit

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Pragya has incredible writing and research skills and you will never miss a flow in her writings. Her favourite leisure activity is singing and theatrics. She is also a poetess and a very humble person. In other words, she is as bright as a new penny. For any clarifications, feedback, and advice, you can reach us at editor@lawcirca.com

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