Title of the Case: Kesavanad Bharti v. State of Kerala
Citation – AIR 1973 SC 1461
Kesavananda Bharati Sripadagalvaru and Ors and State of Kerala and Anr
Sikri, S.M. (Cj) Shelat, J.M., Hegde, K.S. & Grover, A.N., Ray, A.N. & Reddy, P.J. & Palekar, D.G., Khanna, Hans Raj Mathew, K.K. & Beg, M.H., Dwivedi, S.N. Mukherjea, B.K. Chandrachud, Y.V.
The Kesavananda Bharti judgement was a result of various events, these events can be called as ‘backdrop’ of the same. To understand the judgement, the ‘backdrop’ or the course prior to Kesavananda should be acquainted with. The Indian Constitution as much as carefully designed, is important to note – it has been more than 70 years to the birth of this document and hence like every other thing in this world, it is ‘aging’. Prime Minister Jawaharlal Nehru wrote to his chief ministers in early 1951, “It is impossible to hand up urgent social changes because the Constitution comes in the way,We shall have to find a remedy, even though this might involve a change in the Constitution.” And this marked the beginning of amendments journey in India. The first ever amendment to the constitution was passed within one and a half years of its adoption. After some really fierce parliamentary discussions, The First Amendment successfully placed restriction on freedom of speech along with introducing caste-based reservation and finally circumscribed the right to property, formalised and legalised the complete abolition of the zamindari system; it also inscribed a new schedule of the so ‘contradicting’ constitutional laws immune to judicial reviews.
This was followed by citizens challenging the First Amendment on the basis that they altered the essence of fundamental rights, in the famous cases-
Shankari Prasad Deo Vs Union of India and Sajjan Singh Vs State of Rajasthan wherein both, the power of parliament to amend any part of the constitution including the part of fundamental rights without any limitations was upheld. Although Justice J.R. Mudholkar in his dissent, within the case of Sajjan Singh v. State of Rajasthan. He put forth a very curious proposition of whether the entire scope of Article 368 included the power to alter a basic feature or rewrite a part of the Constitution. He quoted, “It is additionally a matter for consideration whether making a change in an exceedingly basic feature of the Constitution are often regarded merely as an amendment or would it be, in effect, rewriting a section of the Constitution; and if the latter, wouldn’t it be within the purview of Article 368?”
The Parliament had almost achieved it’s supremacy but the famous I C Golaknath Vs State of Punjab case came in it’s way. Finally, in the landmark judgement of Golaknath v. State of Punjab ,fundamental rights were given a ‘transcendental and sacrosanct’ position. In the given case, ‘the doctrine of implied limitations’ owed to the idea of Professor Conrad, was brought forth by M.K. Nambiar, a constitutional lawyer. So, the apex court had finally reversed it’s position in the previous cases and held that no amendment of any kind could contribute to the progress of country at the stake of fundamental rights of the citizens. And this was the pavement of the country’s most cited Constitutional case- Kesavananda Bharti Vs State of Kerala.
The petitioner, His Holiness Sripadavalguru Kesavanand Bharti was chief of a religious sect ‘ Edneer Mutt’ in Kerala. This sect was disappointed by the fact that certain lands ‘property’ was acquired by the state for socio-economic progress. So, a petition was filed by His Holiness on 21 March 1970 under Article 32 for enforcement of his fundamental rights (Art. 25, 14, 19(1) (f), and 31). And while the petition was still in progress, Govt. of Kerala passed Kerala Land Reforms Act, 1971. Simultaneously, 24th, 25th, and 29th Amendments were also passed.
The court had to decide the constitutional validity of
- 24th Amendment
The 24th Amendment Act empowered the Parliament to amend any part of the Constitution, even if fundamental rights are curbed because of it.
- 25th Amendment
The 25th Amendment Act took away the essence of right to property of citizens. It permitted acquisition of private property by govt. for public use in return of compensation payable.
- The 29th amendment
The 29th amendment act stated out the Kerala Land Reforms Amendment Act, 1969 and 1971, which was introduced in IX schedule of Constitution. These were mostly passed to nullify the Court’s decision in Golaknath Case. Golaknath was decided by a 11 judge Bench.Therefore, Kesavanand Bharti case was to be decided by the largest ever 13 judges Bench.
- The extent of power of Court to amend the Constitution.
On the topic of 29th Amendment and Fundamental Right to Property-
The petitioner cited authority case- Eason Vs State, Supra. This foreign judgement explicitly prevented the Legislature to amend any provision in the Bill of Rights- the basic rights guaranteed by Constitution.
The respondents argued to this point that, the Sate in order to fulfil Directive Principles of State Policy and the socio-economic progress obligations under preamble can amend any part of the Constitution and curb over fundamental rights.
On the topic of 25th Constitutional Amendment Act-
The petitioners urged that Parliamentary powers in a Democratic form of Government is limited. A sense of freedom was guaranteed to the Indian citizens, if Article 31 C which was inserted by the 25th Constitutional Amendment Act is decided as valid by the Court, only Parliament and Legislature would be supreme and will have authority to decide how much freedom is necessary for citizens.
Respondents argued that, Art. 31 (A), (B) and (C) are very similar and object of inserting such article is to free it from legislative reviews by virtue of Fundamental Rights and if this Court understands Art. 31 (A) as valid, it automatically justifies Art. 31 (C).
On the topic of 24th Constitutional Amendment Act-
Petitioners claimed that Power of amending under Art. 368 is of limited nature. Constitution gave certain rights and freedoms to Indian citizens, which shall be alive till the existence of Constitution in Indian Democracy. Therefore, amending power cannot destruct such essential freedoms.
The Respondents claimed an unlimited power for the amending body. They even expressed that if the State wishes to, its amending power is so wide that it can amend all rights contained in Part III alongwith the unfettered access to amend Directive Principles of State Policy, the federal system can be drastically changed and the right to judicial review can also be taken away. Respondents claimed that Parliament has ‘omnipotent powers’ under Art. 368.
On the word ‘Amendment’ and ‘Art.368’
The petitioners argued, Parliament is created by Constitution. This power to amend is by virtue of Constitution. Constitution identifies the ‘State’ as Sovereign Democratic Republic. So the execution of powers should also be made keeping in mind it is the Parliament of Sovereign Democratic Republic. Also, ‘Doctrine of Implied Limitations’- the basic features noted by Alexander Hamilton should be protected and cannot be altered.
Respondents claimed that the powers under Art. 368 is ‘constituent power’, it is whole in nature. The procedure followed by Parliament while exercising Art. 368 is a replica of formulation of Constitution by Constituent Assembly. So, in other words, Parliament acts in the same capacity as Constituent Assembly and it can completely destruct, alter, abridge the provisions of Constitution.
The issues, first of their kind, were a beautiful complexity. Even the most basic questions moved along with a wide scope of controversy. The smaller issues aimed for addressal were-
1) What should be the rule of interpretation?
2) What is the meaning of ‘amendment’?
3) What is the source of ‘amending power’ in the Indian Constitution?
4) Can people of India be authorised solely for the purpose of amendment?
5) By declaring constituent power has Parliament acquired for itself a position above Constitution?
6) Does Art.13(2) control Art.368?
7) Are the Fundamental Rights subject to amendment?
8) Does the ‘Doctrine Of Implied Limitation’ apply upon Indian Constitution
9) What is the scope of Judicial Review?
10) What is the scope and extent of amending power with respect to Art 368?
11) Is not the Doctrine Of Basic Structure a vague doctrine?
The size of the bench in Kesavananda Bharti (13 judges) was the largest ever bench and this fact is of great importance because while deliberating on such issues which do not have any inherent authority, various perspectives are absolutely incremental. It is the most cited case in constitutional law. It holds high importance. It was also decided beforehand that if any ambiguity related to interpretation is met with Hyden’s rule would be followed. Hyden’s rule can be used to interpret a statute and strictly only when the statute was passed to remedy a defect in common law.
All the issues were addressed and summarised below collectively-
The amendments are essentially to be followed within the limits of constitution. These ‘limits’ are to be followed by the principles. Before anything debatable arose ever, the Constitution was and has to be considered ‘Social Document’. The freedom struggle went through with a promise of ‘revolution’- socio economic revolution. So any amendment should relate to these principles. The ‘Constitution’ is a remarkable entity in it’s own and it definitely does not come with a mechanism that could steal away this identity. Art. 368 is the only source of of amending power, it cannot be considered as a green signal to the law makers to go ahead with distortion/ destruction of it’s essential identity. In a representative democracy like ours, it is not possible for the people to the directly amend it, it has to be done by the Parliament. While dealing with the 5th issue , the Court held the ‘constituent power’ of Parliament is not similar to that of the Constituent Assembly.
Moreover, yet again it was emphasized that Parliament is creation of the Constitution and hence all the powers it has are a derivation from Constitution. Therefore, The Parliament even while using constituent power or any other power has to strictly move within the limits of the ‘Supreme Law’.
Part III of the Constitution is basic, it includes the ‘fundamental rights’ and these are vital to the citizens living in a democracy, especially. The words used in articles of these ‘rights’ are amendable as decided by the Court but they cannot be amended at the cost of bruising the ‘basic structure’. Only 6 judges assented that ‘fundamental rights’ could not be amended. Hence it was a ‘minority view’. And the amendment of Art. 368 was also held to be on similar grounds. On the last issue, it was held that a few legal principles like Natural justice, divine law cannot be rigidly defined, still they continue to be essential and binding.
More than the contention of the parties, the comprehensive judgement of the justices should be understood so as to the reach to the essence of this ‘one of a kind judgement’, the judgement referred to as the one which ‘saved the Indian Democracy’.
Chief Justice Sikri pointed out in his view that the respondents claim that Parliament can abrogate fundamental rights such as freedom of speech and expression, freedom to form associations or unions, and freedom of religion. They claim that democracy can even be replaced and one-party rule established. Indeed, short of repeal of the Constitution, any form of Government with no freedom to the citizens can be set up by Parliament by exercising its powers under Article 368.
Nani Palkhivala put forth a curious argument while the proceedings of the case continued that even if the Article 368 were examined broadly, the preamble was not amendable and Article 368 could not be read as “expressing the death wish of the Constitution or as a provision for its legal suicide.”
Whereas all the judges confabulated their opinions over the ‘Doctrine of Basic Structure’ they interpreted it with the same essence but different literary, Justice Khanna delivered the majority view and is forever unforgettable in the books of law for being the profounder for legitimising the concept of ‘basic structure’.
The Court ruled the test in this regard- “ Any principle of law abridged from the Constitution would potentially give rise to a loss of the very principle of unity and integrity of the nation, the basis on which we revolutionised our freedom struggle, and the dignity of the individual would be considered to be an essential feature of the Basic Structure. It also held that the amending power of the legislature shall be subject to a doctrine called the doctrine of ‗basic structure‘ and therefore the parliament cannot use its constituent power under Article 368 so as to ‘damage’, ’emasculate’, ‘destroy’, ‘abrogate’, ‘change’ or ‘alter’ the ‘basic structure’ or framework of the Constitution.”
Justice Sikri observed that the phrase ‘amending the Constitution’ does not give the Parliament the authority to destroy it’s very identity or take away fundamental rights or even damage/ change the very features of it’s acknowledged existence.
Justices Reddy, Mukherjee and Hedge explained the basic features to be a broad category term under which sovereignty, democratic character, unity and essential freedoms were secured to citizens. Justice Grover and Justice Shelat also believed that there were implied limitations on amending power of Parliament and there were certain basic elements to the Constitution.
On the other hand, Justice Ray observed that ‘power to amend’ has a broad scope and no limitations . Justice Palekar also stated that in his view, taking away fundamental rights can’t be declared as illegitimate.
The term ‘basic structure’ was used only by Justice Khanna, which was lifted by Chief Justice Sikri and adopted in his view of the majority. T. R. Andhyarujina in his book wrote that the ‗view of the majority‘ cannot be the ratio of the Keshavananda Case.
The court upheld the 24th and 25th Constitutional Amendment entirely but the 1st and 2nd part of the latter was found to be intra vires and ultra vires respectively. The judgement legitimised the concept of ‘Basic Structure’.
The landmark case of Keshavananda Bharti provided a great stability in the times of ‘Tussle’ between Judiciary and Parliament to establish supremacy. This judgement rather upheld the supremacy of Constitution over everything. Though the petitioner lost his case partially, yet the judgment given by the largest ever Bench in Indian history, worked out to be the biggest savior of Indian democracy and saved the Constitution from losing its essence.
Note- The readers for better reference can read the book ‘The Kesavananda Bharati Case: The Untold Story of the Struggle for Supremacy by the Supreme Court and Parliament’ by T. R Andhyarujina, to understand the case better in terms of the political play of it’s time refer to the article published in The Hindu https://www.thehindu.com/opinion/op-ed/the-case-that-saved-indian-democracy/article4647800.ece and to read a comprehensive research paper which looks at the same case with a very curious angle please read- https://www.researchgate.net/publication/272550126_Kesavananda_Bharati_Revisited_Whether_Basic_Structure_Doctrinee_Was_the_Ratio_of_Kesavananda_Bharati.
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