Kesavananda Bharati case

IN NEWS:

• Kesavananda Bharati, whose petition in the Supreme Court led to the evolution of basic structure doctrine of the Constitution, passed away.

WHO WAS KESAVANANDA BHARATI:

• Bharati was the head of Jagadguru Shankaracharya Samsthanam mutt at Edneer, Kasaragod in Kerala.
• The mutt is believed to have been established by Totakacharya, one of the first four disciples of Adi Shankaracharya.

EVENTS BEFORE THE CASE:

The Kesavananda Bharati case was the culmination of a serious conflict between the judiciary and the government over the years.

• In the Golaknath vs State of Punjab case (1967), an 11-member bench of the Supreme Court ruled that Parliament cannot curtail any fundamental right guaranteed under the Constitution.
• To nullify the Golaknath verdict, Parliament enacted the 24th Amendment (1971), laying down that its powers to amend the Constitution were unrestricted and unlimited.
• In 1969, the Indira Gandhi government nationalised 14 largest commercial banks in the country through an ordinance, with paltry compensation to the shareholders.
• In Rustom Cooper vs Union of India (1970), known as the Bank Nationalisation case, the Supreme Court upheld the government’s right to nationalisation but struck down the compensation offered.
• The 25th Amendment made many changes in Article 31 (dealing with compulsory acquisition of property) following the Bank Nationalisation case.
• In 1971 came the abolition of privy purses to the princes. The 26th Amendment, terminated the privileges and privy purses of the ex-rulers of the former princely states, thereby getting over the Supreme Court's ruling in the privy purses case.

IMMEDIATE BACKGROUND OF THE CASE:

• In the 1960s, some parcels of land of the Edaneer Mutt were acquired under two land reform laws of Kerala. In March 1970, Bharati moved to the Supreme court, challenging the Kerala government’s takeover.
• However, in 1971, Parliament adopted the 29th Constitutional Amendment, giving protection to Kerala laws under Ninth schedule and thereby keeping the acts beyond judicial review.
• The seer moved to the Supreme Court challenging it through writ petitions as a violation of Fundamental Rights enshrined in Articles 25, 26 and 31 of the Constitution. N.A. Palkhivala appeared for the petitioners.
• The petition was heard by a 13-member bench, the largest-ever bench in the history of the Supreme Court.

THE JUDGEMENT:

At the core of all the case was the basic question: Was Parliament’s power to amend the Constitution unlimited, or was that power circumscribed when it came to certain fundamental rights of the people?

The Supreme Court reviewed the decision in Golaknath v. State of Punjab, and considered the validity of the 24th, 25th, 26th and 29th amendments. The court heard the petition for 68 working days before giving the judgement.

• Despite the bench giving eleven separate judgments, with a narrow majority of 7:6, the Court settled in favour of the view that Parliament can amend or alter any part of the Constitution as long as it does not alter the ‘basic structure or essential features of the Constitution.’
• It upheld the validity of the 24^th and 29^th Amendments. But a part of the 25^th amendment was made invalid.

WHAT IS THE BASIC STRUCTURE DOCTRINE?

• The origins of the basic structure doctrine are found in the German Constitution which, after the Nazi regime, was amended to protect some basic laws. The new German Constitution introduced substantive limits on Parliament’s powers to amend certain parts of the Constitution which it considered ‘basic law’.
• In India, the basic structure doctrine forms the bedrock of judicial review of laws passed by Parliament. No law can impinge on the basic structure.
• In the following years, the doctrine was reaffirmed and applied by the Supreme Court in several important cases, such as the Indira Nehru Gandhi case (1975), Minerva Mills case (1980) and Waman Rao case (1981).
• However, the Supreme Court is yet to define or clarify as to what constitutes the ‘basic structure’ of the Constitution. The claim of any particular feature of the Constitution to be a "basic" feature is determined by the Court in each case that comes before it.
• In the matter of application of the principle of basic structure, the twin tests have to be satisfied, namely, the ‘width test’ and the ‘test of identity’.
  • The ‘width test’ means boundaries of the ‘width’ of power. In applying, the width test, it is seen whether the impugned amendments destroy the constitutional limitations.
  • The ‘test of identity’ means no alteration in the existing structure. In applying the test of identity, it is seen whether the circumstances justifying the same have been identified and valued.
• The sovereign, democratic and secular character of the polity, rule of law, independence of the judiciary, fundamental rights of citizens etc. are some of the essential features of the Constitution that have appeared time and again in the apex court's pronouncements.

HOW THE JUDGEMENT BENEFITED INDIA?

• Reinforced constitutionalism: By introducing basic structure doctrine, the Court has restricted the powers of Parliament. The basic structure doctrine is a mean to give momentum to the living principles of the “Rule of Law” and connotes that none is above the Constitution and the Constitution is supreme.
• Strengthened judicial review: The doctrine of basic structure was key in the IR Coelho case judgement, where the court ruled that ninth schedule items are not immune to judicial review. This ended the practice of adding controversial laws under the ninth schedule to avoid judicial scrutiny.
• Preserved democracy: Without the basic structure doctrine, every political party with 2/3rd of the majority in the parliament could have brought any amendment, which could have turned the country into a totalitarian State or had one-party rule.
• Flexibility of the constitution: Golaknath judgement was of the opinion that the Parliament has no authority to amend the Fundamental Rights and if there is any amendment then it has to come from the Constituent Assembly. Kesavananda overruled this and granted sufficient necessary flexibility to the Constitution.
• Protected minority: The doctrine has an anti-majoritarian flavor and is of prime importance as it prevents the Parliament from abusing its majoritarian power.
• Reinvigorated People’s trust in judiciary: Kesavananda Bharati is reportedly the first person to file a petition in the Supreme Court challenging the amendments to the Constitution. His actions laid the path for many to seek legal recourse.

CRITICISM:

• Vague definition: The Doctrine of Basic Structure is subjective and vague in the sense that there is no clear-cut list. This has resulted in numerous legal battles over the years.
• Difficult to define: Precise formulation of the basic features would be a task of greatest difficulty and would add to the uncertainty of interpreting the scope of Article 368.
• Judicial veto: The doctrine has led to the Indian Supreme Court becoming one of the most powerful in the world. The Supreme Court has assumed much power in what may be termed as power of veto to every Constitutional amendment.
• Undermines democratic process: Due to the doctrine, the sovereign people through their elected representatives cannot bring about their desired change.
• Violates separation of power: Only the Supreme court has the power to determine as to what constitutes a part the basic structure. The Parliament, despite being the law-making body, has no power in this regard. This violates the principle of separation of power.

CONCLUSION:

Though Kesavananda Bharati lost his case, the judgment proved to be a saviour of democracy and saved it from falling into pieces. Because of its unprecedented impact, the Kesavananda Bharati case was and will always be having fame in the constitutional history of our nation.

PRACTICE QUESTION:

Q. “The Kesavananda Bharti case protected the Indian State from collapsing like many of its South Asian counterparts”. Discuss?