A look at how Kesavananda Bharti saved the Indian constitution

SYNOPSIS:

1. INTRODUCTION:
   1. On the 47th Anniversary of the landmark judgement of Kesavananda Bharti v. Union of India, this article gives a brief overview of the case.
   2. The article also talks about various international judgements where the same has been cited.
   3. This landmark judgement gave birth to the most important doctrine, that is the Doctrine of Basic Structure.
   4. The doctrine of “basic structure” aims at ensuring that essential features of the constitution is not destroyed or tinkered with and that its supremacy is preserved.
2. FACTS AND BACKGROUND:
   1. The article briefly elucidates the facts of the case and the background which led to the delivery of such a significant judgement.
3. ARGUMENTS BY PETITIONER:
   1. Parliament does not have the power to amend the constitution according to their whims and fancies. They have a very limited power when it comes to making amendments.
   2. Further arguments are also analyzed.
4. ARGUMENTS BY RESPONDENTS:
   1. Respondents were the State, and they contended that the supremacy of Parliament is the basic principle of the Indian Legal System and so the parliament has the power to amend the constitution.
5. WHAT THE COURT HELD?
   1. The court by majority (7:6) held that the Parliament has the power to amend almost every part of the Constitution but this power is subject to condition that such amendment does not curtail/violate the basic structure of the constitution. 
   2. A brief overview of the extensive judgement is provided in the article.
6. REFERENCES MADE BY OTHER COURTS:
   1. The case has been referred in court of countries like Bangladesh, Uganda, Belize, Seychelles etc.,
7. CONCLUSION:
   1. By virtue of this landmark judgement, today the fundamental rights of the Indian citizens are secured.
   2. This judgement has also safeguarded the ideas and intentions of the drafters of the constitution.
   3. This judgement provided stability to the legal system and provided a structure for both the judiciary and the executive of the country.

INTRODUCTION:

It has been 47 years since the landmark judgement of Kesavananda Bharti v. State of Kerala,[1]which birthed the concept of “basic structure” and has thus saved the Indian constitution from many vicious attempts of misuse. The doctrine of “basic structure” aims at ensuring that essential features of the constitution is not destroyed or tinkered with and that its supremacy is preserved. The principle laid out in this landmark judgement has been applied by several courts, globally.

The court in the present case stated that the Indian Judiciary has the power to review or to amend the provisions of the constitution enacted by the Parliament of India which are in conflict with, or seek to alter the basic structure of the constitution. The Apex Court further stated that there are certain principles within the framework of Indian Constitution which are inviolable and hence cannot be amended by the Parliament. These principles were commonly termed as Basic Structure, and thus, the principle of “Basic Structure” was born.

FACTS OF THE CASE:

• In February of 1970, Swami HH Sri Kesavananda Bharati, who was a senior head of "Edneer Mutt", a Hindu Mutt in the town ofEdneer,Kasaragod Region of Kerala, challenged that the Kerala government's endeavors, under the two state land reform acts, namely Kerala Land Reforms Act, 1963 and Kerala Land Reforms (Amendment) Act, 1969.The sect had certain lands acquired under its name which the Kerala government by virtue of the Kerala Land Reforms Act, tried to acquire in order to fulfill their socio-economic obligations.
• On 21st March 1970, the petitioner moved to Supreme Court by virtue of Article 32 of the Indian Constitution for the enforcement of rights under Articles 25 (Right to practice and propagate religion), 26(Right to manage religious affairs), 14(Right to Equality), 19(1)(f) (Freedom to acquire property) and 31(Compulsory Acquisition of Property). 
• The government under Indira Gandhi had brought about some very serious changes to the constitution by way of several amendments (24th, 25th, 26th and 29th Amendment) after another landmark judgement of Golaknath v. State of Punjab[2].

BACKGROUND:

The genesis of the dispute leading to Kesavananda Bharati lies in the interpretation of Article 368 of the Indian Constitution, which allows Parliament to amend the Constitution.[3]

While Article 368, in itself is ambiguous, its scope and powers delegated by its virtue were highly contested in Golaknath’s case, where the Supreme Court ultimately held that that Parliament, in exercising its power to amend the Constitution, did not have the power to amend the fundamental rights under Part III of the Indian Constitution. Following this judgement and a series of other judgements, such as R.C. Cooper v. Union of India[4] and Madhav Rao Scindia v. Union of India[5].

The government under Indira Gandhi’s leadership passed the following amendments in order to defeat the purpose of Golaknath’s case and thus, supersede the decision of Supreme Court.

• The 24th Constitutional (Amendment) Act, 1971 introduced clause (4) in Article 13, protecting Article 368 from the action of Article 13.
• Clauses (1) and (3) were also added to Article 368, to both restrict the scope of Article 13, as well as to establish the distinction between the amending power of Parliament and its legislative power.
• The 25thConstitutional (Amendment) Act, 1971 modified Article 31 of the Constitution, expanding the power of the Government to acquire private property.
• And with the 26thConstitutional Amendment Act, 1971, Parliament nullified the decision of the Supreme Court in the Privy Purses case.

These changes led to a battle between two principles, namely, the Parliament’s unrestricted power to amend the Constitution, and the Constitutional restrictions against such unrestricted power.[6]

ISSUES BEFORE THE COURT:

• Whether the 24th Constitutional (Amendment), Act 1971 is Constitutionally valid or not?
• Whether the 25th Constitutional (Amendment), Act 1972 is Constitutionally valid or not?
• The extent to which the Parliament can exercise its power to amend the Constitution.

ARGUMENTS RAISED BY PETIITIONERS:

• The very first contention raised by the petitioner was that the Parliament does not have the power to amend the constitution according to their whims and fancies. They have a very limited power when it comes to making amendments.
• The Parliament cannot exercise its power of making amendments to the constitution if such amendments have the power of changing the basic structure of the constitution, as propounded by Justice Mudhokar in Sajjan Singh v. State of Rajasthan.[7]
• It was argued by the petitioners that the 24th and 25th Constitutional Amendments violated the Fundamental Right which was provided under Article 19(1)(f) of the Indian Constitution. The petitioner has pleaded for protection of the property under Article 19(1)(f).
• Fundamental Rights are rights available to citizens of India to ensure freedom. If an amendment curtails such rights, then the fundamental right of citizen is taken away from him/her.

ARGUMENTS RAISED BY RESPONDENTS:

• Respondents were the State, and they contended that the supremacy of Parliament is the basic principle of the Indian Legal System and so the parliament has the power to amend the constitution.
• The court had raised similar arguments as they had raised in the case of Shankari Prasad v. Union of India[8] where they contended that the power of Parliament with respect to attending the constitution is absolute, unlimited and unfettered.
• The state has also contended that the state pleaded that in order to fulfill its socio-economic obligations guaranteed to the citizens by the union in Preamble, it is of immense importance that there is no limitation upon the authority of the Parliament.
• The essence of State’s arguments was that if what Golaknath’s case & petitioner is contending becomes the law then all the social and egalitarian obligations bestowed on the Parliament by the highest law i.e. Constitution will come in direct serious conflict with the rights under Part III.[9]

WHAT DID THE COURT HOLD?

• The court by majority (7:6) held that the Parliament has the power to amend almost every part of the Constitution but this power is subject to condition that such amendment does not curtail/violate the basic structure of the constitution. 
• The constitutional bench consisting of 13 judges, upheld entire 24th Constitutional (Amendment) Act, 1971 whereas it found 1st part of 25th Constitutional (Amendment) Act, 1972 intra vires &2nd part of the act ultra vires. 
• The court elaborately came up with the DOCTRINE OF BASIC STRUCTURE. This doctrine implied that while the Parliament has the right to amend the constitution, it has to do so without interfering with its true spirit.
• Justices Hege and Mukherjeahave explained that “Indian Constitution is not a mere political document rather it is a social document based on a social philosophy. Every philosophy like religion contains features that are basic and circumstantial. While the former cannot be altered the latter can have changes just like the core values of a religion cannot change but the practices associated with it may change as per needs & requirements. The list of what constitutes basic structure is not exhaustive & the majority bench has left it to the courts to determine these fundamental elements. It is upon the courts to see that a particular amendment violates Basic structure or not. This question has to be considered in each case in the context of a concrete problem.”[10]
• The Kesavananda Bharati case overruled the court’s judgement in Golaknath’s case.

REFERNCE OF KESAVANANDA BHARATI CASE IN OTHER JUDGEMENTS:

This judgement is landmark and has been cited by not just the Indian courts, but by courts of other nations also. The Bangladesh Supreme Court in the case of Anwar Hossain Chowdhary v. Bangladesh,[11] recognized the concept of Basic Structure. Justice M.H. Rahman observed the following, “…At times, I had the feeling that the Court is rehearing Kesavananda, the appellants relying on the majority decision, the respondent relying on the minority one”

In the small Caribbean nation of Belize, the court relied on Kesavananda Bharti’s case and adopted the Doctrine of Basic Structure.[12] In the African country of Uganda, the Doctrine of Basic structure also found acceptance in the case of Male H Marlize K. Kiwanuka and Ors. v. the Attorney General.[13] The question in this case was whether removing President’s age by way of amendment in order to limit the position of President was against Basic Structure or not. The court upheld that age of President id not a part of Basic Structure. In this case, Kesavananda Case was relied not only for 'Basic Structure', but also for 'importance of preamble in Constitution'. African island of Seychelles also referred to the Doctrine of Basic Structure.[14]

CONCLUSION:

The Kesavananda Bharati case has been referred to as the case which saved the Indian constitution. By virtue of this landmark judgement, today the fundamental rights of the Indian citizens are secured. This judgement has also safeguarded the ideas and intentions of the drafters of the constitution. According to Nani Palkiwala, who was representing the petitioners, “the seven judges at majority bench were of the opinion that through this judgment they have saved Indian democracy which our respected ancestors fought so hard for.”

India had fought long for independence against the British rule and one of the most significant outcomes of the freedom struggle was “Democracy”. Prior to this judgement, the Parliament had the power to go over and beyond the constitution, which is the Rule of the land in India, also considered to be the grundnorm. It was only after the Kesavananda Bharti judgement that this right was limited, and thus, the true spirit of constitution was protected. This judgement provided stability to the legal system and provided a structure for both the judiciary and the executive of the country. Even though, the petitioner had lost the case that he had put, partially,the judgement given by the largest constitutional bench the country had ever witnessed, has proven to be the savior of Indian Democracy and saved the Rule of the Land from losing its true spirit.