The 40th Year of Keshavnand Bharti Judgement

Since the inception of our constitution there have been doubts, vagueness about various provisions which are embodied in our constitution and supreme court has played a very significant role in interpreting these vague provisions and filling the void. And one of the most controversial provision was amendment of the constitution. The Amendment of the constitution has been there in Article 368 and basic purpose of this provision is to infuse flexibility of our constitution but bounds of this provision was not marked, However parliament was entitled to amend the constitution and also the procedure was also there in Art 368 but how much power is conferred in the parliament to amend the constitution was still under the shadow.

One of the important features are the fundamental rights, But they are part of the constitution. In Art 13 it is clearly mentioned that any law which abridges the fundamental right is void, But what about the constitutional amendment, The biggest question before the court for a long time was Can the fundamental rights can be amended and can be attenuated as per the wish and whims of the parliament? There have been different case laws to interpret this dilemma but none was concrete and in no time the decision of the Supreme Court got overruled by another.

Starting from very first amendment which was challenged by “shankari Lal V UOI  “ It was contended in this case that the “Law” defined in Art 13(2) is the same law which is to be amended by art 368 and if this “Law” abridges the fundamental rights it is void. The supreme court made it clear that the word “law” in art 13(2) is the ordinary law, But the “la w” which is to be amended by art 368 is constituent law and is outside the scope of Art 13(2), This meant if any provisions which may be inserted in the constitution is in violation of any of the fundamental rights is not void. This also meant that the parliament has an Inherent power to amend the fundamental rights and can even remove the fundamental rights.

But 20 years later the supreme court overruled the Shankari Prasad judgement in “Golak Nath V State of Punjab” The Parliament has no power to abridge or amend the fundamental rights  as fundamental rights are transcendental position under our constitution, and clear it’s stance that an Amendment is a law within the meaning of Art 13(2), The supreme court took a u turn on it’s earlier path and thus made two stance extremely opposite to each other.

Due to which the parliament in it’s 24th amendment   parliament has inserted a provision in Art 368 “Nothing in Article 13 shall apply to any amendment made under this article” and hence overruled the Golak Nath judgement. Which was challenged by the Keshavnand Bharti caseIn this case the supreme court upheld the validity of 24th Amendment which again raised the serious question again up to what extent the whole constitution can be Amended ?Can the parliament take away the fundamental rights by amending it? The court was in opinion of taking a middle path.

1. While affirming the Parliament can amend any of the provisions of the constitution as per the procedure in article 368.

2. However the power to amend is limited keeping in mind the Basic features of the constitution.

3. The basic feature includes secularism, socialism, equality, Federal character and separation of power.

4. The basic feature also includes fundamental rights and directive principles.

The court further held that the provision inserted in 24th amendment is valid as it made what was implied in art 368 as express and does not abrogate any fundamental rights.

Making the decision more flexible the Supreme Court clearly mentioned that the fundamental rights can be abridged reasonably but cannot be abrogated. In order to preserve the basic features of the constitution the judgement was a Savior of our constitution. It preserved both rigidity and the flexibility, by inserting the bounds of “basic structure”. The “Basic Structure” hence forms a safety valve against the abrogation of the fundamental rights.

However some of the dissenting judges criticized the Doctrine of Basic Structure, They describe it vague as there was no subject matter that clearly specifies what “Basic structure” is and what is not?

However the landmark judgement of Keshavnand Bharti has kept the spirit of the constitution alive and prevented the misuse by the parliament against wipe off the constitution and thereby protecting the fundamental rights of the citizens.

By: Nitish Banka