The context, theme & impact of Keshavananda Bharati Case

The Supreme Court (SC) judgment in the Keshavanand Bharati case (Keshavananda Bharati v State of Kerala: AIR 1973 SC 1461), delivered exactly 47 years ago on 24th April 1973, stands out in Indian legal history as a beacon light.

The judgment was delivered by the largest SC Bench so far. The hearing was the lengthiest one spanning 68 days. The judgment running into 703 pages was the longest one then.

The judgment helped India in upholding the lofty principles of Indian Constitution to a great extent, despite the country has been reeling under diverse political pressures over the years. The judgment crystalised the doctrine of basic structure of the constitution and established that any law, amendment of law or even constitutional amendment should not go inconsistent with what is called the basic structure of the Constitution.

The context of the case

The judgment came out at a time when the democratic institutions - Parliament, Government and Judiciary – overzealously struggled for gaining power over the other. The struggle for power between the judiciary and the legislature reached its boiling point in the mid seventies. Through this judgment the SC wielded power over legislature by setting some limits to the legislative business of law making by Parliament.

The then government in the early seventies considered the right to property – a fundamental right then - as a villain against its socialistic reforms. The SC was also considered to be a stumbling block to the then ongoing sweeping socialistic reforms by “obstructing social and economic justice” by its judgments in Golak Nath, Bank Nationalization and Privy Purse cases.

Keshavanda Bharati comes to the scene

In the year 1970, Swami Keshavanda Bharat filed a writ petition in SC under Article 32 questioning some of the provisions of the Kerala Land Reforms Act, 1963 and its amendment in 1969. Some other appeals on closely related subjects were also in the SC and the SC partly allowed them. The government of India in order to put an end to any uncertainty brought forward the 29th constitutional amendment and inserted the land reforms act in the IXth schedule of the Constitution. Then Swami Keshavananda Bharati amended the petition for challenging the Kerala Land Reforms (Amendment) Act, 1971 and the 29th constitutional amendment act, 1972.

Swami Keshavanand Bharati was not the only petitioner in this case. There were six writ petitions by coal, mining and sugar companies and 20 interveners.

The crucial question the SC considered

The most pertinent question the SC had to deal with was whether Parliament under Article 368 of the Constitution had unfettered power to amend the constitutional or the court has sufficient power to review such amendments.

Cases having bearing on this judgment

Three directly related cases - Shankari Prasad case, Sajjan Singh case and Golak Nath case - were examined in the Keshavanand Bharati case.

In Shankari Prasad case (1952 I SCR 89) the Zamindars challenged the first amendment to the Constitution. They challenged that the Article 13(2) of the Constitution which then prohibited the amendment of any law in a manner abridging the fundamental rights is applicable not only to the laws but to the constitutional amendments also. The Zamindars raised this argument in order to nullify the first amendment that enacted Article 31B of the Constitution for adding the IXth Schedule of the Constitution. The inclusion of any law into the schedule would make it immune from challenge on the ground that it is inconsistent with the fundamental rights. The right to property was a fundamental right then. But in Shankari Prasad case the five judge Bench of the SC rejected the argument of the Zamindars.

In Sajjan Sing v State of Rajasthan case, the validity of the 17th constitutional amendment act which inserted 44 statutes into IXth Schedule was challenged before another five judge Bench of the SC. In this case, what was in challenge was the failure of Parliament in following the procedure prescribed to amend the constitution. The case was also dismissed.

The issue whether Parliament can amend the fundamental right was again raised in Golak Nath case (Golak Nath v State of Punjab: AIR 1967 SC 1643) examined by an eleven judge Bench. The SC Bench going against the Shankari Prasad case declared that the constitutional amendments under 13(2) can be reviewed by the court if they are inconsistency with the fundamental rights. The Bench in order to avoid chaos decided that the decision would be applicable only to subsequent amendments by invoking the doctrine of prospective overruling.

Again Parliament in the in 24th constitutional amendment inserted Article 13(4) to exclude constitutional amendments from the ambit of Article 13 and to nullify the Golak Nath judgment.

Parliament then passed 29th constitutional amendment for inserting two laws the Kerala land Reform (amendment) Act, 1963 and 1971 into the IXth Schedule which affected the property rights of swami Keshavanand Bharati.

Therefore Swami Keashavananda Bharati challenged the 24th and 29th constitutional amendments in the case. The petitioners counsel Nani Palkivala argued against the 24th, 25th and 29th amendments to the Constitution.

The petitioners argued that some of the most cardinal principles of the Constitution cannot be nullified through constitutional amendments. The government, on the other hand, argued that under Article 368 any amendment to the Constitution, except its repealing, could be done by Parliament

The SC in this judgment decided as follows:

• The 24th constitutional amendment was upheld and it overruled the view in the Golak Nath judgment, which asserted that fundamental rights under the Constitution cannot be altered or nullified by Parliament.
• The 25th constitutional amendment, except the clause ousting the court’s jurisdiction, was upheld. The amendment replaced the word “compensation” with “amount” in Article 31.
• The 29th constitutional amendment act, which included the two Kerala land reform amendments in the IXth schedule, was upheld.
• No implied limitation is there on Parliament in amending the fundamental rights under Article 368 except that it should not destroy the basic structure of the constitution.

The Keshavananda Bharati judgment asserts that Parliament has unfettered right to amend the constitution on one hand, but the SC on the other has a coextensive power to review and invalidate any amendment that destroys its basic structure. It declared that Parliament, just being a representative body, cannot redraft the Constitution under the pretext of amending the Constitution.

Basic structure remains undefined

By formulating the basic structure doctrine the SC declares that some parts of the Constitution are basic, indestructible and immune from constitutional amendment. However the basic structure is not capable of being precisely defined or enumerated.

The majority of judges who admitted the existence a “basic structure of the Constitution” did not agree with the list of the principles included in this concept. Each judge drew a different list as to what constitute the basic structure according to his own subjective perception. The SC, in short, left it for the wisdom of subsequent benches to fill up the details, case by case.

Prof Upendra Baxi says the basic structure means more or less the following features:

1. Total repeal of the Constitution would be violative of the basic structure,
2. Any expansion of Article 368 to achieve consequence of total repeal would similarly be violative of the basic structure,
3. Any attempt to deprive the Court of its power of judicial review of Constitutional amendments would also be transgressive of basic structure,
4.  Freedoms guaranteed by Articles 14, 19 and 21 constitutes to limits the power of amendment ,
5. Any attempt to abrogate Part IV of the Constitution may violate basic structure, and
6. The democratic nature of the Constitution may not be validly transformed by the use of Article 368.

Conclusion

In short, the SC held that the Constitution is the means of ordering the life of the people and the power to amend the constitution does not include the power to completely abrogate constitution and replace it by an entirely new one.

The author is an advocate at Thrissur.He can also be reached at rajankila@gmail.com