Login It was on this day; forty year ago Supreme Court decided the landmark judgement for ever, Kesavananda Bharati v. State of Kerala. The most significant contribution by Kesavananda Bharati judgment is the recognition of supremacy of the Constitution of India and its unalterable features. The hard work and scholarship that had gone into the preparation of this case was breath taking. Literally hundreds of cases had been cited and the then Attorney-General had made a comparative chart analysing the provisions of the Constitutions of 71 different countries!
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Over the centuries, the singular truism which is well recognized is that the guidelines or laws to be enforced, cannot be mired in time and need to evolve so as to be relevant to the prevailing social and moral context. This truism requires constant change, which like all change is disruptive.
History therefore inevitably reveals turbulence and conflict as the legal framework slowly adapts in a struggle to keep pace with social evolution. This is because under the common law system, the law of the land is made by the courts since it is the manner in which courts interpret statutes that creates the judicial precedents which then is the established law.
A study of how judicial decisions framed or established norms and values which we treasure today and perhaps take unthinkingly for granted can be fascinating.
CAM has embarked on an analysis of a series of such landmark decisions in an attempt to present a hindsight perspective into what exactly happened, the socio-political compulsions of the day and their impact in shaping Indian society and governance today. We hope you enjoy reading this as much as we have enjoyed putting this together.
The case of Kesavananda Bharati v. However, as some of the implications of this case are even now becoming apparent, it is clear that its complexity and lack of clarity on certain important questions left much to be decided by posterity.
While overruling an earlier decision of the Supreme Court in Golak Nath v. State of Punjab Golak Nath , which held that constitutional amendments cannot impinge on fundamental rights, Kesavananda Bharati left the door open to a judicial view on whether any amendment to a fundamental right can be said to amend the basic structure.
The genesis of the dispute leading to Kesavananda Bharati lies in the interpretation of Article of the Indian Constitution, which allows Parliament to amend the Constitution. While the Article itself is unambiguous, the scope and extent of Parliamentary power to modify the Constitution was a highly contested issue, resulting in the Golak Nath judgment wherein the Supreme Court held 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.
As soon as the Golak Nath judgment was pronounced, it was subjected to vehement legal and political criticism. Many considered it a political decision which interfered with the power of Parliament to amend the Constitution. Indira Gandhi nationalised 14 banks, with a provision for minimal compensation.
This decision was immediately challenged in the Supreme Court. Cooper v. Union of India the Supreme Court struck down the Bank Nationalization Act, because of the compensation component of the enactment, while upholding the right of Parliament to nationalise banks. In Madhav Rao Scindia v. Union of India, the Supreme Court again struck down the Presidential order, which resulted in the above abolition. Following these reversals before the Supreme Court, the Indian Government passed numerous Constitutional amendments to supersede the decisions of the Supreme Court: The Constitution 24th Amendment Act, introduced clause 4 in Article 13, protecting Article from the action of Article Clauses 1 and 3 were also added to Article , 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 Constitution 25th Amendment Act, modified Article 31 of the Constitution, expanding the power of the Government to acquire private property. The Kesavananda Bharati Case Kesavananda Bharati involved six different writ petitions by a number of petitioners who represented the propertied class, land proprietors opposed to land ceiling laws, sugar companies in Maharashtra, coal mining companies and former Princes seeking to preserve their earlier privileges. The writ petitions questioned whether there were limitations on the power of Parliament to amend the Constitution, particularly the fundamental rights, as decided in the Golak Nath case.
A bench of 13 judges was constituted to hear the matter. Eleven separate judgments were pronounced orally in court. The only provision that was struck down was that portion of the Constitution 25th Amendment Act, which denied the possibility of judicial review. Aside from the limit imposed on the ability of Parliament to alter the basic structure, the case was an overall success for the Government.
As a reaction to this judgment, the Government elevated Justice A. Ray to the office of Chief Justice despite there being three other judges, who were senior to him, on the bench at the time.
Many new judicial appointments were also made, and, in , with eight new judges on the bench and an emergency having been declared, Chief Justice A. Ray set up a bench of 13 Judges to review Kesavananda Bharati. The hearing of the case began on 10 November and the matter was argued for over two days. On 12 November , Chief Justice A. Ray unilaterally dissolved the bench as it was discovered that no review petition had been filed and the review had been initiated over an oral request, making the review process improper.
In such circumstances, the basic structure doctrine survived and no further judicial review of the decision was attempted again. Justices Shelat and Justice Grover, in their common judgment, focused on individual dignity, along with the unity and integrity of the nation, to establish the basic elements of the Constitution. They identified two basic objectives of the Preamble: to set up a sovereign democratic republic, and to secure the citizens of India the rights mentioned in the Constitution.
Justice Jaganmohan Reddy held that the essential structural elements of the Constitution, such as the sovereign democratic republican nature of the Constitution, social, economic and political justice, liberty of thought, expression, belief, faith and worship, and the equality of status and opportunity could not be amended. Justice Khanna, on the other hand, held that the basic structure only referred to the broad outlines of the Constitution and not any specific provision or detail of the Constitution.
As such, he rejected the idea that the fundamental rights provisions or the Preamble could not be amended, as well as rejecting inherent limitations based on natural rights or cherished values like liberty, democracy and equality. Another point of departure between the Judges in the majority related to their conclusion as to the amended Article 31C of the Constitution.
Five of the majority judges held that the entirety of Article 31C, which was added to the Constitution by the 25th Amendment, was void. Justice Reddy separated parts of the same Article to hold it valid, and only Justice Khanna held that the first part of Article 31C was valid while the second part was void.
It was only in subsequent decisions of the Supreme Court, starting from Indira Gandhi v. Consolidation of the Basic Structure Doctrine The inherent ambiguity of the doctrine, as well as that of the ratio in Kesavananda Bharati, resulted in various challenges both to and under the doctrine before the Supreme Court.
The period following Kesavananda Bharati was one where the doctrine has evolved on a case-to-case basis, resulting in a gradual expansion of the doctrine. In Indira Gandhi v. In Minerva Mills v. Union of India, the Parliament, through the Constitution 42nd Amendment Act, , attempted to circumvent Kesavananda Bharati by making Parliamentary power unlimited.
The Court in this case struck down the amendment on the ground that the judicial review of Parliamentary enactments, and the limitation of Parliamentary power to amend the Constitution, were themselves part of the basic structure of the Constitution. From onwards, the courts have interpreted and expanded the doctrine to include judicial review of decisions by the High Court and Supreme Court under Articles and 32, secularism and federalism, the freedoms under Article 19, judicial independence, and recently, judicial primacy in the judicial appointment process to the basic structure and framework of the Constitution.
However, it was not until much later that the Supreme Court ruled on the question of whether an addition to the Ninth Schedule would make the listed statute immune from the requirement of not infringing on a fundamental right. Coelho v State of Tamil Nadu the Supreme Court held that all laws were subject to the test of being consistent with fundamental rights, which are a part of the basic structure.
Conclusion Debates and discussions on the limits on a legislative body to amend a Constitution are neither novel nor unique. Thomas Jefferson strongly believed that however great a written Constitution may be, experiences and changes in society would necessitate corresponding changes to the written text, with each generation having the right to determine the law under which they live.
What the Supreme Court faced in was a struggle for supremacy. But it also conceded to Parliament the widest latitude to institute socio-economic policies. It refused to recognise the right to property as a basic feature of the Constitution, overruling Golak Nath and paving the way for land reforms.
Prior to Kesavananda Bharati, nearly 30 Constitutional amendments had already been passed since the Constitution came into effect in , and there have been nearly 70 amendments since Kesavananda Bharati. However, despite the larger number of amendments made to the Indian Constitution, the hopes and ideas of its framers remain intact and identifiable as the Constitution adopted by the Constituent Assembly in Golak Nath v.
Maharajadhiraja Madhav Rao Scindia v. Sampath Kumar v. Chandra Kumar v. Bommai v. Coelho v. Union of India, 4 SCC
Kesavananda Bharati v. State of Kerala and The Basic Structure Doctrine
Sikri, K. Hegde, A. Mukherjea, J. Shelat, A. Grover, P.
Kesavananda Bharati Vs. State of Kerala – Case Summary
Over the centuries, the singular truism which is well recognized is that the guidelines or laws to be enforced, cannot be mired in time and need to evolve so as to be relevant to the prevailing social and moral context. This truism requires constant change, which like all change is disruptive. History therefore inevitably reveals turbulence and conflict as the legal framework slowly adapts in a struggle to keep pace with social evolution. This is because under the common law system, the law of the land is made by the courts since it is the manner in which courts interpret statutes that creates the judicial precedents which then is the established law.