Kesavananda Bharati, the head of the Edaneer Mutt in Kasargod passed away recently. He will forever be remembered for the legal challenge that he mounted against the government of Kerala, which is considered by the majority of legal scholars as to the greatest constitutional case in India’s judicial history.
About the case
By a 7-6 majority judgment delivered in ‘His Holiness Kesavananda Bharati Sripadagalvaru and Ors. Vs. State of Kerala and Anr’, a 13-judge Bench of the Supreme Court ruled on April 24, 1973 that the “basic structure” of the Constitution is inviolable, and cannot be amended by Parliament. The basic structure doctrine has since been regarded as a fundamental tenet of Indian constitutional law.
What did the judgement say?
- The court held that under Article 368 of the Constitution, which provides Parliament amending powers, something must remain of the original Constitution that the new amendment would not change.
- But while the judgment established the doctrine of basic structure and ruled that Parliament had no power to alter it, the court did not define basic structure itself.
- It only listed a few principles — among them, federalism, secularism, and democracy. Since then, the court has been adding new features to this concept.
- ‘Basic structure’ is today widely interpreted to include the supremacy of the Constitution, the rule of law, independence of the judiciary, doctrine of separation of powers, federalism, secularism, sovereign democratic republic, the parliamentary system of government, the principle of free and fair elections, welfare state, etc.
- In the early years of Independence, the Supreme Court conceded absolute power to Parliament in amending the Constitution, as was seen in the verdicts in Shankari Prasad (1951) and Sajjan Singh (1965).
- The reason for this is believed to be that in those initial years, the apex court had reposed faith in the wisdom of the then political leadership, when towering luminaries of the Indian freedom movement were serving as Members of Parliament.
- In subsequent years, however, the Constitution was amended by governments at will to suit partisan political interests. The Supreme Court in Golaknath (1967) held that Parliament’s amending power could not touch the Fundamental Rights, and that this power lay only with a Constituent Assembly.
- In the early 1970s, the government of then Prime Minister Indira Gandhi enacted major amendments to the Constitution (the 24th, 25th, 26th and 29th) to get around the judgments of the Supreme Court in RC Cooper (1970), Madhavrao Scindia (1970) and Golaknath (1967).
- In RC Cooper, the court had struck down Indira’s bank nationalisation policy, and in Madhavrao Scindia, it had annulled the abolition of privy purses of the rulers of former princely states.
- All the four amendments — 24th (fundamental rights, 1971), 25th (property rights, 1972), 26th (privy purses, 1971), 29th (land reform acts, 1972) — as well as the judgment in ‘I C Golaknath & Ors vs State of Punjab and Anr’ (1967), came under challenge in Kesavananda Bharati, in which the petitioner sought relief against the Kerala government vis-à-vis two state land reform laws.
- Since Golaknath was decided by Bench of 11 judges, a larger Bench was required to test its correctness, and thus 13 judges formed the Kesavananda Bench. Nani Palkhivala, Fali Nariman, and Soli Sorabjee presented the case against the government.