The main petitioner, Kesavananda Bharati, of Kesavananda Bharati Sripadagalvaru and Ors vs State of Kerala Case, 1973 (known for the basic structure doctrine of the Supreme Court), died on September 6th 2020 at the age of 79 in Idnir Math due to age-related ailments.

Background of the Case

The events which are leading to Kesavananda Bharti’s case dates back to 1951. Soon after the enforcement of the Constitution, the question was prevalent regarding the extent of amending powers of the Constitution. The prominent question in all the following cases was that whether fundamental rights are amendable and whether the word ‘law’ under Article 13 includes the amending law.

For the first time, the said question was raised in the case of Shankari Prasad Singh v. Union of India AIR 1951SC 458 wherein it was held that the Article 13 does not include the amending law and Parliament can amend the Fundamental Rights. The question of amendment of Fundamental Rights remained dominant in the following case i.e. Sajjan Singh v. Rajasthan AIR 1965 SC 845, in this case also the Apex Court adopted the same view as that of Shankari Prasad’s case. This case was followed by the then largest bench case i.e. I.C. Golaknath v. State of Punjab and Anr. AIR 1967 SC 1643, the 11 judges bench by the majority of 6:5 held that Fundamental Rights are ‘transcendental’ and cannot be amended not even by the amending procedure set out under the Article 368, therefore, the amendment to the Constitution would be a ‘law’ for the purpose of Article 13.

In order to negate the effect of Golaknath’s case the Parliament passed 24th and 25th Amendment was passed by the Parliament.

The highlights of 24th Amendment Act are as follows:

• The Article 13 was amended wherein a clause had been added declaring that Article 13 shall not apply to any constitutional amendment made under Article 368.

• Likewise, a clause had been added to the Article 368 declaring that Article 13 will not apply to the amendments made under Article 368.

• The marginal note of Article 368 was changed from “Procedure for Amendment to the Constitution” to “Power of Parliament to amend the Constitution and Procedure thereof”.

• Furthermore, a non-obstante clause was added to Article 368 which stated that “Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with procedure laid down in this Article.” This clause suggested that Parliament had power to amend any part of the Constitution including the Fundamental Rights.

• It created the differentiation between ordinary law and amendment to the Constitution. In the former case, the President had the choice to give assent whereas in the latter case it was obligatory for President to give assent.

The 24th Amendment Act brought the aforementioned changes and along with that 25th Amendment Act was also passed which thereby amended Article 31 and 39 of the Constitution, as a result of that conflict between Fundamental Rights and Directive Principle and State Policy started.

This chain of events led to the most landmark judgment of Indian History by the largest bench till now i.e. 13 Judges Bench.

Issues

• Whether the 24th Constitutional Amendment Act 1971 is constitutionally valid?

• Whether the 25th Constitutional Amendment Act 1972 is constitutionally valid?

• What is the extent to which the Parliament can exercise its power to amend the Constitution?

Judgement

The 13 judges’ bench by the majority of 7:6 held that the Parliament has the authority to amend any clause of the constitution as long as the amendment does not violate the Basic Structure of the Constitution. However, the apex court upheld the entire 24th Constitutional Amendment Act 1971 but considered the first part of the 25th Constitutional Amendment Act 1972 to be intra vires and the second part to be ultra vires.

Facts of the Case

His Holiness Sripad Galvaru Kesavananda Bharati, the lead petitioner in this case, was the leader of the Edneer Mutt, a religious sect in Kerala’s Kasaragod district. Kesavananda Bharti had some plots of land in the sect that he owned in his name. The Kerala State government enacted the Land Reforms Amendment Act in 1969, which conferred upon the government the right to acquire some of the land owned by Edneer Mutt, of which Kesavanand Bharti was the leader.

On March 21, 1970, Kesavananda Bharti filed a writ petition in the Supreme Court under Article 32 of the Indian Constitution to enforce his rights guaranteed by Article 25 which confers the right to practise and propagate religion, Article 26 which guarantees the right to administer religious affairs, Article 14 provides right to equality, Article 19(1) (f) provides freedom to acquire property, and Article 31 which provides for Compulsory Acquisition of Property. While the petition was still pending the Apex court, the Kerala government passed another act, i.e., the Kerala Land Reforms Amendment Act 1971.

Analysis

The Supreme Court on 24th April 1973 by this landmark introduced the basic structure doctrine. The basic structure doctrine is a blanket doctrine wherein the provisions falling under it cannot be amended. The Apex Court overruled the Golaknath’s case by stating that the Parliament has right to amend any part of the Constitution however, it should not violate the basic structure of the Constitution otherwise it will be invalid.

The Apex Court listed down some of the features to be a part of basic structure which are:

1) Supremacy of the Constitution

2) Republican and democratic form of government

3) Secular character of the Constitution

4) Separation of powers between legislative, executive and judiciary.

5) Federal character of the Constitution.

This list is not exhaustive and in some other cases following characters has been regarded as the basic structure of the Constitution.

1) Free and Fair Election (Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299)

2) Democracy (Kihoto Hollohon v. Zachillhu And Ors 1992 SCR (1) 686)

3) Equality of status and opportunity (Indra Sawhney v. Union of India AIR 2000 SC 498)

4) Fundamental Rights and the Directive Principle and States Policy (Minerva Mills Ltd. v. Union of India AIR 1980 SC 1789)

5) Unity and Integrity (Raghunath Rao v. Union of India AIR 1993 SC 1267)

6) Parliamentary System

7) Secularism (S. R. Bommai v. Union of India AIR 1994 SC 1918)

8) Judicial Review (S. P. Sampath Kumar v. Union of India AIR 1987 SC 386)

9) Rule of Law (Raghunath Rao v. Union of India AIR 1993 SC 1267)

Over the years, the aforementioned features of the Constitution have been held to be the basic structure which means that these are not amendable.

The chain of events leading upto basic structure doctrine can be classified as pre and post Golaknath era. This case is regarded as important because it resolved the problem of amenability of the Constitution for once and for all. It laid down the simple yet complicated notion that anything falling within the basic structure is not amendable; however, what is basic structure is decided by the Courts from time to time as per the need and requirement of the dynamic society. The craft of basic structure is so unique that it still remains fresh and fulfils the need of the society after the 48 years of its pronouncement.

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