Richa Chhabra
The object and aimof this article is to throw light on the jurisprudence developed in the most famous case of Keshavananda Bharti v State of Kerala hereinafter referred as Keshavananda Bharti Case. It provides the facts in brief and further, deals with precedent ruling of Golak Nath v State of Punjab. It further mentions the key findings of the thirteen judge bench with what termed as “Basic Features” and overruling of the precedent. The study, basically, focuses on the novel concept-“Basic Structure Doctrine” put forward by the distinguished Judges along with deliberations made on the scope, limitations and ambit of amending power of the Parliament while deciding this monumental and highly disputed case.
The case ofHis Holiness Kesavananda Bharati Sripadagalvaru and Ors.v. State of Kerala and Anr.[1] (Kesavananda Bharati) is one of the most significant and landmark rulings by the Supreme Court of India (Supreme Court) in Indian legal history, which has played a remarkable and creative role in keeping check and balance between Parliament and Judiciary.
In February 1970, Swami Kesavananda Bharati, the aggrieved and head of EdneerMatha – a Hindu Mutt situated in Kerala, challenged the constitutional validity of 24th, 25th, 26th and 29th Amendment Act when the Kerala Government attempted to impose restrictions on the management of property through land reforms Act. The writ petitions involved in this highly disputed case,further questioned whether there were any limitations on the power of Parliament to amend the Constitution, particularly the fundamental rights, as decided in the prior precedent Golak Nath v. State of Punjab[2] (Golak Nath).
The Golak Nath case had held that fundamental rights were beyond the amending powers of Parliament. In addition to that, it also laid down that Article 368 merely lays down the procedure for the purpose of amendment.
A bench of 13 judges, the largest bench so far, was constituted to hear the Keshavnanda Bharti matter. The court by a majority of 7:6, after hearing case for a period of about 68 days, held that “Verdict of Golaknath Case was not correct and Government can amend the fundamental rights by the virtue of Article 13(4) and Article 368(3), and the Constitution by Article 368, but without changing the basic structure and nature of the Constitution.”
Eleven separate judgments were pronounced orally andthe majority decision was delivered by Sikri C.J., K.S. Hegde, B.K. Mukherjee, J.M. Shelat, A.N. Grover, P. Jagmohan Reddy JJ., & Khanna J. concurring with the majority. This judgment overruling Golak Nath didn’t concede absolute or unfettered power to the Parliament with respect to amendment in the Constitution giving birth to the concept of Basic Structure Doctrine.
The court found that the word “amend” in the provision of Article 368 stands for a restrictive connotation i.e. amendment sought to be made, needs to meet the requirements of Basic Structure theory.
The only provision that was struck down was that portion of the Constitution (25th Amendment) Act, which denied the possibility of judicial review while upholding the Land Reforms Act and the entire 24th and the first part of 25th Amendment Act that had been challenged.
Though, it refused to recognise the right to property as one of the essential structural and basic feature; thereby providing the sufficient necessary flexibility to the Parliament to fulfil their socio-economic obligations to create a welfare state, subject to non-violation of essential features and fundamental provisions of the Constitution.
It was opined that the 24th Amendment (which was made to overcome the SC judgement in the Golak Nath case) merely expressed those limitations which could be read into unamended Article 368 itself, the very boundary within which the Parliament has been allowed to amend every Article of the Constitution. In that light, it also had the effect of providing the Parliament to amend even Fundament rights as long as they are in concurrence with the Basic Structure theory.
According to Sikri, C.J., the basic structure of the Constitution consists of following features: (a) Supremacy of Constitution, (b) Republican and Democratic form of Government, and sovereignty of country, (c) Secular and federal character of Constitution, and (d) Separation of powers between Legislature, Executive and Judiciary.
Shelat and Grover,J.J, also included the ‘fundamental rights’ and ‘Directive Principles’ in the basic structure whereas the remaining 6 judges (Ray,Palekar, Mathew,Beg, Divedi and Chandrachud) held that there are no limitations, express or implied, on the amending power. They further went on stating that the power is wide enough to erode the Constitution completely step by step so as to replace it by another Constitution.
The majority bench inGolak Nath casewas of the opinion that, no fundamental right (given under Part III) could be taken away or abridged while amending any given provision in the Constitution in order to ensure and enhance the protection of basic rights of the people from the current or any government in future seeking direct or indirect, undemocratic access of the powers.
Later on,it got struck down with pronouncement of Keshavananda Bharti judgment, granting in a way, more wider aspect to it, that not only Fundamental Right but any provision, if not found in adherence to essential basic features is subject to amendment to the extent of its incoherence. Also,it has been held and left for the court to decide whether a fundamental right is a basic feature or not. If it so, then it cannot be abrogated.
The Basic Structure Doctrine has since then gained wide acceptance in the Indian legal system.It has been appreciated and relied upon in numerous subsequent rulings, for instance,in Indira Gandhi v Raj Narain case[3], the same has been used to read down the 39th Amendment wherein the Supreme Court added some more features as ‘basic features’ to the list laid down in Keshavnanda Bharti case, which are: Rule of law; Judicial Review; free and fair elections; Jurisdiction of Supreme Court under Article 32and similarly, in the case of Minerva Mills[4], the42nd Amendment was struck down.
Bottom-line: The Basic Structure Doctrine, in true terms, is the protector of the essence of the Constitution of India which cannot, at any cost, be done away with even though the list is not yet exhaustive.
[1]AIR 1973 SC 1461
[2]1967 AIR 1643, 1967 SCR (2) 762
[3]975 AIR 865, 1975 SCR (3) 333
[4]Minerva Mills Ltd. and Ors. v. Union Of India and Ors.[ AIR 1980 SC 1789]
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