50 years of the unprecedented case of Kesavananda Bharati v. State of Kerala and the ‘Doctrine of Basic Structure’

Preamble declaring India as ‘Sovereign, Democratic and Republic.’

Preamble betokens that which follows. It is a preliminary statement, a preface, prelude.¹ The Preamble of the Constitution set out aims and aspirations of the people of India which have been translated into various provisions of the Constitution. Preamble is in conformity with the provision of the Constitution and in a few words expresses the philosophy of the Constitution. The power to amend the Constitution must be exercised within the bounds of the Constitution and should not be exercised so as to destroy or abrogate the basic structure or framework of the Constitution. Sovereignty cannot, therefore, be located in Parliament.²

For some time, it was assumed that the Preamble to the Constitution was not a part of the Constitution. But in view of the fact that unlike any other statute, whose Preamble is not presented in and passed by the enacting body, the Preamble to the Constitution was the first to be introduced in and the last to be adopted by the Constituent Assembly, the Supreme Court in Kesavananda Bharati v State of Kerela³ held that it was a part of the Constitution.⁴

BACKGROUND

‘The Doctrine of Basic Structure’ emerged from the landmark case of Shankari Prasad v Union of India⁵, which started a gigantic legal battle between the judiciary and the legislature in independent India.

The issue of consideration which was presented before the Court was ‘Whether the Fundamental Rights could be amended under Article 368 of the Constitution?’

Validity of the First Amendment of the Constitution in the year 1951 was challenged in this case which curtailed the Right to Property. The Supreme Court upheld the First Constitutional Amendment in the present case, however, over the years it kept oscillating between the question whether Parliament could amend Fundamental Rights through Article 368 or not.⁶

In the case of Sajjan Singh v. State of Rajasthan⁷ Justice J.R. Mudholkar theorized the concept that the Constitution of India had basic features. He questioned ‘whether making a change in the basic feature of the Constitution of India could be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution, and if it fell within the latter, would it be within the purview of Article 368?’

In this case, 17th Constitutional Amendment Act, 1964 was challenged wherein the Supreme Court had upheld Shankari Prasad (Supra) and stated that Article 368 of Constitution of India empowered Parliament to amend any Article of the Constitution. It was also stated that Article 13 was limited to the Ordinary Laws. However, Justice M. Hidayatullah and Justice J.R. Mudholkar passed dissenting opinion and stated that Fundamental Rights were really fundamental which were not intended to be within the powers of amendment with other parts of the Constitution and without the concurrence of States. The said dissenting opinion gave rise to the biggest battel in Constitutional History since independence.⁸

In the case of I.C. Golaknath v State of Punjab⁹, the general premise was Justice J.R. Mudholkar’s opinion on the basic feature which went to become the basic premise in the Kesavananda Bharati case (Supra). The majority opinion in Golaknath (Supra) reflected the uneasiness and skepticism in their minds about the then course of Parliament. The majority raised a very serious question over the State that when rights mentioned under Part III could not be affected by Parliament’s unanimous bill, then even simple or special majority votes could not do so. On the other hand, the minority opinion followed the earlier law laid down in Shankari Prasad case (Supra), thereby holding that Parliament had the power to amend entire Constitution including Fundamental Rights.¹⁰

After the unprecedented decision of Golaknath (Supra) case, Parliament passed series of Amendments (24th, 25th and 29th Amendments) to indirectly overrule the said decision 24th Amendment 1971

The decision in the Golaknath (supra) judgment stated that every amendment under Article 368 would be hit by the exception of Article 13 which stated that in any law which violated the provision of Fundamental Rights, then that law would be void to the extent of the violation. This Article played a crucial role in ensuring that Parliament would be bound by the Fundamental Rights while exercising their law-making power. To neutralize this Article, Parliament, by way of an amendment, added Clause (4) to Article 13, which overrides the provision that any amendment under Article 368 would not be challenged under Article 13 of the Constitution. In order to remove all existing ambiguity, Parliament added clause 3 to Article 368 stating that “Nothing in Article 13 shall apply to any amendment made under this Article.” Parliament went on to amend Article 368(2) by differentiating between the procedure in an Amendment and an Ordinary Law. Post the Amendment, the President could not refuse or withhold the Amendment.¹¹

25th Amendment 1972

Earlier, Article 31 of the Constitution provided Fundamental Rights to Property and expressed that any person whose property was acquired by the Government was entitled to adequate compensation. By way of the 25th amendment, Parliament curtailed the Fundamental Rights to Property and substituted the word ‘compensation’ with ‘amount’ which indicated that Government would be liable to pay a nominal amount in case of acquisition of property for public purpose. Article 19 (1)(4) was disassociated with Article 31(2). Further, Article 31 (c) was added stating that any law passed to implement the objectives under Article 39 (a) and (b) could not be questioned, challenged, or reviewed before the Court of law for violating Fundamental Rights under Article 14,19 and 31.

Though by way of the 44th amendment, Parliament changed the Right to Property as a Constitutional Right under Article 300A from a Fundamental Rights.¹²

29th Amendment 1972

By way of 29th Amendment, Parliament inserted Kerela Land Reforms (Amendment) Act, 1969 and Kerela Land Reforms (Amendment) Act, 1971 in the 9th Schedule of the Constitution which made it outside the purview of judicial scrutiny. The 9th Schedule through Article 31A and 31B of the Constitution contains a list of Central and State laws which fell outside the jurisdiction of judicial review.¹³

What happened in Kesavananda Bharati v State of Kerela?

In a 13 Judge Bench¹⁴, only 9 judges signed the order, and the holding of the majority was clear on the aspect that under Article 368 of the Constitution, Parliament could not alter the ‘basic structure or framework’ of the Constitution but the same could not be stated with confidence regarding the Fundamental Rights as they were outside the scope of amending power.

While commenting on the nature and features of the Constitution of India and exploring the scope and ambit of the amending power of Parliament, Justice Hegde and Mukherjea stated that our Constitution contains certain features which were so essential that they could not be changed or destroyed from within.

In the case of Kesavananda Bharati case (Supra), the petitioner had challenged the validity of many Central and Sate Amendments which included the Kerala’s Land Reforms which permitted the government to grab hold of land. This case also challenged the validity of the 24th and the 25th Constitutional Amendment along with the 29th Constitutional Amendment and contended that such amendments were directly in violation of their Fundamental Rights. By way of this landmark case, ‘Doctrine of the Basic Structure of the Constitution’ emerged. In a 13- Judge Bench, the validity of the 29th Constitutional Amendment was upheld by 7 Judges, which indicated that its validity was not upheld unconditionally. It was held that Parliament could amend every provision of the Constitution which was subject to the condition that it does not violate ‘Basic Structure of the Constitution’. The minority opinion was reluctant to grant complete and unfettered authority to Parliament with respect to power of amendment. The Court upheld the entire 24th Constitutional amendment and partly found the 25th Amendment to be ultra vires.

Justice K.S. Hegde and Justice A.K. Mukherjea explained that the Constitution of India was not merely a political document but was a social document based on social philosophy. Every philosophy like religion contains features that were basic and circumstantial. While the former could not be altered, the latter could have. It was upon the Courts to see whether a particular amendment violates Basic Structure or not.

Conclusion

The decision, which ran into 700 pages, stated that neither Parliament’s obligations were hindered nor were the rights of the citizens violated. This decision overruled the preceding cases vis-à-vis Shankari Prasad, Sajjan Singh and Golaknath which became the standard rule to check violation of constitutional provisions.

FAQs

Q. What happened in the case of Kesavananda Bharati case?

A. The 13-Judge Constitution Bench in a 7:6 ratio gave birth to the ‘Doctrine of Basic Structure’ of the Constitution which impeded the power of Parliament to amend the Fundamental Rights.

Q. Who is Kesavananda Bharati?

A. Srimad Jagadguru Sri Sri Sankaracharya Thotakacharya Keshavanada Bharathi Sripadangalavaru was a Hindu monk who served as the Shankaracharya of Edneer Mut, a Hindu monastery in Kasaragod district, Kerela, India from 1961 until his death in 2020. He was the petitioner in Kesavananda Bharati v State of Kerela, a landmark case that helped emergence of Doctrine of basic structure of the Indian Constitution vis-a-vis parliamentary amendment. He died in Kasaragod, Kerela on 06-09-2020 at the age of 79 due to Cardiac arrest.

Q. What is the Doctrine of Basic Structure?

A. The Doctrine of Basic Structure is a common law legal doctrine which is the most fundamental judicial principles connected with the Indian Constitution. It states that the the Indian Constitution had a basic structure, and the Parliament of India cannot amend the same. It was in the case of Kesavananda Bharati v State of Kerela wherein it was observed that the Parliament could amend any part of the Constitution so long as it did not alter or amend the essential features of the Constitution