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Analysing the Doctrine of Basic Structure in Keshavananda Bharti Case

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The judgement of Keshvananda Bharti v. State of Kerala (1983) 4 SCC 225 provides that the fundamental rights cannot be taken away by amending them. The amendments would not violate the basic structure of the constitution. The case drew a line by observing that there are certain parts in the constitution, that even cannot be touched by the parliament.

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Understanding the Case 

The case was chiefly about the extent of the authority of the parliament to change the constitution. First, in Golaknath v. State of Punjab, the court reviewed a 1967 decision which ruled, the previous verdicts, that Parliament could not amend fundamental rights.
Secondly, the court took the matters on the constitutional validity of some other amendments. In particular, the right to property had been abolished as a constitutional right, and Parliament had also granted itself the power to amend any section of the Constitution and enacted a law which could not be reviewed by the courts.

Politically, the case reflected Parliament’s battle for dominance led by then Prime Minister Indira Gandhi.

Facts of the case 

Keshvanand Bharati was the leader of Edneer Mutt, a religious group in the Kasaragod district of Kerala. Keshvananda Bharti had some parcels of land in the sect that he owned in his name. The State Government of Kerala enacted the Land Reforms Amendment Act of 1969. According to the act, the government was entitled to acquire some of the land of the religion, the chief of which was Keshvanand Bharti.

Keshvananda Bharti moved to the Supreme Court on 21 March 1970 pursuant to Section 32 of the Indian Constitution for the enforcement of his rights guaranteed under Article 25 (Right to practice and propagate religion), Article 26 (Right to conduct religious affairs), Article 14 (Right to equality), Article 19(1)(f) (Freedom to acquire property), Article 31 (Compulsory Acquisition of Property). When the petition was still under consideration by the court, the government of Kerala had taken another action, i.e. Kerala Land Reforms (Amendment) Statute, 1971.

Following the landmark case of Golaknath v. State of Punjab, the Parliament introduced a series of amendments to overrule the judgement of the Golaknath case. The 24th amendment was adopted in 1971, and the 25th and 29th amendments were subsequently adopted in 1972. The following changes were made following the case of Golaknath, which was questioned in the present case:

24th amendment

In the case of Golaknath, it was mentioned in the judgement that any amendment made under Article 368 will be taken as an exception under Article 13. Therefore, in order to neutralize this influence, the Parliament, by amending Article 13 of the Constitution, has annexed clause 4 so that no amendment can have an effect under Article 13. In order to eliminate any ambiguity, the Parliament added clause 3 to Article 368, which reads as follows: ‘Nothing in Article 13 shall refer to any amendment made pursuant to that article.’
In the case of Golaknath, the majority decided that Article 368 contained earlier a clause in which the process of amendment had been defined and not the power to do so, with a view to adding the word power in the Article, Article 368 had been amended and the word power added to the Marginal Notice.

The Parliament has tried, by means of an amendment to Article 368, to distinguish between the procedure in the amendment and the ordinary law. Previously, the President may use his authority to reject or withhold a bill of amendment. After the 24th amendment, the President had no option to reject or withhold a bill. This was achieved by the Parliament in order to defend the amendment from the exception referred to in Article 13 of the Indian Constitution.

29th Amendment

In 1972, the 29th amendment was adopted. It incorporated into the 9th Annex the Kerala Land Reform Act. The object is to eliminate the scope of the judicial proceedings from the Kerala Land Reforms Act.

All the changes made by the Central Government in some way covered the State Government’s amendments from being brought before the Court of Justice. In the Court of Justice, the provisions of the Kerala Land Reforms Act along with the amendments 24th 25 and 29th were challenged.

Contentions of the petitioner

The petitioner argued that the Parliament cannot amend the Constitution in any way it wants, as it has limited power to do so. The Parliament cannot exercise its power to amend the Constitution by changing its basic structure, as was proposed by Justice Mudhokar in the case of Sajjan Singh v State of Rajasthan.

The petitioner pleaded for the protection of his property in accordance with Article 19(1)(f) of the Indian Constitution. It was argued by him that the constitutional amendments of the 24th and 25th violated the fundamental right provided for in Article 19(1)(f) of the Indian Constitution.

Fundamental rights are rights available to Indian citizens to ensure freedom, and if such right is taken away by any constitutional amendment, the freedom guaranteed to its citizens under the Constitution shall be deemed to be taken away from them.

Contentions of the Respondent

The state was the respondent. The State argued that the fundamental principle of the Indian Legal System is the Supremacy of Parliament and thus the Parliament has the power to amend the Constitution without limitation.

The State also contended that it was important for Parliament to exercise its power to amend the Constitution without limitation in order to fulfil its socio-economic obligations guaranteed to the citizens of India pursuant to the Preamble.

Verdict

The landmark judgement was delivered by a thin majority of 7:6 on 24 April 1973, in which the majority held that any provision of the Indian Constitution could be amended by Parliament in order to fulfil its socio-economic obligations guaranteed to citizens as set out in the Preamble, provided that such an amendment did not alter the basic structure of the Constitution.

However, in their dissenting opinion, the minority were wary of giving the Parliament unlimited powers of amendment. The court held that the entire validity of the 24th Constitutional Amendment was valid. But the second portion of the 25th Constitutional Amendment was found to be ultra-vires. Article 31C was declared unconstitutional and invalid by the Supreme Court on the ground that judicial review is a basic structure and can therefore not be removed. The court upheld the amendment that removed the fundamental right to property, despite the ruling that Parliament cannot violate fundamental rights. The court held that the amendment would not, in spirit, violate the Constitution’s basic structure.

Each judge defined separately what he thought were the fundamental or necessary characteristics of the Constitution. Within the majority view, there was no unanimity of opinion either.

Sikri and C.J, clarified that the basic structure definition included:

  • Constitution supremacy.
  • The democratic and republican form of government.
  • The Constitution’s secular essence.
  • Division of powers between parliament, the executive and the judiciary.
  • The Constitution’s Federal Character.

From Shelat, J. Grover, J. provided two more basic features to this list:

  • The mandate found in the Directive Principles of State Policy to create a welfare state.
  • The nation’s stability and dignity.

Hegde and J. With Mukherjea, J. said that a separate and shorter list of basic features has been identified:

  • The domination of India.
  • The democratic essence of politics.
  • The country’s unity.
  • Critical characteristics of individual freedoms given to people.
  • Mandate to create a welfare state.

Reddy Jaganmohan, J. claimed that elements of the fundamental characteristics were to be found in the preamble. The Constitution and the provisions they have translated into, such as:

  • Democratic Sovereign Republic.
  • The Democracy in Parliament.
  • Three Public organs.

He said that without basic liberties and freedoms, the Constitution would not be itself. Principles of Directive. Just six judges on the bench (hence a minority view) accepted that the basic rights of the judges were fundamental. The person was a part of the basic framework and it could not be changed by Parliament.

Basic Structure Doctrine

Amended to protect some basic laws after the Nazi regime. The new German Constitution, learning from that experience, introduced substantive limits on the powers of Parliament to amend certain parts of the Constitution which it considered to be ‘basic law. In India, the doctrine of the fundamental structure has formed the foundation of judicial review of all laws passed by Parliament. The fundamental structure cannot be influenced by any statute. What the fundamental framework is, however, has been an ongoing deliberation Parliamentary democracy, fundamental rights, judicial review, secularism-all of which are kept by the courts as a fundamental framework, not an exhaustive list. The judiciary is responsible for deciding what constitutes the fundamental framework.

The view of the minority in the case

Justice A.N. Ray’s minority view (whose appointment to the position of Chief Justice)
soon after the Kesavananda pronunciation, over and above the heads of three senior judges verdict, Judge M.H. Beg, Judge K.K. Mathew (are generally considered to be politically motivated) Justice S.N. Dwivedi both decided that Golaknath had been wrongly determined. They have upheld the validity of the three amendments which were questioned before the court.

Oh. Ray, J. concluded that all parts of the Constitution was necessary and there could be no difference between its essential and its non-essential components. All of them decided that by making substantial changes to the Constitution, Parliament could make to exercise its authority pursuant to Article 368.

In summary, in Kesavananda Bharati, the majority verdict acknowledged the power of Parliament of amending any or more of the provisions of the Constitution, so that such an act would not destroy its fundamental provisions. There was, however, no unanimity of opinion about what appoints the fundamental framework. Even though by restoring the position of Sankari Prasad (1952), the Supreme Court very nearly returned to the position of the dominance of the amending power of Parliament, in addition, increased the power of judicial review.

The Judgment’s Implications

Politically, the judiciary faced the highest litmus test against the executive as a consequence of the verdict. The government skipped the decision and replaced three judges.

The Forty-second amendment was challenged before the Supreme Court by the owners of Minerva Mills (Bangalore), a disabled manufacturing company nationalized by the government in 1974, within less than two years of restoring Parliament’s amending powers to almost absolute terms. The theory of the basic structure was reaffirmed in the Minerva Mills and later in the 1981 case of Waman Rao.


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