Whenever there is a debate on the topic of the basic structure of the constitution, there is a mention of the Kesavananda Bharati Case. That’s because it is a landmark decision of the Supreme Court of India. It’s only because of the Kesavananda Bharati case, which brought into light the idea of basic structure of the Constitution. And one of the reasons it is a landmark case is because it was heard by a bench of 13 judges, biggest one so far.
Power kills power; and that’s what this case exemplifies. There have always been tensions among the executive and judiciary in our country, and they will continue to thrive. What helps keep the governments under check is the power vested in the judiciary. As we delve deeper into the topic, we shall understand how essential it is for any democracy to have these checks and balances on the government of the land.
Let’s have a look at how this case came into being and why this judgement is still an important part of the Indian polity.
Background
If we go back to the 1960s, the state of Kerala had begun an initiative to distribute the excess land from the large landowners to the poor and needy. The government of Kerala had passed the Kerala Land Reforms Act,1963 placing a cap on the amount of land one could hold and further paving the way for the government to acquire the excess land from the landowners and redistribute it to the poor and those without any land.
Then in the year 1970, the state government passed the Kerala Land Reforms Amendment Act, 1969, which had its own set of restrictions for the landowners. It had imposed the said limits on the ownership of land owned by the religious institutions. This was the nail in the coffin as Kesavananda Bharati, head of the Edneer Mutt in the Kasargod District of Kerala, owned a piece of land which had come within the scope of the Kerala Land Reforms Amendment Act, 1969.
As the case progressed, the government of India passed certain amendments to the Constitution of India, and they became the subject matter here as well. These amendements were:
24th Amendement
Enacted on 5th November 1971, this controversial amendment came in the backdrop of Goalknath case. It had a purpose; to widen the scope of parliamentary powers to amend the constitution and reduce the impact of judicial interpretations. The Supreme Court had in the Golaknath case held that the parliament could not take away the fundamental rights through constitutional amendments. And it did not sit well with the then government of India. Thus, the amendment- to nullify the supreme court’s judgement. It also left the President with no other choice but to give assent to the bills passed by the parliament.
You may read the text of the amendment here.
This was followed by 25th amendment, which gave even more wider powers to the parliament to bring about changes to the constitution without any judicial interference. Let’s have a look at it.
25th Amendement
Through this amendment, the government had freed itself from the shackles compensating the landowners in case it acquires their land. This was done by inserting clause “2” to the Article 31A which provided the government the immunity from giving fair compensation for acquiring the property in the public interest or any agrarian measures. And it further reduced the judiciary’s power to intervene.
Ever further, a whole article, Article 31C was added to the constitution which provided for the protection of laws meant to implement the Directive Principles of State Policy from judicial review.
29th Amendment
With the 29th Amendment Act, the government made two entries to the Ninth Schedule of the Constitution. These were:
- Kerala Land Reforms (Amendment) Act, 1969 and
- Kerala Land Reforms (Amendment) Act, 1971.
This was done because the state government was facing serious legal issues with its implementation. And even these amendments to the principal act of 1963 were brought to mitigate the issues. These were also challenged before the High Court of Kerala, which had upheld the scheme of land reforms, but struck down some of the crucial provisions of the law. This was further challenged before the Supreme Court, which had concurred with the High Court’s view. The government though, was not in the mood to listen to the courts. And it also feared that the Supreme Court’s judgement may provoke a lot of litigants to come to the courts. Thus, these were added to the Ninth Schedule to give them the protection under Article 31B.
Petitioner’s Arguments
The petitioner was of the view that the parliament did not have the power to amend the constitution as per its whims. It was also contented that the state’s power to exercise the provisions of Article 368 could not be unlimited; since it could then be misused. The petitioner shed light on the concept of basic structure and argued that it must remain intact at all times. What stood out was the contention that the fundamental rights of the citizens as enshrined in the Constitution could not be abrogated under the garb of an amendment to the constitution.
Rival Submission by the Respondent
As the case progressed, the respondent raised the point of the Kerala Land Reforms Act being good as it promoted social justice to the poor by imposing reasonable restriction on the right to property. Contrary to the petitioner’s argument, the state also pointed out that it had full control when it came to bringing changes to the Constitution. It was mentioned that the term “amendment” meant to add, modify, change, repeal or abrogate any part of the Constitution.
Arguments by the Intervenors
Since the Kesavananda Bharati case had the question that could change the Indian legal system forever, it brought many eminent personalities to argue. In addition to the petitioner and respondent, there were a number of intervenors. Some of them were in favour of the petitioner while others favoured the respondent. Some were of the view that the act was a necessary measure in order to bring social justice, others were in strong opposition and argued that these acts and amendments violated the fundamental rights of the citizens.
Judgement
In what came to be a landmark case in the constitutional history of India, the Supreme Court, in a 7-6 majority, held that the parliament did not have the unlimited power to amend the constitution. It further held that the Constitution of India has a basic structure which cannot be altered by way of constitutional amendments. The 13-judge bench went on to say that while the government viz-a-viz the parliament had the power to amend the constitution under Article 368, it did not have the power enough to dismantle its basic features.
Clause (1) of the Article 13, which was inserted by way of the 24th Amendment Act was upheld by the Supreme Court to the extent that the parliament could bring about any change to the constitution so long as it did not interfere with the fundamental rights vested in the citizens of India and also the basic structure of the constitution.
Aftermath
While this does not relate directly to the case at hand, it sure has its roots there. Justice A.N. Ray, who was among the 6 dissenters in the Kesavananda Bharati case was named the Chief Justice of India even when three judges senior to him were still in the office. Those three judges, all of whom had given the majority judgement, were Justice J.M. Shelat, Justice K.S. Hegde and Justice A.N. Grover. This was the first time in the Indian history when not jusT one, but three senior judges of the Supreme Court were bypassed to nominate a junior as the Chief Justice.
