Keshvananda Bharti vs State of Kerala- The emergence of basic structure doctrine

In the last blog of this landmark case series, I had spoken how in the Golaknath case it was decided that Parliament has no right to amend Fundamental Rights. This particular case was partially overturned in another important case that cemented the position of Basic structure doctrine in the Indian legal system. The case was Keshvananda Bharti vs State of Kerala.

The case was recorded in history for three major reasons:

1. This case had the highest number of judges presiding over the case which was 13.

2. This case partially overturned the decision given in the Golaknath’s case.

3. This was the first case where the Basic structure doctrine was properly implemented in the Indian legal system.

Let’s see what this case was actually about:

Facts of case:

In February 1970, Swami Kesavananda Bharti, senior plaintiff and head of Edneer Matha - a Hindu Matha situated in Edneer, a village in Kasaragod district of Kerala, challenged the Kerala government's attempts, under two-state land reform acts, to impose restrictions on the management of its property. A noted Indian jurist, Nanabhoy Palkhivala, convinced Swami into filing his petition under Article 26, concerning the right to manage religiously owned property without government interference.

This case changed the course of our Indian legal system. This case was so important and special in itself that 13 judges presided over it including notable once such as then Chief Justice of India S.M Sikri, Jaganmohan Reddy, HR. Khanna, Y.V Chandrachud, etc.

Judgement in the case:

The hearing of this case lasted for only 5 months, the Judgment was mammoth 200 pages long. Many points from the Golaknath’s case were taken for review again including the validity of the 24th, 25th, 26th and 29th amendments. Judgement was given in ratio of 9:4.

The court, in this case decided in favour of the view that Parliament has the power to amend the fundamental rights. However, the Court affirmed another proposition also asserted in the the Golaknath case, by ruling that the expression "amendment" of this Constitution in article 368 means any addition or change in any of the provisions of the Constitution within the broad contours of the Preamble and the Constitution to carry out the objectives in the Preamble and the Directive Principles. In application to fundamental rights, it would be noted that while fundamental rights cannot be abrogated, a reasonable abridgment of fundamental rights could be affected in the public interest. This meant that the court overturned the view held in the Golaknath case and held that Fundamental Rights can be amended but it should not affect the basic structure of the Constitution. This cemented the doctrine of basic structure in its place in our Indian Constitution.

The true position is that every provision of the Constitution can be amended provided the basic foundation and structure of the Constitution remain the same.

Chief Justice’s view:

S.M Sikri who was the Chief Justice of India when this case was heard formed an opinion that proved to be based upon which the above landmark judgment was passed.

CJI S M Sikri held that the fundamental importance of the freedom of the individual has to be preserved for all times to come and that it could not be amended out of existence. According to the Chief Justice, fundamental rights conferred by Part III of the Constitution of India cannot be abrogated, though a reasonable abridgment of those rights could be affected in the public interest. Accordingly, every provision of the Constitution was open to amendment provided the basic foundation or structure of the Constitution was not damaged or destroyed.

Consequences of this judgment:

The most important aftermath that was faced after passing of this judgement was there were many deemed amendments which were passed by the Parliament after the 24th Amendment was rendered void and invalid and were written off. These articles include-

1. Articles 4 (2), 169 (3) and 239A2 passed in 1962,

2. 244A4 passed in 1969,

3. 356 (1)c, para 7(2) of Schedule V and para 21(2) of Schedule VI

Retaliation by the Parliament:

The fire which was ignited between the Supreme Court and Parliament got even more air after the passing of this judgment. The Government of Indira Gandhi who was then in power did not take these implied restrictions lightly. They took two major steps which are regarded as the answer given by Parliament:

1. On 26 April 1973, Justice Ajit Nath Ray, who was among the dissenters, was promoted to Chief Justice of India superseding three senior Judges, Shelat, Grover, and Hegde, which was unprecedented in Indian legal history. This day was regarded as "the blackest day in the history of democracy". Justice Mohammad Hidayatullah (previous Chief Justice of India) remarked that "this was an attempt of not creating 'forward looking judges' but ‘judges look forward' to the office of Chief Justice".
   

2. In 1976, Parliament passed the 42nd Amendment which was seen as direct retaliation against the Keshvanand Bharti judgment. This amendment gave unlimited power to Parliament to change any part of the Constitution regardless of whether it is Fundamental Rights or any other provision and at the same time it curtailed the power of the Supreme Court and the High Courts. The curtailment of power barred the Apex court from the hearing case which involved the validity of the law. Detail of the 42nd Amendment will be discussed in the upcoming blogs.

This fight between the Supreme Court and the Parliament continued till decades even after this case was decided. With this, I end my blog here. Till then stay safe, stay healthy. OM SHANTI.