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Updated: April 25, 2020 9:35:08 pm
Since the Indian Constitution was first adopted, debates have raged over the extent of power that Parliament should have to amend key provisions.
Exactly 47 years ago, the Supreme Court delivered its landmark ruling in Kesavananda Bharati vs. State of Kerala, considered one of the most important constitutional cases in the judicial history of India.
By a verdict of 7-6, a 13-judge Bank of the Constitution ruled that the “basic structure” of the Constitution is inviolable and that Parliament cannot modify it. The basic structure doctrine has since been regarded as a principle of Indian constitutional law.
Modifying the Constitution
The Constitution of a country is the fundamental law of the land. It is based on this document that all other laws are made and enforced. According to some Constitutions, certain parts are immune to the amendments and are given special status compared to other provisions.
Since the Indian Constitution was first adopted, debates have raged over the extent of power that Parliament should have to amend key provisions.
In the early years of Independence, the Supreme Court granted absolute power to Parliament by amending the Constitution, as seen in the verdicts in Shankari Prasad (1951) and Sajjan Singh (1965).
The reason for this is believed to be that in those early years, the high court had placed its faith in the wisdom of the then political leadership, when the leading freedom fighters served as members of Parliament.
In the following years, as the Constitution was amended at will to satisfy the interests of the ruling dispensation, the Supreme Court in Golaknath (1967) held that Parliament’s amendment power could not touch Fundamental Rights, and this power would be only with a Constituent Assembly.
The fight between Parliament and the judiciary
In the early 1970s, then Prime Minister Indira Gandhi’s government had enacted major amendments to the Constitution (24, 25, 26, and 29) to overcome the Supreme Court rulings in RC Cooper (1970), Madhavrao Scindia ( 1970) and the Golaknath mentioned above.
In RC Cooper, the court reversed Indira Gandhi’s bank nationalization policy, and in Madhavrao Scindia annulled the abolition of the private purses of the former rulers.
The four amendments, as well as the Golaknath ruling, were challenged in the Kesavananda Bharati case, where religious figure Swami Kesavananda Bharati sought relief against the Kerala government against two state land reform laws.
As Golaknath was decided by eleven judges, a larger bench was required to prove its correctness, and thus 13 judges formed the Kesavananda bench.
Prominent legal jurists Nani Palkhivala, Fali Nariman and Soli Sorabjee brought the case against the government.
The trial at Kesavananda Bharati
The Constitutional Bank, whose members shared serious ideological differences, ruled with a 7-6 verdict that Parliament should be restricted from altering the “basic structure” of the Constitution.
The court held that under Article 368, which gives Parliament amendment powers, some of the original Constitution must remain that the new amendment would change.
The court did not define the “basic structure”, and only listed a few principles (federalism, secularism, democracy) as its part. Since then, the court has been adding new features to this concept.
The majority opinion was delivered by the President of the Supreme Court of India, S M Sikri, and the judges K S Hegde, A K Mukherjea, J M Shelat, A N Grover, P Jaganmohan Reddy and H R Khanna. Judges A N Ray, D G Palekar, K K Mathew, M H Beg, S N Dwivedi and Y V Chandrachud disagree.
“Basic structure” from Kesavananda
The doctrine of the “basic structure” has since been interpreted to include the supremacy of the Constitution, the rule of law, the independence of the judiciary, the doctrine of the separation of powers, federalism, secularism, the sovereign democratic republic , the parliamentary system of government, the principle of free and fair elections, the welfare state, etc.
An example of its application is SR Bommai (1994), when the Supreme Court confirmed the firing of the BJP governments by the President after the demolition of Babri Masjid, invoking a threat to secularism by these governments.
Critics of the doctrine have called it undemocratic, as unelected judges can reject a constitutional amendment. At the same time, its proponents have praised the concept as a safety valve against majoritarianism and authoritarianism.
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