September 6, 2020 11:26:52 am
Kesavananda Bharathi was 79 years old (Source: Twitter / Shivraj Singh Chouhan)
Kesavananda Bharati, the head of the Edaneer Mutt in Kasargod who passed away on Sunday (September 6) morningHe will forever be remembered for the legal challenge he mounted against the Kerala government, which is considered by most jurists to be the largest constitutional case in the Indian judicial history.
By a 7-6 majority judgment delivered in ‘His Holiness Kesavananda Bharati Sripadagalvaru and Ors. V. State of Kerala and Anr ‘, a court of 13 Supreme Court judges ruled on April 24, 1973 that the “Basic structure” of the Constitution it is inviolable and cannot be modified by Parliament.
Since then, the doctrine of basic structure has been considered a fundamental principle of Indian constitutional law.
The judges in the Kesavananda Bharati case
The judges at the Banco de la Constitución were divided in two by serious ideological differences.
The majority opinion was issued by the Chief Justice of India, SM Sikri, and Justices KS Hegde, AK Mukherjea, JM Shelat, AN Grover, P Jaganmohan Reddy and HR Khanna.
Justices AN Ray, DG Palekar, KK Mathew, MH Beg, SN Dwivedi and YV Chandrachud disagreed.
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What the trial said
The court held that under Article 368 of the Constitution, which gives Parliament powers of amendment, there must be something left of the original Constitution that the new amendment would not change.
But although the ruling established the doctrine of the basic structure and ruled that Parliament had no power to modify it, the court did not define the basic structure itself.
He only listed a few principles, including federalism, secularism, and democracy. Since then, the court has been adding new features to this concept.
Today, the ‘basic structure’ is widely 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 freedom and fair elections, the welfare state, etc.
The background of the case
Almost immediately after the passage of the Constitution, discussions began on the extent of Parliament’s power to amend its key provisions. In the early years of Independence, the Supreme Court granted absolute power to Parliament to amend the Constitution, as seen in the verdicts of Shankari Prasad (1951) and Sajjan Singh (1965).
The reason for this is believed to be that in those early years, the Supreme Court had placed its faith in the wisdom of the political leaders of the day, when prominent luminaries of India’s freedom movement served as members of Parliament.
In the following years, however, governments amended the Constitution at will to accommodate partisan political interests. The Supreme Court in Golaknath (1967) held that the amendment power of Parliament could not touch Fundamental Rights, and that this power resided solely in a Constituent Assembly.
In the early 1970s, the government of then-Prime Minister Indira Gandhi enacted major amendments to the Constitution (24, 25, 26 and 29) to circumvent Supreme Court rulings in RC Cooper (1970), Madhavrao Scindia ( 1970) and Golaknath (1967).
In RC Cooper, the court had annulled Indira’s bank nationalization policy, and in Madhavrao Scindia, it had annulled the abolition of the private purses of the rulers of the old princely states.
The four amendments – 24 (fundamental rights, 1971), 25 (property rights, 1972), 26 (private purses, 1971), 29 (land reform laws, 1972) – as well as the ruling in ‘IC Golaknath & Ors vs. . The state of Punjab and Anr ‘(1967) was challenged in Kesavananda Bharati, in which the petitioner sought redress against the government of Kerala in connection with two state land reform laws.
Since Golaknath was decided by a bench of 11 judges, a larger bench was required to test its accuracy, and thus 13 judges formed the Kesavananda bench. Nani Palkhivala, Fali Nariman and Soli Sorabjee brought the case against the government.
The consequences of the case
Indira’s government counterattacked the Kesavananda verdict. The Chief Justice of India, SM Sikri, withdrew the day after the verdict and was replaced on April 26, 1973 by Justice AN Ray, who was among the six dissenting justices. Judge Ray became the fourteenth CJI to replace Justices Shelat, Grover and Hegde, who were on the majority side in the case.
Attorney General Niren De moved to the Supreme Court without ever filing a petition for review, and CJI Ray, as master of the roster, set up a bench of 13 justices to review the verdict. However, on November 12, 1975, the bank was dissolved after CJI Ray gave in to immense peer pressure.
The basic structure doctrine has since been applied to several important cases before the Supreme Court, including SR Bommai (1994), when the Supreme Court upheld the removal of the BJP governments by the President following the demolition of Babri Masjid, invoking a threat to secularism from these governments.
Critics of the doctrine have called it undemocratic, since unelected judges can overturn a constitutional amendment. But in general, it has been hailed as a check against majoritarianism and authoritarianism.
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