Kesavananda Bharati, the seer who had initiated the constitutional case before the Supreme Court (SC) that had led to the birth of the legal doctrine of the ‘basic structure’, passed away Sunday morning at his ashram in Edneer, in the district of Kasaragod, in North Kerala. He was 79 years old.
Bharati had filed the case on March 21, 1970 challenging the Kerala Agrarian Reform (Amendment) Act, 1969 and the three constitutional amendments — 24, 25 and 29 – claiming that they violated his fundamental right to practice and propagate religion. . (Article 25); freedom of religious confession, including the management and administration of their property (article 26); and the right to property (article 31).
He had defied the law after land reform legislation threatened to strip his dog of his property, which was the ashram’s only source of income.
The acclaimed lawyer Nani Palkhivala had appeared for Bharati before a court of 13 SC judges.
It was the only time that a bench of 13 judges, who was the full force of the high court at the time, had sat down to decide a case. It was the longest case before the superior court, as the hearing lasted for 69 days from October 31, 1972 to March 23, 1973.
The SC’s ruling on the 24th Amendment was crucial when it came to the Constitution and the powers of Parliament.
The 24th Amendment empowers Parliament to modify any part of the Constitution. The amendment, which was introduced in 1971, was made to overcome an earlier CS ruling in Golaknath v. The state of Punjab. In the Golaknath case, the SC argued that Parliament cannot amend the Constitution in a way that removes or reduces the fundamental rights of the Constitution.
Said judgment was based on the interpretation of articles 13 and 368 of the Constitution.
Article 13 establishes that Parliament cannot enact any law that violates the fundamental rights guaranteed in Part III of the Constitution. Article 368 empowers Parliament to make amendments to the constitution.
The question before the court was whether the word “law” in section 13 would include a constitutional amendment under section 368. In the Golaknath judgment, an amendment under section 368 was held to be “law” within the scope of the definition of article 13. He stated that Parliament is not empowered to amend Part III of the Constitution.
The 24th amendment provided that the prohibition in article 13 would not apply to any constitutional amendment made under article 368.
As a result, Parliament can modify any part of the Constitution, including fundamental rights.
The judgment of Bharati by a majority of 7: 6 had confirmed this power. But it came with a powerful clause: that such amendments should not alter the “basic structure” of the Constitution. However, the high court did not provide an exhaustive list of what would constitute the “basic structure” of the Constitution.
The interpretation was left open and has been used time and again to repeal laws that the CV considered distorted the Constitution.
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