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Wednesday, October 28, 2020

Explained: 47 years of a judgment that upheld basic structure of India’s constitution

Since the Indian Constitution was first adopted, debates have raged as to the extent of power that Parliament should have to amend key provisions.

By: Explained Desk | New Delhi | Updated: September 6, 2020 9:31:42 am
supreme court of india, Kesavananda Bharati vs State of Kerala supreme court judgment, indian constitution, constitution amendments, Since the Indian Constitution was first adopted, debates have raged as to the extent of power that Parliament should have to amend key provisions.

Exactly 47 years ago, the Supreme Court passed its landmark judgment in Kesavananda Bharati vs State of Kerala, considered among the most significant constitutional cases in India’s judicial history.

By a 7-6 verdict, a 13-judge Constitution Bench ruled that the ‘basic structure’ of the Constitution is inviolable, and could not be amended by Parliament. The basic structure doctrine has since been regarded as a tenet of Indian constitutional law.

READ | Kesavananda Bharati, seer behind basic rights case, passes away

Amending 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. Under some Constitutions, certain parts are immune from amendments, and are given a special status compared to other provisions.

Since the Indian Constitution was first adopted, debates have raged as to the extent of power that Parliament should have to amend key provisions.

In the early years of Independence, the Supreme Court conceded absolute power to Parliament in amending the Constitution, as was seen in the verdicts in Shankari Prasad (1951) and Sajjan Singh (1965).

The reason for this is believed to be that in those initial years, the apex court had reposed faith in the wisdom of the then political leadership, when leading freedom fighters were serving as Members of Parliament.

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In subsequent years, as the Constitution kept being amended at will to suit the interests of the ruling dispensation, the Supreme Court in Golaknath (1967) held that Parliament’s amending power could not touch Fundamental Rights, and this power would be only with a Constituent Assembly.

The tussle between Parliament and the judiciary

In the early 1970s, the government of then Prime Minister Indira Gandhi had enacted major amendments to the Constitution (the 24th, 25th, 26th and 29th) to get over the judgments of the Supreme Court in RC Cooper (1970), Madhavrao Scindia (1970) and the earlier mentioned Golaknath.

In RC Cooper, the court had struck down Indira Gandhi’s bank nationalisation policy, and in Madhavrao Scindia it had annulled the abolition of privy purses of former rulers.

All the four amendments, as well as the Golaknath judgment, came under challenge in the Kesavananda Bharati case– where relief was sought by the religious figure Swami Kesavananda Bharati against the Kerala government vis-à-vis two state land reform laws.

Since Golaknath was decided by eleven judges, a larger bench was required to test its correctness, and thus 13 judges formed the Kesavananda bench.

Noted legal luminaries Nani Palkhivala, Fali Nariman, and Soli Sorabjee presented the case against the government.

The judgment in Kesavananda Bharati

The Constitutional Bench, whose members shared serious ideological differences, ruled by a 7-6 verdict that Parliament should be restrained from altering the ‘basic structure’ of the Constitution.

The court held that under Article 368, which provides Parliament amending powers, something must remain of the original Constitution that the new amendment would change.

The court did not define the ‘basic structure’, and only listed a few principles — federalism, secularism, democracy — as being its part. Since then, the court has been adding new features to this concept.

The majority opinion was delivered by Chief Justice of India S M Sikri, and Justices K S Hegde, A K Mukherjea, J M Shelat, A N Grover, P Jaganmohan Reddy, and H R Khanna. Justices A N Ray, D G Palekar, K K Mathew, M H Beg, S N Dwivedi, and Y V Chandrachud dissented.

‘Basic structure’ since Kesavananda

The ‘basic structure’ doctrine has since been interpreted to include the supremacy of the Constitution, the rule of law, Independence of the judiciary, doctrine of separation of powers, federalism, secularism, sovereign democratic republic, the parliamentary system of government, the principle of free and fair elections, welfare state, etc.

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An example of its application is SR Bommai (1994), when the Supreme Court upheld the dismissal of BJP governments by the President following the demolition of the Babri Masjid, invoking a threat to secularism by these governments.

Critics of the doctrine have called it undemocratic, since unelected judges can strike down a constitutional amendment. At the same time, its proponents have hailed the concept as a safety valve against majoritarianism and authoritarianism.

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