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Friday, September 25, 2020

Explained: In SC reading of basic structure, the signature of Kesavananda Bharati

Kesavananda Bharati was the head seer of the Edneer Mutt in Kasaragod district of Kerala since 1961.

Written by Apurva Vishwanath | New Delhi | Updated: September 13, 2020 11:45:22 am
Kesavananda Bharathi, Kesavananda Bharathi dead, Kesavananda Bharathi passes away, Kesavananda Bharathi case, Kesavananda Bharathi supreme court case, Kesavananda Bharathi ConstitutionKesavananda Bharati was the head seer of the Edneer Mutt in Kasaragod district of Kerala since 1961. (Twitter/@VPSecretariat)

The landmark ruling in which the Supreme Court announced the basic structure doctrine was in the case of His Holiness Kesavananda Bharati Sripadagalvaru and Ors v State of Kerala. Kesavananda Bharati, the man who lent his name to this iconic case as the petitioner, died on Sunday.

The ruling is considered among the most consequential decisions by the Supreme Court as it set out the “basic structure” of the Constitution that Parliament cannot amend.

Who was Kesavananda Bharati?

Kesavananda Bharati was the head seer of the Edneer Mutt in Kasaragod district of Kerala since 1961. He left his signature in one of the significant rulings of the Supreme Court when he challenged the Kerala land reforms legislation in 1970.

A 13-judge Bench was set up by the Supreme Court, the biggest so far, and the case was heard over 68 working days spread over six months. The Bench gave 11 separate judgments that agreed and disagreed on many issues but a majority judgment of seven judges was stitched together by then Chief Justice of India S M Sikri on the eve of his retirement. However, the basic structure doctrine, which was evolved in the majority judgment, was found in the conclusions of the opinion written by one judge — Justice H R Khanna.

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What was the case about?

The case was primarily about the extent of Parliament’s power to amend the Constitution. First, the court was reviewing a 1967 decision in Golaknath v State of Punjab which, reversing earlier verdicts, had ruled that Parliament cannot amend fundamental rights.

Second, the court was deciding the constitutional validity of several other amendments. Notably, the right to property had been removed as a fundamental right, and Parliament had also given itself the power to amend any part of the Constitution and passed a law that it cannot be reviewed by the courts.

The executive vs judiciary manoeuvres displayed in the amendments ended with the Kesavananda Bharati case, in which the court had to settle these issues conclusively.

Politically, the case represented the fight for supremacy of Parliament led by then Prime Minister Indira Gandhi.

What did the court decide?

In its majority ruling, the court held that fundamental rights cannot be taken away by amending them. While the court said that Parliament had vast powers to amend the Constitution, it drew the line by observing that certain parts are so inherent and intrinsic to the Constitution that even Parliament cannot touch it.

However, despite the ruling that Parliament cannot breach fundamental rights, the court upheld the amendment that removed the fundamental right to property. The court ruled that in spirit, the amendment would not violate the “basic structure” of the Constitution.

Kesavananda Bharati, in fact, lost the case. But as many legal scholars point out, the government did not win the case either.

What is the basic structure doctrine?

The origins of the basic structure doctrine are found in the German Constitution which, after the Nazi regime, was amended to protect some basic laws. The original Weimar Constitution, which gave Parliament to amend the Constitution with a two-thirds majority, was in fact used by Hitler to his advantage to made radical changes. Learning from that experience, the new German Constitution introduced substantive limits on Parliament’s powers to amend certain parts of the Constitution which it considered ‘basic law’.

In India, the basic structure doctrine has formed the bedrock of judicial review of all laws passed by Parliament. No law can impinge on the basic structure. What the basic structure is, however, has been a continuing deliberation. While parliamentary democracy, fundamental rights, judicial review, secularism are all held by courts as basic structure, the list is not exhaustive.

What was the fallout of the verdict?

Politically, as a result of the verdict, the judiciary faced its biggest litmus test against the executive. The Indira Gandhi-led government did not take kindly to the majority opinion and superseded three judges —J M Shelat, A N Grover and K S Hegde — who were in line to be appointed CJI after Justice Sikri.

Justice A N Ray, who had dissented against the majority verdict, was instead appointed CJI. The supersession resulted in a decades-long continuing battle on the independence of the judiciary and the extent of Parliament’s power to appoint judges.

But the ruling has cemented the rejection of majoritarian impulses to make sweeping changes or even replace the Constitution and underlined the foundations of a modern democracy laid down by the makers of the Constitution.

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