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Monday, September 21, 2020

Legacy that endures

Kesavananda Bharati case laid down important red lines, set scope and limits of amending Constitution.

By: Editorial | September 8, 2020 3:18:50 am
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The lasting legacy of Kesavananda Bharati, who died on Sunday, is the case that bears his name as the first petitioner. His Holiness Kesavananda Bharati Sripadagalvaru and Ors v State of Kerala gave the head of Edneer Mutt in Kasaragod a national profile and an important place in legal studies. The irony is that he lost the case — Bharati had pleaded in the Supreme Court against the Kerala government acquiring Mutt property over 300 acres under the land reform law on the ground that it violated the constitutional right to property. But the case turned out to be about the extent of Parliament’s power to amend the Constitution: The majority ruled that Parliament cannot remove fundamental rights by amending the Constitution though it upheld the amendment that removed the fundamental right to property. The Court said that while Parliament had vast powers to amend the Constitution, it could not violate its “basic structure”.

The basic structure doctrine has since become the touchstone to judge the constitutionality of any amendment to the Constitution. Kesavananda Bharati (1973) judgment came in the backdrop of the Indira Gandhi regime, riding a large parliamentary majority, claiming immense powers for the legislature and upsetting the delicate balance of institutions. Interestingly, there was no unanimity in the majority about what constituted the basic doctrine — each judge had his own list of essential features. Parliamentary democracy, fundamental rights, judicial review, secularism etc. have been held as part of the basic structure and the list has been left open-ended.

Critics have argued that the basic structure doctrine upsets the balance of powers in favour of the Supreme Court over Parliament, and hence, can hurt democratic principles. But the intent of the doctrine is not to freeze the Constitution in time, but to remind the legislature and executive that changes made to it must not violate the spirit of the founding document of the republic, which is that all citizens are equal and their freedoms can’t be compromised.

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