Few cases in Indian judicial history are as iconic as the Kesavananda Bharati case where a 13-judge constitutional bench laid down the Doctrine of Basic Structure of the Constitution that Parliament has no power to tamper or alter. It set limits to the brute power of a ruling party to use its Parliamentary majority to amend the constitution, and remains to this day the lodestar of Indian democracy, a ‘must study’ for law graduates, political science students, and others.
With this judgment, the Supreme Court empowered the Judiciary to review the actions of the executive and strike down constitutional amendments deemed ultra vires of the Constitution. On the 40th anniversary of the judgment today, the case is being widely celebrated for upholding the fundamental rights of the ordinary citizen and restraining political authority.
The Kesavananda judgment also put restraints upon Parliament’s power to restrict the property rights of individuals while pursuing land reforms and the redistribution of large landholdings to cultivators.
In Kesavananda Bharati vs. State Of Kerala & Another (Writ Petition (civil) 135 of 1970), petitioner, the head of a matham, Kesavananda Bharati Sripadagalvaru, approached the court with a view to unsettle an issue previously decided in 1967, in Golak Nath vs. State of Punjab. In the Golak Nath case, the Supreme Court set up a bench comprising 11 judges (the first-ever such bench) to consider if any part of the constitutional provisions regarding Fundamental Rights could be revoked or limited by amendment of the constitution.
In two previous cases, Shankari Prasad v. Union of India and Sajjan Singh v. State of Rajasthan, the Supreme Court by majority decision upheld the power of the government to amend the fundamental rights on the basis of Article 368. But in 1967, in the Golak Nath case, the Supreme Court took an extreme view that Parliament could not amend or alter any fundamental right.
On a surface view, Article 368 did not restrict the power of Parliament to amend any part of the Constitution, including taking away a citizen’s right to freedom of speech or his religious freedom. But repeated amendments raised doubts regarding inherent or implied limitations on Parliament’s amending power.
On April 24, 1973, a 13-judge bench headed by then Chief Justice SM Sikri, deliberated the validity of the 24th, 25th and 29th Amendments, and the correctness of the Golak Nath decision. By narrow majority (7:6), the Court decided that while no part of the Constitution, including fundamental rights, was beyond the amending power of Parliament, the “basic structure of the Constitution could not be abrogated even by a constitutional amendment”. In other words, Golak Nath was overturned. The “basic” or “essential” features of the Constitution were held inviolate and placed inherent limitations on the amending power of Parliament. Later, nine of the judges signed a summary stating that this was the majority view.
This basic structure doctrine has bestowed the Kesavananda Bharati case with unique distinction in Indian constitutional history. In 1975, shortly after the imposition of the Emergency, a bench of 13 judges headed by then Chief Justice AN Ray, was created to hear Indira Gandhi vs. Raj Narain, to establish the degree to which amendments were restricted by the basic structure doctrine. A team of lawyers led by Nani Palkhivala argued for two days (November 10, 11) against the Union Government’s plea to reconsider the Kesavananda Bharati verdict. As the arguments proceeded, the judges sided with the lawyers and the Chief Justice found himself isolated. On November 12, the Chief Justice pronounced the bench dissolved.
In Indira Nehru Gandhi vs. Raj Narain, the court used the basic structure doctrine to strike down the 39th amendment which prohibited challenge to the election of the President, Vice President, and Prime Minister, on grounds of alleged electoral malpractice. It was a clear attempt to contain the damage to Indira Gandhi after her 1971 election was set aside on a proven, albeit technical, malpractice by the Allahabad High Court.
The basic structure doctrine was again invoked to challenge the Forty Second Amendment which was passed to overturn the Kesavananda Bharati judgment. It inserted two clauses in Article 368 which inter alia stated that “(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976 shall be called in question in any court on any ground.”
Further, “(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article”.
These articles were challenged in Minerva Mills Ltd. vs. Union of India, 1981, where the Supreme Court declared Clauses (4) and (5) of Article 368 of the Constitution invalid. The Court reiterated the Kesavananda Bharati decree that the power of Parliament to amend the Constitution was limited, and it could not amend the Constitution to convert this power into an unlimited power, as attempted by the impugned Amendment.
NitiCentral.com, 24 April 2013
http://www.niticentral.com/2013/04/24/there-are-limits-to-constitutional-amendments-70153.html
