. The case that saved INDIAN DEMOCRACY.

JEET:

Exactly forty years ago, on April 24, 1973, Chief Justice Sikri and 12 judges of the Supreme Court
assembled to deliver the most important judgment in its history. The case of Kesavananda Bharati v
State of Kerala had been heard for 68 days, the arguments commencing on October 31, 1972, and
ending on March 23, 1973. The hard work and scholarship that had gone into the preparation of this
case was breathtaking. Literally hundreds of cases had been cited and the then Attorney-General had
made a comparative chart analysing the provisions of the Constitutions of 71 different countries!

RISHAV:

The case of Kesavananda Bharati v. State of Kerala (Kesavananda Bharati)is perhaps the most well-
known constitutional decision of the Supreme Court of India (Supreme Court). While ruling that there is
no implied limitation on the powers of Parliament to amend the Constitution, it held that no
amendment can do violence to its basic structure (the “Basic Structure Doctrine”). Further, it established
the Supreme Court’s right of review and, therefore, established its supremacy on constitutional matters.

JEET:

This decision may be said to have played a major role in preserving India’s parliamentary democracy.
However, as some of the implications of this case are even now becoming apparent, it is clear that its
complexity and lack of clarity on certain important questions left much to be decided by posterity.

The most important of these is the question over what constitutes the Constitution’s basic structure.
While overruling an earlier decision of the Supreme Court in Golak Nath v. State of Punjab (Golak Nath),
which held that constitutional amendments cannot impinge on fundamental rights, Kesavananda Bharati
left the door open to a judicial view on whether any amendment to a fundamental right can be said to
amend the basic structure. With a hearing that lasted over 60 days, eleven different judgments
pronounced, an 800-odd page decision, along with Chief Justice Sikri’s controversial “View by the
Majority”, confusion over the interpretation of its ratio continues to date.

RISHAV:

The genesis of the dispute leading to Kesavananda Bharati lies in the interpretation of Article 368 of the
Indian Constitution, which allows Parliament to amend the Constitution. While the Article itself is
unambiguous, the scope and extent of Parliamentary power to modify the Constitution was a highly
contested issue, resulting in the Golak Nath judgment wherein the Supreme Court held that Parliament,
in exercising its power to amend the Constitution, did not have the power to amend the fundamental
rights under Part III of the Indian Constitution. As soon as the Golak Nath judgment was pronounced, it
was subjected to vehement legal and political criticism. Many considered it a political decision which
interfered with the power of Parliament to amend the Constitution.

Two years after Golak Nath, the Government under then Prime Minister Mrs. Indira Gandhi nationalised
14 banks, with a provision for minimal compensation. This decision was immediately challenged in the
Supreme Court. In R.C. Cooper v. Union of India the Supreme Court struck down the Bank
Nationalization Act, 1969 because of the compensation component of the enactment, while upholding
the right of Parliament to nationalise banks.The Government then attempted to abolish Privy Purses,
which were payments promised to the erstwhile princes by the Indian Government at the time of
Independence. In Madhav Rao Scindia v. Union of India,the Supreme Court again struck down the
Presidential order, which resulted in the above abolition.

JEET: [reading an online article]

Following these reversals before the Supreme Court, the Indian Government passed numerous
Constitutional amendments to supersede the decisions of the Supreme Court:

The Constitution (24th Amendment) Act, 1971 introduced clause (4) in Article 13, protecting Article 368
from the action of Article 13.

Clauses (1) and (3) were also added to Article 368, to both restrict the scope of Article 13, as well as to
establish the distinction between the amending power of Parliament and its legislative power.

The Constitution (25th Amendment) Act, 1971 modified Article 31 of the Constitution, expanding the
power of the Government to acquire private property.

And with the Constitution (26th Amendment) Act, 1971, Parliament nullified the decision of the
Supreme Court in the Privy Purses case.

JEET: I know more or less about The Kesavananda Bharati Case but today as we are in a conversation,
and you know how much I like to know from you, I want to know about your prespectives and
understanding and see how much your conclusions are different from mine.

RISHAV:

Kesavananda Bharati involved six different writ petitions by a number of petitioners who represented
the propertied class, land proprietors opposed to land ceiling laws, sugar companies in Maharashtra,
coal mining companies and former Princes seeking to preserve their earlier privileges. The writ petitions
questioned whether there were limitations on the power of Parliament to amend the Constitution,
particularly the fundamental rights, as decided in the Golak Nath case.
The lead petitioner, His Holiness Kesavananda Bharati Sripadagalvaru, the leader of a math in Kerala,
challenged the Constitution (29th Amendment) Act, 1972, which placed the Kerala Land Reforms Act,
1963 and its amending Act into the IX Schedule of the Constitution. A bench of 13 judges was
constituted to hear the matter. In a seven-six majority, the bench held that Parliament’s power to
amend the Constitution was not explicitly limited, but was limited to not altering or modifying the basic
features or structure of the Constitution. Eleven separate judgments were pronounced orally in court.

In a controversial move, during the pronouncement, Chief Justice Sikri circulated a paper entitled “View
by the Majority”, which set out six propositions including Proposition No. 2: “Article 368 does not enable
Parliament to alter the basic structure or framework of the Constitution”. This proposition, lifted from
Justice Khanna’s judgment, has become synonymous with the ratio of Kesavananda Bharati. Pertinently,
only nine out of the 13 Judges signed the “View by the Majority”.

The Supreme Court in Kesavananda Bharati ultimately upheld the Land Reform Acts and the
Amendment Acts that had been challenged. The only provision that was struck down was that portion of
the Constitution (25th Amendment) Act, which denied the possibility of judicial review. Aside from the
limit imposed on the ability of Parliament to alter the basic structure, the case was an overall success for
the Government.

Core question

All this effort was to answer just one main question: was the power of Parliament to amend the
Constitution unlimited? In other words, could Parliament alter, amend, abrogate any part of the
Constitution even to the extent of taking away all fundamental rights?

Article 368, on a plain reading, did not contain any limitation on the power of Parliament to amend any
part of the Constitution. There was nothing that prevented Parliament from taking away a citizen’s right
to freedom of speech or his religious freedom. But the repeated amendments made to the Constitution
raised a doubt: was there any inherent or implied limitation on the amending power of Parliament?

The 703-page judgment revealed a sharply divided court and, by a wafer-thin majority of 7:6, it was held
that Parliament could amend any part of the Constitution so long as it did not alter or amend “the basic
structure or essential features of the Constitution.” This was the inherent and implied limitation on the
amending power of Parliament. This basic structure doctrine, as future events showed, saved Indian
democracy and Kesavananda Bharati will always occupy a hallowed place in our constitutional history.
JEET:

It is supremely ironical that the basic structure theory was first introduced by Justice Mudholkar eight
years earlier by referring to a 1963 decision of the Supreme Court of Pakistan. Chief Justice Cornelius —
yes, Pakistan had a Christian Chief Justice and, later, a Hindu justice as well — had held that the
President of Pakistan could not alter the “fundamental features” of their Constitution.

RISHAV:

The Kesavananda Bharati case was the culmination of a serious conflict between the judiciary and the
government, then headed by Mrs Indira Gandhi. In 1967, the Supreme Court took an extreme view, in
the Golak Nath case, that Parliament could not amend or alter any fundamental right. Two years later,
Indira Gandhi nationalised 14 major banks and the paltry compensation was made payable in bonds that
matured after 10 years! This was struck down by the Supreme Court, although it upheld the right of
Parliament to nationalise banks and other industries. A year later, in 1970, Mrs Gandhi abolished the
Privy Purses. This was a constitutional betrayal of the solemn assurance given by Sardar Patel to all the
erstwhile rulers. This was also struck down by the Supreme Court. Ironically, the abolition of the Privy
Purses was challenged by the late Madhavrao Scindia, who later joined the Congress Party.

Smarting under three successive adverse rulings, which had all been argued by N.A. Palkhivala, Indira
Gandhi was determined to cut the Supreme Court and the High Courts to size and she introduced a
series of constitutional amendments that nullified the Golak Nath, Bank Nationalisation and Privy Purses
judgments. In a nutshell, these amendments gave Parliament uncontrolled power to alter or even
abolish any fundamental right.

These drastic amendments were challenged by Kesavananda Bharati, the head of a math in Kerala, and
several coal, sugar and running companies. On the other side, was not only the Union of India but
almost all the States which had also intervened. This case had serious political overtones with several
heated exchanges between N.A. Palkhivala for the petitioners and H.M. Seervai and Niren De, who
appeared for the State of Kerala and the Union of India respectively.

The infamous Emergency was declared in 1975 and, by then, eight new judges had been appointed to
the Supreme Court. A shocking attempt was made by Chief Justice Ray to review the Kesavananda
Bharati decision by constituting another Bench of 13 judges. In what is regarded as the finest advocacy
that was heard in the Supreme Court, Palkhivala made an impassioned plea for not disturbing the earlier
view. In a major embarrassment to Ray, it was revealed that no one had filed a review petition. How was
this Bench then constituted? The other judges strongly opposed this impropriety and the 13-judge
Bench was dissolved after two days of arguments. The tragic review was over but it did irreversible
damage to the reputation of Chief Justice A.N RAY
JEET:

Constitutional rights saved

If the majority of the Supreme Court had held (as six judges indeed did) that Parliament could alter any
part of the Constitution, India would most certainly have degenerated into a totalitarian State or had
one-party rule. At any rate, the Constitution would have lost its supremacy. Even Seervai later admitted
that the basic structure theory preserved Indian democracy. One has to only examine the amendments
that were made during the Emergency. The 39th Amendment prohibited any challenge to the election of
the President, Vice-President, Speaker and Prime Minister, irrespective of the electoral malpractice. This
was a clear attempt to nullify the adverse Allahabad High Court ruling against Indira Gandhi. The 41st
Amendment prohibited any case, civil or criminal, being filed against the President, Vice-President,
Prime Minister or the Governors, not only during their term of office but forever. Thus, if a person was a
governor for just one day, he acquired immunity from any legal proceedings for life. If Parliament were
indeed supreme, these shocking amendments would have become part of the Constitution.

Thanks to Kesavananda Bharati, Palkhivala and the seven judges who were in the majority, India
continues to be the world’s largest democracy. The souls of Nehru, Patel, Ambedkar and all the founding
fathers of our Constitution can really rest in peace.

SOURCE: https://www.civilsdaily.com/news/kesavananda-bharati-case-1973-the-judgment-that-upheld-
basic-structure-of-indias-constitutisssson/