Posted on: July 1, 2020 Posted by: Radhamani Saxena Comments: 0

Author: Shashank Sachi; BBALLB; 2019-2024; Chanderprabhu Jain College of Higher Studies And School Of Law Narela, Delhi

Equivalent Citation – AIR 1973 SC 1461

Petitioner: Kesavananda Bharati Sripadagalvaru and Ors

Respondent: State of Kerala and Anr

Date of Judgement: 24/04/1973

Bench:

Sikri, S.M. (Cj) Shelat, J.M., Hegde, K.S. & Grover, A.N., Ray, A.N. & Reddy,

P.J. & Palekar, D.G., Khanna, Hans Raj Mathew, K.K. & Beg, M.H., Dwivedi,

S.N. Mukherjea, B.K. Chandrachud, Y.V.

 

Background

The case of kesavananda Bharati v. State of Kerala is perhaps a well known landmark case of Indian history that made it clear that even the sanctum of parliament can not touch the basic feature of Indian Constitution but prior entering into this case we need to trace our steps back to get into its origin.

It all started with the first amendment that was challenged in Shankari Prashad vs. Union of India[1] and court of law held that under article 368 state has power to amend any part of constitution and the same verdict was given in case of Sajjan Singh Vs State of Rajasthan [2]happened another consequence  when the Government of Punjab in 1953 enacted Security of Land Tenures Act 1953 and certainly placed it into Schedule 9 [3]of Indian Constitution by 17th Constitutional amendment and thus made it untouched even its provision shall violate Fundamental rights of citizens it made a place under Schedule 9 of Indian Constitution.

The next step that took the government into court of law as the government issued an order for seizure of 500 acre legal land of Golaknath brothers i.e. Henry and William Golaknath and said they shall be left by 30 Acres only.

Since that time holding legal land was a fundamental right under Article 19(1)(f) of Indian constitution and abridgment of fundamental right is violative as of Article 13 of Indian constitution thus this all lead the Golakhnath brothers filled for remedy under Article 32 of Indian constitution.

Though the judgement was not in favour but court has stated that State cannot amend fundamental right under Article 368 of Indian Constitution but was given prospective effect.

Political Consequence 

⦁ just after this judgement parliament overruled the judgement and amended Article 368(1) and 368(3) and said that it cannot be considered as law under article 13 and this validity cannot be further challenged.

⦁ the state come up with a new amendment as 24th[4] amendment as the Government of India can make amendment in constitution including the fundamental right.

⦁ State can acquire anyone’s property modified under article 31 through 25th amendment.

⦁ Government came out totally with a new amendment 39th amendment whose provision were that election of president vice-president prime Minister and speaker shall be free from any scrutiny.

The case of Kesavananda Bharati was a PIL filled against the state of Kerala against the 29th amendment which was added in 9th schedule of Indian constitution as Kerala land reforms Act 1963 added under schedule 9 under which the state was acquiring the property of Mutt under two state land reform acts.

Fact

The government of Kerala in 1963 introduced an act Kerala land agreement act 1963 that they amended in 1969 as Kerala land Reform (amendment) Act 1969 under 29th amendment and added the same in 9th schedule of Indian constitution and thus made a provision that state can take away anyone’s property on the will of state without any objection this act of immorality was all being done in gods own country i.e. Kerala, This Act was challenged before SC by the leader of a very popular Hindu Mutt i.e. Endeer mutt of Kerala in kasargod district named as Srimad Jagadguru Sri Sri Sankaracharya Thotakacharya Keshavananda Bharathi Sripadangalavaru on the convincing note of Indian jurist Nanabhoy palkhiwala. It was filled against the 29th amendment and it’s addition in 9th schedule and the sovereignty power of state to acquire land of anyone without his/her concern.

 

Issue

There were a series of issue that had been framed in this case holding a broader essence that ultimately titled as Savoir of Indian democracy.

  1. Constitutional validity of 24th (amendment) Act 1971 : It was laid in Golakhnath case that every aspect of Article 368 shall be hit upon by the exception of Article 13 and in retaliation to overrule the same Government has come out 13(3)readed as “Nothing in article 13 shall apply to any amendment made under this article.”[5]
  2. Constitutional validity of 25th (amendment) Act 1972 : To tickle out the compensation for landowners parliament by order statistical amended the word compensation by “amount” in article 31(2) and was delinked from article 19(1)(f).
  3. Constitutional validity of 29th (amendment) Act 1972: Encroachment into land of people of state by Kerala government as per two state land reform scheduled under 9th schedule of Indian constitution.
  4. Extent of parliament power to make amendment in constitution.

 

Judgement

A bench of 13 judge’s bench sat before to discuss this case the largest judge bench of Indian legal history was on 23rd April 1973 sat to make a landmark judgement. A majority paper was issued before nation as it was 7:6 judgements a classic decision bend neither completely towards petitioner or respondent rather more of a legal reform judgement. The 13 judge bench was leaded by the then CJI SM Sikri released the judgement as majority view paper. And was given prospective effect

 

Majority View

⦁ CJI SM Sikri: Parliament can amend the constitution and this power of parliament is entertained under article 368 of Indian constitution but the same power cannot touch the basic fundamental feature of the constitution.

⦁ the above judgement and view was agreed by justice J M Shelat and justice AN Grover.

⦁ In a joint judgement by justice KS hegdae and justice AK Mukherjea said that parliament can amend the constitution under article 368 but by the same power cannot emasculate the basic fundamental of the constitution but unclear about the basic feature thus agreed but not totally.

⦁ same view was put forward by Justice Jagmohan Reddy still left a void in the issue.

⦁ The most satisfying judgement was penned down by justice HR Khanna as in his judgement he stated that parliament can amend the constitution and the fundamental right as well as the word amendment means to add or to remove accordingly but still in the fundamental right the addition and removal cannot be done in the basic structure and went thus tipped the majority view and provided a much broader scope.

 

Minority View

In this an individual opinion was given by each of the 6 judge AN Ray, DG Palekar, KK Mathew, MH Beg, SN Dwivedi and YV Chandrachud in all it can be called as crisp and unambiguous judgement while Justice M.H. Beg, Justice K.K. Mathew and Justice S.N. Dwivedi also agreed that Golaknath had been decided wrongly. All of them though agreed that parliament can amend any part of Indian constitution under article 368 no matter what the condition is.

 

Apart from above the judgement reads as

⦁ The bench has upheld the 24th constitutional amendment Act 1971.

⦁ 1st part of 25th constitutional amendment act 1972 was declared intra virus while 2nd part as ultra virus and thus 2nd part was struck down.

⦁ Court has also accepted that the word “amount” cannot be replace by the word “compensation” until state defines the amount.

⦁ If there is abridgment of fundamental right like in this case delink of 19(1) (f) one has right to approach before court.

⦁ Land reform act was upheld.

So on a plane reading of of this judgement and a critical analysis it cannot be said that parliament cannot amend the fundamental right as 10 out of 13 judges agreed that it is the power of parliament to make amendment in constitution and fundamental rights under article 368 as also defined by khanna j and after this analyzing the majority view again it can be said that from the same power the basic structure/ basic feature shall remain untouched.

 

Doctrine of Basic Structure

In a crux of all the judgement given and pointers produced we put out some pointers that are considered as basic structure:

⦁          The supremacy of Indian constitution

⦁          The sovereignty of Indian state

⦁          Secular character

⦁          Center state relation i.e. separation of power

⦁          Essential features of Individual’s freedom

⦁          Mandate of welfare state

⦁          Provision of social economical and political justice

⦁          Maintenance of unity and integrity

⦁          Federal nature of state

Since above were of some pointers put forward during kesvananda Bharati judgement the concept has been added by the various benches of the court and keep on updating for and playing a vital role in protection of sovereignty of Indian constitution.

In 1975 again the supreme court got an opportunity to decide on basic structures as the summer bench of j Iyer abandoned the then PM Smt Indira Gandhi from further taking allowances of pm till the case adjudged i.e. Smt Indira Gandhi v Raj Narain[6] on account of corrupt electoral practices. This time parliament introduced and passed 39th amendment and abandoned the court from deciding matters related to PM President vice president. This amendment was challenged before apex court and taking it into cognizance court declared it as one of the basic structure though upheld the amendment in Representation of peoples act 1951 and Election was held valid though court struck down some provisions of 39th amendment[7]

Meanwhile to remove this dogma of basic structure Smt Indira Gandhi uplifted Ray to CJI irrespective of his seniority to review the kesvananda bharati judgement but within two days case file got closed as NN Palikhiwala argued as there is no need to open as a 13 judge bench has already adjudged in this case and there is no appeal made or challenge made this led the CJI to dissolve the division bench.

 

Basic structure reaffirmed in – Minerva Mills and Waman Rao

Again in Minerva Mills[8] NN palkhivala has challenged section 25 of 42nd amendment and the majority view of constitutional bench (4:1) affirmed with chandrachud j that limited amending power is itself in a basic structure thus provided a barricade and increase the scope both at the same time.

[9]In Waman rao case court has went further and made a direct application of kesvananda bharati judgement and said that any constitutional amendment held after 23rd April 1973 shall be a subject of judicial review.

Critical Analysis

The majority view paper put more than 700 pages and above 1200 paragraph a running judgement was put forward by the 13 judges bench a composition of 7:6 majority that not only solve the ambiguity of kesvnanda Bharati but also the ambiguity of Shankari prasad and  Golakhnath case by giving an important doctrine that had saved the democratic view of Indian constitution i.e. doctrine of basic structure and also left it flexible as if future bench fees to add on something if the fundamental right of people touched again.

This judgement of kesvananda Bharati reflects the higher order of application of social legal engineering of judges as they also saved the amending power of parliament through article 368 of Indian constitution and also one of the majority view of kesvananda bharati case khanna j has defined the concept of amendment too and explained how it can be used for the fate of Indian democracy. Thus keeping all the political social and legal through and future affects the bench propounded the term of “Doctrine of basic structure” to check the malice of parliament if any towards the fate and right of people and left this doctrine expandable to protect the basic rights in future and not to let even the sanctum of parliament not to touch.

Conclusion

The judgement of kesvananda bharati without any iota of doubt can be called as a classic one as this was not only a judgement but a paper to save the ethics of democracy as the basic fundamental right of the people of the world’s biggest democracy cannot be touched or changed for once own faith by 2/3rd of the majority of the parliament that not even represent the complete democracy and by amending one cannot call it as in favour for the people and done for the people as this number does not actually represent “people of India”.

In this case the eminent jurist and co-counsel of Kesvananda Bharati case Nani palkhiwala and the majority bench set down the principal and solved the past as well as future of Indian democracy and through the law engineering and social science propounded opinion of basic structure by a bench of 13 judges bench and put a barricade over parliament and restrict that even the sanctum of parliament cannot touch the basic structure of constitution and this also applied in the very next basic structure case of Indira Gandhi v Raj Narain and thus saved the essence of parliament and democracy.

 

REFERENCES

* Shashank Sachi , Email Id shashanksachi1058@gmail.com Ph no:- 8709371830, Chanderprabhu Jain College of Higher Studies And School Of Law Narela Delhi course :-BBALLB 1st Year

[1] 1951 AIR 458, 1952 SCR 89

[2] 1965 AIR 845, 1965 SCR (1) 933

[3] https://blog.ipleaders.in/kbharatikerala/

[4] Our Constitution, Subhash C Kashyap 2015th edition page no 5.

[5] Constitution of India 1949

[6] 1975 AIR 1590, 1975 SCC (2) 159

[7] 1975 AIR 1590, 1975 SCC (2) 159

[8] 1980 AIR 1789, 1981 SCR (1) 206

[9]  (1981) 2 SCC 362, 1981 2 SCR 1

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