Kesavananda Bharati Case and Basic Structure of the Indian Constitution – Evolution, Salient Features, Significance and Criticism

Recently Kesavananda Bharati, the seer of Edneer Mutt in Kasaragod district of Kerala, whose petition challenging the Kerala Land Reforms (Amendment) Act 1969 led to the landmark “basic structure” doctrine verdict delivered by the Supreme Court in 1973, passed away. The case of Kesavananda Bharati vs. State of Kerala was heard for 68 days and continues to hold the vertex spot for the longest proceedings ever to have taken place in the top court. The judgment is considered among the most significant and consequential decisions by the Supreme Court as it set out the “basic structure” of the Constitution that Parliament cannot amend. In this context, let’s make a comprehensive analysis of the Kesavananda Bharati Case and Basic Structure of the Indian Constitution.

Who was Kesavananda Bharati?

• Since 1961 Kesavananda Bharati was the head seer of the Edneer Mutt in Kasaragod district of Kerala
• He belonged to the Parampara of Thotakacharya, one of the first four disciples of Adi Shankara.
• He was a follower of the Smartha Bhagawatha tradition of Advaitha Pantha.
• He took Sanyasa at the age of 19 and headed the Edneer Mutt as the Peetadhipathi until his death in September 2020
• Kesavananda Bharati was a Carnatic and Hindusthani vocalist, and master of Yakshagana, an Indian art and theatre form.

Role in Indian constitutional law

• Kesavananda Bharati challenged the Kerala land reforms legislation in 1970 and left his signature in the significant rulings of the Supreme Court for that case.
• It is in this case the Supreme Court established the basic structure doctrine of the Indian Constitution through a landmark judgment.
• The doctrine provides safeguards for the basic structure of the Indian Constitution from parliamentary amendments.

What was the case about?

• The case was mainly about the extent of Parliament’s power to amend the Constitution.
• In the first place, 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.
• Secondly, the court was deciding the constitutional validity of several other amendments. Particularly, 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 scrutinized by the courts.
• The executive vs. judiciary manoeuvres was clearly visible in these amendments and it finally 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?

• A Bench of 13-judge was set up by the Supreme Court and is the biggest so far.
• The hearing of the case lasted over 68 working days spread over six months.
• 11 separate judgments have been delivered by the bench 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.
• The court in its majority ruling held that fundamental rights cannot be taken away by amending them.
• The court also mentioned about the vast powers Parliament have to amend the Constitution.
• By this, the Supreme Court drew the line by observing that certain parts are so inherent and intrinsic to the Constitution that even Parliament cannot touch it.
• That is, the court ruled that in spirit, the amendment would not violate the “basic structure” of the Constitution.

What is the basic structure doctrine?

• The emergence of the basic structure doctrine is found in the German Constitution which, after the Nazi regime, was amended to protect some basic laws.
• Hitler used the provisions of the original Weimar Constitution, which gave the parliament to amend the Constitution with a two-thirds majority to make radical changes.
• Learning from that past experiences, the new German Constitution introduced substantive limits on Parliament’s powers to amend certain parts of the Constitution which is considered as ‘basic law’.
• The basic structure doctrine in India has formed the basis of judicial review of all laws passed by Parliament.
• No law can impinge on the basic structure.
• What the basic structure is still a continuing deliberation and has been proceeding with a thought.
• Though parliamentary democracy, fundamental rights, judicial review, secularism are all held by courts as the basic structure, the list is not comprehensive.
• The doctrine forms the basis of the power of the Supreme Court to review and strike down constitutional amendments and acts enacted by the Parliament which conflict with or seek to change the basic structure of the Constitution.

Evolution of Basic Structure in India

1. Initial stance:
   • The Supreme Court’s initial position on constitutional amendments was that
     • Amendment can be done in any part of the Constitution
     • To comply with the requirements of article 368 to amend any provision of the Constitution, including the Fundamental Rights and article 368, Parliament might pass a Constitution Amendment Act

2. Shankari Prasad case:
   • The constitutional validity of the First Amendment Act (1951), which curtailed the right to property, was challenged in the Shankari Prasad case (1951),
   • The Supreme Court ruled that the power of the Parliament to amend the Constitution under Article 368 also includes the power to amend Fundamental Rights.
3. Sajjan Singh v. State of Rajasthan:
   • It was in 1964, In the case of Sajjan Singh v. State of Rajasthan, The Constitution has “basic features” was first theorized by Justice J.R. Mudholkar.
   • He questioned whether the ambit of Article 368 included the power to alter a basic feature or rewrite a part of the Constitution.
4. Golaknath vs. State of Punjab:
   • In Golaknath vs. State of Punjab, the Supreme Court held that Fundamental Rights of the Constitution are given a transcendental position and are beyond the reach of Parliament.
   • It also declared any amendment that takes away or abridges a Fundamental Right conferred by Part III as unconstitutional.
5. Kesavananda Bharati case:
   • The concept of basic structure was finally introduced by the Supreme Court in the Kesavananda Bharati case 1973.
   • As discussed above, in this landmark ruling, the Court adjudicated that while Parliament has wide powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution.
6. Indira Gandhi case:
   • The Supreme Court reaffirmed its concept of basic structure In Indira Gandhi vs. Raj Narain, 1975,
7. Minerva Mills Case:
   • The Supreme Court ruled that Judicial Review is included in Basic features of the Constitution under Minerva Mills Case (1980).
8. Waman Rao Case:
   • it was held that the doctrine will be applied to Constitutional Amendments after the Kesavananda Bharati Case Judgment in Waman Rao Case (1981)
9. Kihoto hollohan case:
   • ‘Free and fair elections’ was added to the basic features in Kihoto hollohan vs. Zachillhu, 1992,
10. Indira Sawhney case:
    • ‘Rule of law, was added to the basic features Indira Sawhney vs. Union of India, 1992.
11. S.R Bommai case:
    • Federal structure, unity and integrity of India, secularism, socialism, social justice and judicial review were reiterated as basic features In S.R Bommai vs. Union of India, 1994.

What are the Salient features of basic structure doctrine?

• Restricted amending powers:
  • The concept of Basic Structure has not been mentioned in the Constitution
  • Neither there was a restriction on the amending powers of Parliament.
  • Basic structure doctrine restricted the amending powers of the Indian Parliament.
• Supremacy of the Constitution:
  • It reiterated that the constitution is supreme and has certain basic components that can’t be touched.
• Unity and sovereignty of India:
  • According to basic structure, India’s sovereignty and unity is inherent and can’t be removed.
  • It restricted the parliament’s power to alter federal provisions solely.
• Democratic and republican form of government:
  • India is a democracy and a republic and hence is driven by its people.
• Secular character of the Constitution:
  • India is a secular country as mentioned in the preamble and this secular provision is a basic doctrine.

What was the fallout of the verdict?

• Politically, because of the judgment, the judiciary confronted its greatest litmus test against the executive.
• The Indira Gandhi-led government didn’t take kindly to the bulk opinion and superseded three judges —J M Shelat, A N Grover and K S Hegde — who were in queue 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 very decade-long continuing battle on the independence of the judiciary and also the extent of Parliament’s power to appoint judges.
• The rejection of majoritarian impulses to make sweeping changes or even replaces the Constitution was cemented by the ruling and it underlined the foundations of a modern democracy laid down by the founding fathers of the Constitution.

What is the significance of the basic structure doctrine?

• The doctrine of Basic Structure is one in all the best contributions of Indian Judiciary to theory of constitutionalism.
• The doctrine of Basic Structure helped in maintaining the supremacy of the Constitution and to forestall its destruction by a brief majority in Parliament.
• It acts as a limitation upon the constituent power and has helped in arresting the forces which can destabilize the democracy.
• Parliament doesn’t and will not have a limitless power to amend the Constitution.
• As future events showed, this basic structure doctrine saved Indian democracy.
• It helps to retain the basic and essential ideals of the Constitution which was meticulously constituted by the founding fathers our Constitution
• It is widely believed that if the Supreme Court had held that Parliament could alter any a part of the Constitution, India would most certainly have degenerated into a totalitarian State or had one-party rule. Most significantly, the Constitution would have lost its supremacy.
• As an example, the amendments that were made during the Emergency would have derailed the democratic founded of our Constitution. If Parliament were indeed supreme, the subsequent amendments would become a part of the Constitution.
• The 39th Amendment prohibited any challenge to the election of the President, Vice-President, Speaker and Prime Minister. This was made to nullify the adverse Allahabad High Court ruling against former Prime Minister Indira Gandhi.
• 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 was prohibited under the 41st Amendment. Thus, if an individual was a governor for only 1 day, he or she get the immunity from any legal proceedings always.

Criticisms about Kesavananda Bharati Case

• The anti-democratic character and more generally the political legitimacy, of the basic structure doctrine, have been questioned by many critics.
• Granville Austin notes that there are several discrepancies between the points contained within the summary signed by the judges and therefore the opinions expressed by them in their separate judgments.
• The crucial sentence in the note relating to Article 368 not enabling Parliament to alter the basic structure was in fact lifted from only one (Justice H.R.Khanna) of the 11 judgments in the case.
• It’s said that one judge’s view became the holding of the bulk of judges. Also, the decision was believed to be delivered hastily without even debating the conclusion within the court to form a majority that didn’t exist.

Criticism of Basic Structure doctrine

• The doctrine doesn’t have a textual basis. There’s no provision stipulating that this Constitution encompasses a basic structure which this structure is beyond the competence of amending power.
• The concept of the “basic structure of the Constitution” can’t be defined. Each judge defines the fundamental structure concept to keep together with his own subjective satisfaction.
• This ends up in the very fact that the validity or invalidity of the Constitution Amendment lies on the non-public or personal  preference of every judge and also the judges will acquire the ability to amend the Constitution
• The attempt by a constitutional court to review the substance of the constitutional amendments would be dangerous for a democratic system in which the amending power belongs to the people or its representatives, not to judges.
• An amendment to a Constitution may be necessary even to change the original intention of the Constitution framers, which may not augur well for the subsequent generation which is to work with the Constitution. Therefore to carry that an amendment not falling within the line with the original intention of the founding fathers isn’t valid.

Conclusion

• The famous case Kesavananda Bharati vs. State of Kerala led to the formation of the basic structure doctrine which went down in history for saving our constitution and restoring the faith in the judiciary while also saving our democracy for which our freedom fighters laid down their lives.
• Because of this, the Kesavananda Bharati case was and will always be having fame in the constitutional history of our nation.
• The basic structure doctrine has been used by the Supreme Court in subsequent judgments to preserve the sanctity and basic character of the Constitution.
• The doctrine has evolved through SC judgments and continues to be
• It forces constitutional amendments to adapt to certain standards or values that maintain the sanctity and spirit of the Constitution.

Practice Question for Mains

1. Trace the evolution of the basic structure doctrine of the Indian constitution. Also critically examine the possible implications of it (250 Words)