50 years of Kesavananda Bharati: Why the Basic Structure matters

On April 24, 1973, the Supreme Court delivered a judgment which settled the controversial debate over the Constitution's supremacy. The Court delivered what is arguably the most monumental decision in its history in Kesavananda Bharati versus the State of Kerala.

The judgment spans nearly eight hundred pages and is the longest appellate decision of the last century. It laid down the basic structure doctrine, which refers to the idea that certain fundamental features of a Constitution cannot be altered by the legislature through amendments.

In this article, we take a look at the history of the issue before Kesavananda and the importance of the 13-judge Constitution Bench in today's context.

Shankari Prasad Case (1951)

It all started in 1951, when in Shankari Prasad v. Union of India, the zamindars challenged the First Amendment to the Constitution, which inserted two provisions to insulate land reform legislation from judicial scrutiny. One of the several grounds of challenge was that the expression “law” under Article 13(2), which prohibits Parliament from making any laws that abridge or take away fundamental rights, included not only ordinary laws, but also amendments.

In Shankari Prasad, a five-judge Bench of the Supreme Court passed a decision holding that the power of amending the Constitution under Article 368 included the power to amend the fundamental rights guaranteed in Part III as well. In a nutshell, the Court made it clear that amendment to the Constitution cannot be reviewed by courts.

Sajjan Singh case (1965)

After the decision in Shankari Prasad, the validity of the Constitution (Seventeenth Amendment) in 1964 was challenged before a five-judge Bench of the Supreme Court. In Sajjan Singh v. State of Rajasthan, the challenge was tabled with regard to Parliament’s failure to follow the procedure prescribed to amend the Constitution. Although Sajjan Singh had a similar fate to Shankari Prasad, and the Court dismissed the petition unanimously, three judges agreed that fundamental rights cannot be amended. Justices Mohammad Hidayatullah and Janardan Raghunath expressed doubts about the correctness of the opinion/view adopted in Shankari Prasad with regard to the fact that an amendment to the Constitution was not law under Article 13(2) of the Indian Constitution.

Justice Hidayatullah’s opinion gave rise to arguments on amendment of fundamental rights, because he clearly stated that while he agreed (partially) that Seventeenth Amendment was not violative of the State’s power under Article 226 of the Indian Constitution, he held that constitutional amendments can also form a part of the law as defined under Article 13 of the Indian Constitution.

Golaknath case (1967)

The question whether Parliament could amend the fundamental rights was raised again before the Supreme Court in IC Golak Nath versus State of Punjab, where an eleven-judge Bench was constituted by the Supreme Court to hear the challenge to the First, Fourth and Seventeenth amendments to the Indian Constitution. This case conferred upon fundamental rights a ‘transcendental position’.

In this case, the Court reversed its earlier stance that the Fundamental Rights can be amended. It held that fundamental rights are the primordial rights necessary for the development of human personality. They are the rights which enable a man to chalk out his own life in the manner he likes best.

“Fundamental rights cannot be abridged or taken away by the amending procedure in Article 368 of the Constitution. An amendment to the Constitution is “law” within the meaning of Article 13(2) and is therefore subject to Part III of the Indian Constitution.”

In Kesavananda Bharati, the Edneer Mutt in Kerala challenged the Kerala Land Reforms Act, which placed a limit on the extent of land that could be held by a single individual. The Court was called upon to determine issues including whether Parliament had unlimited powers to amend the Constitution or whether there were certain fundamental features of the Constitution that could not be amended.

In a nutshell, it was held that Parliament had the power to amend the Constitution, but at the same time, it did not have the power to destroy or hinder its basic structure. The 7:6 majority held that certain fundamental features of the Constitution, such as the sovereignty of India, democracy, secularism, the federal character of the Constitution and the rule of law, formed part of its basic structure and could not be abrogated or abridged by Parliament. This landmark case became the basis in Indian law on which the judiciary can strike down any amendment passed by Parliament that is in conflict with the basic structure of the Constitution.

Whenever we talk about the Kesavananda Bharati case, one cannot forget the clumsy attempt by the government to review the case. It still remains a mystery as to which bench was constituted to hear the review. On November 12, 1975, the review was posted for the third day of hearing and the Attorney General was to continue his arguments. But as soon as the Bench assembled, the Chief Justice announced,

“This Bench is dissolved.”

The book Nani Palkhivala - The Courtroom Genius, penned by Senior Advocates Arvind P Datar and Soli Sorabjee, gives a brief description of what happened inside the courtroom when the review was being heard. The same is reproduced below:

Chief Justice AN Ray: No, the request (for review) had also come from the petitioners. Ever since the Kesavananda Bharati case, we have been flooded with requests for review from these petitioners.

Palkhivala: I beg your pardon, my Lord. It is impossible that the petitioners had requested a review. Why should they ask for a review which could only damage their case? If the basic feature theory disappears, then no Constitutional amendment can be struck down.

Chief Justice: Even the Tamil Nadu government had asked for a review.

Tamil Nadu Advocate-General: I beg your pardon, my Lord. We never even once asked for a re-view.

Chief Justice: Well, you were all asking for a constitutional amendment to be struck down on the doctrine of basic features. The government said that it could not understand the theory, so the question arose.

Palkhivala: The question would, of course, arise whenever a constitutional amendment is to be structured down on that theory, but that does not mean that it should be reviewed. If a principle has to be reviewed every time that it arises, then every case of the Supreme Court has to be reviewed within a few days.

One of the most spectacular answers given by Nani Palkhivala was when Justice Beg on bench said,

“I don’t know what these basic features are.” To this, Palkhivala replied:

“With the greatest respect, my Lord, it is inconceivable that the Supreme Court of India cannot understand its own judgment. If the Supreme Court cannot understand its own judgment, then who will? I have absolutely no doubt in my mind as to what the basic features are, and anybody who reads the judgment carefully cannot have any doubt.”

Justice Beg then said,

“But I think every article in the Constitution is basic.”

Palkhivala's reply was,

“If you take that view, my Lord, I will be the happiest man, because then the Constitution will remain substantially unchanged throughout."

The review was scheduled without any request from any party and there was nothing to indicate that the basic structure doctrine had created any serious complications in the functioning of Parliament.

A large part of the credit should also go to Govind Swaminathan, a fearless advocate who was then the Advocate General of Tamil Nadu. Without any hesitation, he dramatically got up and called the Chief Justice’s bluff that Tamil Nadu was against the Kesavananda Bharati judgment.

Whenever fundamental rights are infringed upon by executive overreach, the Supreme Court has constantly interfered and upheld the rights guaranteed by the Indian Constitution to the citizens of India.

Recently, Vice-President Jagdeep Dhankhar criticised the Kesavananda Bharati judgment as laying down a wrong precedent.

On the other hand, many sitting and former judges have been giving lectures on the importance of the doctrine. In this regard, reference is made to the Chief Justice KK Usha Memorial Lecture on the topic Transformative Constitutionalism, which was delivered by Justice BV Nagarathna of the Supreme Court. In her lecture, the judge said that the Constitution of India is stronger now because of the Kesavananda Bharati judgment, and that the basic structure doctrine is a fine example of transformative constitutionalism.

"Judges must have the pulse of the people whom they adjudicate, in their hearts, and justice in their minds while interpreting the laws and enforcing rights," said Justice Nagarathna in her speech.

Since Kesavananda Bharati, the Indian Constitution has been reformed, transformed and re-interpreted. Some of the finest examples are Articles 14, 15 and 21 of the Indian Constitution. Who would have thought that the ambit of Article 21 could have been interpreted in such a wide manner? Even the right to shelter, which has not been mentioned specifically in the Indian Constitution, has been given shelter under Article 21. Many landmark cases like Ajay Maken and Olga Tellis have held it as a basic fundamental right.

Needless to say, the basic structure doctrine is here to stay, until and unless someone decides to reverse the concept of colorable legislation and does something indirectly, which cannot be done directly.

Areeb Uddin Ahmed is an Advocate based and practising in New Delhi.