Kesavananda Bharati judgment: The Major Minority

“I often wonder whether we do not rest our hopes too much upon Constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no Constitution, no law, no court can save it” – Judge Learned Hand.        

The battle for power between the various organs of the State in general, and the Executive and the Judiciary in particular, is as old as the Constitution itself. While there are several prominent cases that immediately come to mind for having hastened or hindered the cause of Indian democracy, none can remotely match up to the legend that is Kesavananda Bharati. While this case has been discussed, written about and cherished for over forty years, rarely has the correctness of it been questioned.

While there are several crucial aspects of this case, the most prominent aspect and the one that will be discussed here is the adoption of the Basic Structure Doctrine. This case arose when the leader of a Hindu mutt in Kerala HH Sri Kesavananda Bharati challenged the Kerala government’s attempts, under two state land reform acts, to impose restrictions on the management of its property. He also challenged three Constitutional amendments – the 24^th, 26^th and 29^th amendments – introduced by the Indira Gandhi government as he apprehended that he would not succeed in light of those amendments.

The judgment delivered on April 24, 1973 was immediately the subject of controversy. For one, there was a lack of a clear majority judgment, as the 13 judges delivered 11 different judgments in what is said to be a 7:6 majority. It is unfair and unfortunate that the dissent in Kesavananda Bharati has perpetually been dismissed without a deeper look, only on the basis of personal allegations of depravity against the judges pronouncing it, even though there were two judgments of the Supreme Court itself preceding Kesavananda Bharati, that held the very same thing.

To understand the import and utility of the judgment, it is important to focus on three aspects – the judgment itself; the socio- legal and political environment in the country before, during and after the pronouncement of this judgment; and last but most importantly, the Constituent Assembly debates, in order to understand if at all there was meant to be a Basic Structure of the Constitution.

The question sought to be answered was whether the power of Parliament to amend the Constitution as per Article 368 is unlimited, or whether there are ‘implied limitations’, in the exercise of such a power. To put it simply, can the Parliament amend every part of the Constitution as per the procedure provided, or are certain parts of the Constitution, that supposedly form its core, more sacred than the rest of the provisions and hence cannot be altered under any circumstances?

Chief Justice SM Sikri held that Parliament can amend every Article in the Constitution, but this power of amendment is not absolute inasmuch as it does not enable Parliament to abrogate or take away fundamental rights or to completely change the fundamental features of the Constitution so as to destroy its identity. These fundamental features of the Constitution are what he called its “Basic Structure”.

Justices JM Shelat and AN Grover agreed with him in a separate judgment of their own. Justices KS Hegde and AK Mukherjea gave a joint judgment which, although said to be concurring with the majority, has not in fact done so in totality. They have held that fundamental rights can be amended by Parliament in exercise of the power conferred to it under Article 368. However, they have, in their conclusion, mentioned that in the exercise of this aforementioned power, the Parliament cannot emasculate the basic elements or fundamental features of the Constitution. What these basic features are, is unclear.

Justice Jagmohan Reddy’s judgment concludes in the same manner and is thus, yet again, not a completely concurring judgement. Justice HR Khanna’s judgment is a very important one, as it has been widely believed to have tipped the scale in favor of the majority opinion that formulated the Basic Structure doctrine.

It is crucial to note that although Justice Khanna has mentioned the phrase “Basic Structure” in his judgment and has spoken about the importance of protecting it, he has in the very same breath said that the power of amendment is plenary and includes within itself the power to amend the various Articles of the Constitution, including those relating to fundamental rights, as well as those which may relate to essential features.

He has also said that no part of a fundamental right can claim immunity from the amendatory process by being described as the essence or core of that right. He states that the power of amendment would also include within itself the power to add, alter or repeal the various Articles. To club this judgment with that of the majority just because he has used the phrase “basic structure” is preposterous.

The individual dissenting opinions of Justices AN Ray, DG Palekar, KK Mathew, MH Beg, SN Dwivedi and YV Chandrachud are, on the other hand, crisp and unambiguous. They have all explicitly held that there are no inherent or implied limitations on the power of the Parliament to amend any part of the Constitution.

After  examining the individual opinions of the learned judges in this case, can it be said that Parliament, in the exercise of its constituent power, does not have the right to amend Fundamental Rights? In my opinion, that cannot be said because 10 out of the 13 judges have held that Parliament is not barred from amending fundamental rights.

The second question to be asked is: Can it be said that the majority has upheld the Basic Structure doctrine? The answer to this is slightly more complex. Although 7 out of the 13 judges have used the phrase “Basic Structure”, they have substantially differed in their individual understanding of what must constitute this Basic Structure. In the absence of such consensus can it be held to be a majority judgment? In my opinion, not.

It is now important to move on to answer more crucial questions, namely – assuming that the majority opinion coined the phrase “Basic Structure”, was it a correct judgment? Secondly, did the judgment serve its intended purpose?

The best place to begin answering these questions is the Constituent Assembly Debates. A plain reading of the Debates will show that the Assembly has made no distinction between essential and non-essential features of the Constitution. There is no special significance given to some provisions of the Constitution as opposed to others. If at all an elevated status must deemed to have been given to some features of the Constitution, the same must be deduced from Article 368.

While most provisions of the Constitution can be amended by a majority of the total membership of each House and a two-thirds majority of the members present and voting coupled with a Presidential assent, some provisions have been specifically mentioned whose amendment will require not just the above mentioned majority but also a ratification by one-half of the total number of states.

These provisions relate to Election of President (Article 54), Manner of election of President (Article 55), Extent of executive power of the Union (Art. 73), Extent of Executive power of the State (Article 162), High Courts for Union Territories (Article 241), Chapter IV of Part V, Chapter V of Part VI, Chapter I of Part XI, the Lists in the Seventh Schedule, Representation of the States in Parliament and the amending power of Parliament.

If at all there has to be a Basic Structure, then that elevated status must be given to these Articles mentioned in Article 368, not to make them unamendable, but to recognize their fundamental importance.

There is definitely no intention expressed to make any part of the Constitution unamendable, to the extent that the topic was not even debated. The fact that the First Constitutional amendment, which made important changes to fundamental rights, was passed without the power to amend such rights being questioned, is proof that the intention was not to make Part III unamendable.

Some judges have said that these vague features which will constitute the Basic Structure may be deduced from the Preamble to the Constitution. Had this been intended, then there is no reason why the Constituent Assembly would not expressly mention it.

Besides, how can the Preamble be the source of these unamendable basic features when the Preamble itself is a part of the Constitution, and is as such subject to amendment? To hold otherwise is to stray from the intention of the founding fathers.

So, if the Constituent Assembly debates did not mention the need for any Basic Structure, from where did this term surface? The doctrine that is said to cushion democracy in our country, was ironically born in the jurisprudence of a neighboring country known for its undemocratic ideology more than anything else.

The Chief Justice of Pakistan Alvin Cornelius first coined the phrase in the case of Fazulal Quader Chawdry v. Mohd. Abdul Haque [1963 PLD 486(SC)]. The inherent flaws in the Basic Structure doctrine could not save the fundamental rights of the people of its country of origin, so its failure in our country was only a matter of time.

A widely perpetuated myth is that the Basic Structure doctrine has never failed us. Within two years of pronouncing the Kesavananda Bharati judgment, came Indira Gandhi’s ominous Emergency. The Basic Structure doctrine sat meekly as a paper tiger and watched Indira Gandhi crush democracy to crumbs. There is another myth that it is this doctrine that saved Indian democracy. Democracy is by, for and of the people. It is this voice of the people, and not the Courts, that brought an imperious Indira to her knees.

The Basic Structure doctrine has, in effect, not upheld the supremacy of the Constitution. What it has upheld in effect, is the supremacy of the judiciary and that has evidenced itself in various judgments in the following years. The Court has repeatedly ballooned the contours of the Basic Structure using the certificate of authority given to it by Kesavananda Bharati, and in the process, imposed upon the people of India its own morality and ideology from time to time.

That the Basic Structure doctrine was a vacuous concept was further highlighted with the  passing of the 42^nd amendment Act in 1976. Although the amendment didn’t survive in its entirety, what remains of it is enough to expose the flaws in the Basic Structure doctrine.

The words ‘socialist’ and ‘secular’ were added to the Preamble to the Constitution, thus completely changing the nature of the Constitution as it were. That it has survived the Basic Structure challenge shows that the Court excuses from the purview of the doctrine what seems morally appealing to it.

What is even more damaging is that these subsequently added words are now immortalized in Indian constitutional jurisprudence thanks to the Basic Structure doctrine, which makes them immune from challenge. If the Basic Structure is so sacrosanct, how did it permit the Preamble to be amended? A common explanation advanced is that this was permitted because these two words did not change the nature of the Constitution at all, but only explicitly expressed, what it already stood for. This is completely erroneous and as far from the truth as it gets.

In fact, Dr. Ambedkar specifically rejected Prof. KT Shah’s suggestion to add the words ‘’socialist’’ and ‘’secular’’ to the Constitution. He famously said that the Constitution is,

“merely a mechanism for the purpose of regulating the work of the various organs of the State. It is not a mechanism where by particular members or particular parties are installed in office. What should be the policy of the State, how the Society should be organised in its social and economic side are matters which must be decided by the people themselves according to time and circumstances.

It cannot be laid down in the Constitution itself, because that is destroying democracy altogether. If you state in the Constitution that the social organisation of the State shall take a particular form, you are…taking away the liberty of the people to decide what should be the social organisation in which they wish to live.”

As far as the term “secular” is concerned, not only did he reject any attempt to add it to the Constitution, but as the book A History of State and Religion in India mentions, Dr. Ambedkar in fact reminded members of the Lok Sabha in 1951, that continuous references in Parliament and the media to India being a secular state, did not reflect what the Constitution was intended to mean.

Newer features have thus been continuously added to this premium list that is “basic”, automatically giving them the immunity that the Basic Structure enjoys. The doctrine has been tweaked at regular intervals to accommodate judicial ideology and morality.

The judiciary, in fact, very recently relied on the Basic Structure to strike down the 99^th Constitutional Amendment Act, which sought to set up a National Judicial Accountability Commission to replace the current system of appointment of judges by the Collegium system. Reliance on a principle coined by judges themselves to uphold the insularity and independence of the judiciary has irony writ large on its face.

The Basic Structure doctrine has put the judiciary in the exact position of unlimited power that it sought to prevent the Parliament from occupying. Hormasji Seervai had made an argument in Kesavananda Bharati that the power of amendment conferred upon Parliament must be coextensive with the power of judicial review conferred upon the judiciary, because otherwise the judiciary would be supreme. This argument was opposed, saying that the power of judicial review ensures the supremacy of the Constitution and not the judiciary, but the same cannot be said about the amending power of Parliament.

Not only does this argument show a fundamental lack of respect for electoral democracy, but it has also been proven wrong inasmuch as this doctrine has undoubtedly contributed to the supremacy of the judiciary. Judicial review does not necessarily reflect what the Constitution says. It could, and does often, reflect what the Court thinks the Constitution meant, thereby replacing the wisdom of the Constituent Assembly with that of the Court. Ironically, this judgment itself is a perfect example of this argument.

The proposition that the Constitution makers drafted the world’s lengthiest Constitution and still somehow forgot to incorporate a doctrine as important as the Basic Structure is both amusing and fanciful. Maybe it is time for the strong and eloquent judges of the Supreme Court of India to replace this and restore the Constitution to the glory of its origin. Maybe it is time to reargue Kesavananda Bharati.

The author is an Advocate practicing in the Bombay High Court and the Supreme Court of India. You can write to her at aankhi.ghosh@yahoo.com.

Disclaimer: The views expressed in this article are of the author and Bar & Bench does not necessarily hold the same views. Bar & Bench does not take responsibility for the same.