April 24, 2023 marks 50th anniversary of the Kesavananda Bharati judgment in which the Supreme Court defined the constitution’s basic structure.
- The KB case was the longest argued case with the largest bench (13 judges.
- The 13 judge-bench, the largest bench ever, included Chief Justice S. M. Sikri and Justices J. M. Shelat, K. S. Hegde, A. N. Grover, A.N. Ray, P. Jaganmohan Reddy, D. G.D. G. Palekar, H. R. Khanna, K. K. Mathew, M. H. Beg, S. N. Dwivedi, A. K. Mukherjea, Y. V. Chandrachud.
- It said that the Parliament could only amend the Constitution to the extent that it did not violate its basic features such as the supremacy of the Constitution, the secular nature of the state, the democratic structure, etc.
- Earlier in 1951, the Supreme Court had ruled that he Indian Parliament had the unrestricted power to amend the Constitution (Shankari Prasad’s case). The judgment emplied that even the fundamental rights of citizens could cease to exist.
- However, in Golak Nath’s case, the Apex Court held that abridgement of citizens’ fundamental rights through amendment would be void.
- This led to the 24th amendment by which even fundamental rights could be repealed or amended. This was challenged in Keshavananda Bharti’s case.
Executive’s Power To Amend The Constitution
- The Constitution gives Parliament and the state legislatures the power to make laws within their respective jurisdictions.
- However, this power is not absolute in nature.
- The Constitution vests in the judiciary, the power to adjudicate upon the constitutional validity of all laws.
- If the judiciary thinks that a certain law violates any provision of the Constitution, the Supreme Court can declare such a law invalid or ultra vires.
- However, our Constitution also has provisions that ensure that the Constitution should not remain rigid and could respond to the changing times.
- Hence, the founding fathers of our Constitution gave Parliament the power to amend the Constitution.
- Article 368 of the Constitution gives the impression that Parliament’s amending powers are absolute and encompass all parts of the document. But the Supreme Court through various judgments puts a brake to the executive’s power to amend the constitution.
Kesavananda Bharati judgment
- The .Kesavananda Bharati judgment was the result of a petition by Kesavananda Bharati, the head of a Hindu monastery in Kerala’s Kasargod district.
- He had challenged the state government’s land reform acts that would result in the institution losing its holdings.
- The challenge was to the Constitution 24th, 25th and 29th Amendments. By the Constitution 29th Amendment the Kerala Land Reforms laws were included in Schedule IX.
- In the Kesavananda Bharati judgment the apex court pronounced that Parliament could not distort, damage or alter the basic features of the Constitution under the pretext of amending it.
- The phrase ‘basic structure’ itself cannot be found in the Constitution.
- The Supreme Court recognised this concept for the first time in the historic Kesavananda Bharati case in 1973.
- The Supreme Court declared that Article 368 did not enable Parliament to alter the basic structure or framework of the Constitution and parliament could not use its amending powers under Article368 to ‘damage’, ’emasculate’, ‘destroy’, ‘abrogate’, ‘change’ or ‘alter’ the ‘basic structure’ or framework of the constitution.
Basic Structure Of The Constitution According To The Kesavanada Verdict
- The basic structure consists of supremacy of the Constitution; republican and democratic form of government; secular character of the Constitution; separation of powers between the Legislature, the Executive and the Judiciary; federal character of the Constitution.
- Each judge laid out separately, what he thought were the basic or essential features of the Constitution. There was no unanimity of opinion within the majority view either.
Sikri, C.J. explained that the concept of basic structure included:
- supremacy of the Constitution
- republican and democratic form of government
- secular character of the Constitution
- separation of powers between the legislature, executive and the judiciary
- federal character of the Constitution
Shelat, J. and Grover, J. added two more basic features to this list:
- the mandate to build a welfare state contained in the Directive Principles of State Policy
- unity and integrity of the nation
Hegde, J. and Mukherjea, J. identified a separate and shorter list of basic features:
- sovereignty of India
- democratic character of the polity
- unity of the country
- essential features of the individual freedoms secured to the citizens
- mandate to build a welfare state
Jaganmohan Reddy, J. stated that elements of the basic features were to be found in the Preamble of the Constitution and the provisions into which they translated such as:
- sovereign democratic republic
- parliamentary democracy
- three organs of the State
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The raison d’etre for the basic structure doctrine apparently is: Every measure or action-executive or legislative-has to conform to the limits set by by the Constitution.
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