Remembering How Kesavananda Bharati Case Saved Fundamental Rights

The verdict in the Kesavananda Bharati case remains a landmark judgment in India’s judicial history.

Kesavananda Bharati, the head of the Edaneer Mutt in Kasargod district of Kerala, fought against the violation of fundamental rights by the government.

(Photo Courtesy: Vice President of India/Twitter, Edited by Kamran Akhter/The Quint)

A seer’s fight for justice laid down the framework to save the fundamental rights of citizens 47 years ago. The verdict in the Kesavananda Bharati case remains as a landmark judgment in the judicial history of India as it redefined the doctrine of the basic structure of the Constitution.

Kesavananda Bharati, the head of the Edaneer Mutt in Kerala’s Kasargod district, who fought against the violation of fundamental rights by the government passed away on Sunday, 6 September.

What Was the Kesavananda Bharati Case About?

Kesavananda Bharati, the seer of the Edaneer Mutt in Kasargod district of Kerala, moved the Supreme Court on 21 March 1970, seeking relief against the Kerala Land Reforms (Amendment) Act, 1969 and the 24th, 25th and 29th amendments of the Constitution.

Kesavananda Bharati sought relief on the ground that his fundamental rights protected under Article 25 (Right to practice and propagate religion), Article 26 (Right to manage property of a religious denomination) and Article 31 (Right to property) of the Constitution had been affected by the above mentioned amendments.

A 13-judge Constitution bench headed by the then Chief Justice of India SM Sikri on 24 April 1973 by a 7-6 majority delivered a verdict that the ‘basic structure of the Constitution’ cannot be amended by Parliament.

The court said that fundamental principles – federalism, secularism, democracy, supremacy of the Constitution, separation of power – are part of the basic structure of the Constitution and any amendment affecting the fundamental rights as mentioned in Part-III of the Constitution will be subjected to judicial review.

The then Chief Justice of India SM Sikri read out the majority judgment with Justices KS Hegde, AK Mukherjea, JM Shelat, AN Grover, P Jaganmohan Reddy, and HR Khanna on his side. Justices AN Ray, DG Palekar, KK Mathew, MH Beg, SN Dwivedi, and YV Chandrachud dissented.

This was the longest-heard case in the judicial history of India. The hearing continued for 69 days with the legendary Constitution lawyers Nani Palkhivala, Fali Nariman and Soli Sorabjee representing Kesavanand Bharati. It is also the only case in the Supreme Court till date where the largest bench of 13 judges delivered the verdict.

The Doctrine of Basic Structure

The phrase ‘Basic Structure’ was introduced for the first time in the Golaknath case by advocate MK Nambiar, one of the best Constitution lawyers of the country in 1967.

Departing from its earlier position, the Supreme Court for the first time held that Fundamental Rights cannot be amended, and Parliament does not have absolute power to amend the Constitution as defined under Article 368.

After the Kesavananda Bharati case, in the Minerva Mills case judgment in 1980, the Supreme Court upheld that the judicial review and balance between the Fundamental Rights and the Directive Principles of State Policy are part of the basic structure.

In the last four decades, the Supreme Court has interpreted the doctrine of basic structure several times to include many more features through various landmark judgments. Several features like the parliamentary system of government, the principle of free and fair elections, welfare state etc have been made a part of the basic structure as defined in Waman Rao case (1981), Indra Sawhney and Union of India (1992), and the SR Bommai case (1994).

The Basic Structure Test for Parliament

The power of Parliament to amend the Constitution came under scrutiny for the first time in the Shankari Prasad case in 1951.

In its verdict, the Supreme Court held that Parliament has absolute power to bring any amendment to the Constitution. The same position was maintained by the apex court in the Sajjan Singh case in 1965.

The 24th amendment was introduced in 1971 by the then Indira Gandhi government to give an absolute power to Parliament to amend any part of the Constitution as per the procedures elaborated under Article 368. This was done to annul the Supreme Court’s position in the Golaknath case.

This absolute authority of Parliament to even snatch away the fundamental rights was challenged in the Kesavananda Bharati case. Since the Kesavananda Bharati judgment, the Constitution amendments have been made to pass through the basic structure test.

The doctrine of basic structure remains open-ended and the Supreme Court on several occasions has added more features to this principle while striking down laws which it found to be violative of this principle.