Kesavananda Bharati & Doctrine of Basic structure


    In News

    • Recently, at the 83rd All-India Presiding Officers Conference in Jaipur, the Vice President rekindled the debate over the “Basic Structure” doctrine especially in the context of the Supreme Court striking down the National Judicial Appointments Commission Act of 2015.


    • Article 368 of the Indian Constitution defines the amendment in the Indian Constitution in response to new challenges and it also takes into account the unanticipated and unforeseen circumstances which were not in consideration by the constitution makers.
    • The Supreme Court in its landmark 1973 decision in the Kesavananda Bharati case determined that Parliament had the power to modify the Constitution but not its fundamental principles or basic structures.
    • However, this fundamental principle was not defined and has been evolving to add new dimensions since the judgment.
    • Judicial review is the tool which is used by courts to examine and decide the validity of any amendment introduced by the Parliament by way of and can declare a statute as ultra vires or invalid if it breaches any provision of the Constitution.
    • Regardless, the extent of amending powers of the Parliament became a source of endless conflict between the Parliament and the Supreme Court.

    Who was  Kesavananda Bharati?

    • Born in 1940, Kesavananda Bharati was the head to the Edneer Mutt, a Hindu monastery in Kasargod, Kerala who challenged the Constitution (29th Amendment) Act, 1972, which placed the Kerala Land Reforms Act, 1963 and its amending Act into the 9th Schedule of the Constitution.
    • The 9th Schedule was added to the Constitution by the First Amendment in 1951 along with Article 31-B to provide a “protective umbrella” to land reforms laws in order to prevent them from being challenged in court.
    • He argued that this action violated his fundamental right to religion (Article 25), freedom of religious denomination (Article 26), and right to property (Article 31).

    Evolution of Basic structure

    A.K. Gopalan Vs. State of Madras (1950):

    • The Supreme Court held that the protection under Article 21 is available only against arbitrary executive action and not from arbitrary legislative action.
    • Secondly, the Supreme Court held that ‘personal liberty’ means only liberty relating to the person or body of the individual.

    Shankari Prasad Vs. Union of India (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.
    • Therefore, the Parliament can abridge or take away any of the Fundamental Rights by enacting a constitutional amendment act and such a law will not be void under Article 13.

    Berubari Union Case (1960):

    • According to the Supreme Court, Preamble shows the general purposes behind the several provisions in the Constitution and is thus a key to the minds of the makers of the Constitution.
    • However, despite this recognition of the significance of the Preamble, the Supreme Court specifically opined that the Preamble is not a part of the Constitution and thus, it is not enforceable in a court of law.

    Golaknath Vs. State of Punjab (1967):

    • SC held that the Parliament cannot take away or abridge any of the Fundamental Rights.
    • The Court held that the Fundamental Rights cannot be amended for the implementation of the Directive Principles.
    • The Parliament enacted the 24th Amendment Act (1971) which declared that the Parliament has the power to abridge or take away any of the Fundamental Rights by enacting Constitutional Amendment Acts.
    • Also, Parliament through 25th Amendment Act inserted a new Article 31C which held that no law which seeks to implement the socialistic Directive Principles shall be void on the ground of contravention of the Fundamental Rights conferred by Article 14, Article 19, or Article 31.

    Kesavananda Bharati Vs. State of Kerala (1973):

    • It involved a property dispute which was decided by a special bench of the Supreme Court of India consisting of 13 judges which ruled with a 7–6 majority on 24 April, 1973, that Article 368 of the constitution did not provide the Parliament the authority to change the basic structure of the Constitution.
    • The Court propounded what has come to be known as the “Basic Structure of the Constitution” which could not be abrogated even by a constitutional amendment”.

    Indira Gandhi Vs. Raj Narain Case (1975):

    • The doctrine of basic structure of the constitution was reaffirmed and applied by the Supreme Court.
    • SC invalidated a provision of the 39th Amendment Act (1975) which kept the election disputes involving the Prime Minister and the Speaker of Lok Sabha outside the jurisdiction of all courts.

    42nd Amendment Act (1976):

    • The Parliament reacted to this judicially innovated doctrine of ‘basic structure’ by enacting Act to amend Article 368 and declared that there is no limitation on the constituent power of Parliament.
    • Also, no amendment can be questioned in any court on any ground including that of the contravention of any of the Fundamental Rights.

    Minerva Mills Vs. Union of India (1980):

    • SC held that ‘the Indian Constitution is founded on the bedrock of the balance between the Fundamental Rights and the Directive Principles.
    • The Parliament can amend the Fundamental Rights for implementing the Directive Principles, so long as the amendment does not damage or destroy the basic structure of the Constitution.

    Waman Rao Case (1981):

    • Basic Structure doctrine was reiterated to draw a line of demarcation as April 24th, 1973 i.e., the date of the Kesavananda Bharati judgment, and held that it should not be applied retrospectively to reopen the validity of any amendment to the Constitution which took place prior to that date.

    Indra Sawhney and Union of India (1992):

    • SC examined the scope and extent of Article 16(4), which provides for the reservation of jobs in favor of backward classes. It upheld the constitutional validity of 27% reservation for the OBCs with certain conditions (like creamy layer exclusion, no reservation in promotion, total reserved quota should not exceed 50%, etc.)
    • Here, ‘Rule of Law’ was added to the list of basic features of the constitution.

    S. R. Bommai Vs. UoI (1994):

    • The Supreme Court laid down that the Constitution is federal and characterized federalism as its ‘basic feature’.
    • It also observed the fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis-a-vis the states does not mean that the states are mere appendages of the Centre.

    Critical Analysis of Keshvanand Judgement

    Arguments in Support

    Arguments against

    • According to Granville Austin, an American historian of the Indian Constitution, Basic Structure Doctrine strikes a balance between the responsibilities of Parliament and Supreme Court for protecting the seamless web of Indian Constitution.
    • As per Upendra Baxi, a legal scholar, the doctrine facilitates constitutional change paving the way for fundamental, social change through peaceful democratic means.
    • Plurality of opinions yielded in the Kesavananda judgment gave no clarity and thus it is an uncertain authority to limit the amending powers of the Parliament. 
    • It has given rise to :
      • Judicial Activism, in which the court makes decisions that are based, in whole or in part, on the Judge’s personal or political aspects rather than on present or established laws.
      • Judicial Overreach, which is the excessive interference of the judiciary with the legislature and the executive
    • According to Raju Ramachandran, former Additional Solicitor General of India, the Basic Structure Doctrine is anti-democratic because ultimately the court’s own view of its area of competence and effectiveness becomes the only check on the exercise of its own judicial power. 
    • There is also criticism that ultimately the unelected judges have assumed the political power not given to them in the Constitution.

    Way Ahead

    • With the changing requirements of the populace, the constitution also requires amendments to accommodate and manage the strain between the political system and constitutional ideals.
    • Although there is need to respect the judiciary, the vagueness around basic structure needs a revisit considering that Parliamentary sovereignty and autonomy cannot be permitted to be qualified or compromised as it is quintessential to survival of democracy.

    What is “Basic structure”?

    • About: The phrase ‘basic structure’ was recognised for the first time in the historic case of Kesavananda Bharati v. State of Kerala in 1973 by the Supreme Court.
    • Definition: Indian courts define basic structure as inherent features that are built on the basic foundation, i.e., the dignity and freedom of the individual and of supreme importance which cannot by any form of amendment be destroyed.

    Important features:

    o   Supremacy of the Constitution;

    o   Republican and Democratic forms of Government.

    o   Secular character of the Constitution;

    o   Separation of powers between the Legislature, the executive and the judiciary;

    o   Federal character of the Constitution.

    o   Rule of law

    o   Judicial review

    o   Parliamentary system

    o   Rule of equality

    o   Harmony and balance between the Fundamental Rights and DPSP

    o   Free and fair elections

    o   Limited power of the parliament to amend the Constitution

    o   Power of the Indian Supreme Court under Articles 32, 136, 142 and 147

    o   Power of the High Court under Articles 226 and 227

    • Any law or amendment that violates these principles can be struck down by the SC on the grounds that they distort the basic structure of the Constitution.
    • Way ahead: Proponents of the basic structure doctrine consider it to be a safety valve against majoritarian authoritarianism. Without it, it is plausible that Indira Gandhi’s 1975 Emergency could have had far more deleterious effects on the health of Indian democracy.
    • However, opponents claim that the doctrine amounts to judicial overreach over the legislature – something that itself is undemocratic.

    Source: IE