Polity & Governance Prelims cum Mains

Kesavanada Bharati, whose petition led to landmark verdict on Constitution

Why to Read Now ??

  • Kesavananda Bharati Swamiji, the sole unwitting petitioner in the historic Fundamental Rights case which prevented the nation from slipping into a totalitarian regime, died on Sunday.
  • Kesavananda Bharati was the head seer of the Edneer or Jagadguru Shankaracharya Samsthanam Mutt in Kasaragod district of Kerala since 1961.
  • The Mutt belongs to the Shankaracharya tradition.
  • The mutt is believed to have been established by Totakacharya, one of the first four disciples of Adi Shankaracharya.
  • Challenged Kerala Land Reforms Legislation
    • Kesavananda Bharati challenged the Kerala land reforms legislation in 1970.
    • He moved the Supreme Court, challenging the Kerala government’s takeover of land owned by the mutt as per the land reforms Act of 1969.
    • In his petition, Bharati had sought enforcement of rights guaranteed under Article 25 (Right to practice and propagate religion), Article 26 (Right to manage religious affairs), Article 14 (Right to equality), Article 19(1) (f) (freedom to acquire property), Article 31 (Compulsory Acquisition of Property).
    • He had prayed that provisions of the Kerala Land Reforms Act, 1963 (Act 1 of 1964) as amended by the Kerala Land Reforms (Amendment) Act 1969 (Act 35 of 1969) be declared unconstitutional, ultra vires and void.
    • During pendency of the writ petition, the Kerala Land Reforms (Amendment) Act 1971 was passed and it received assent of the President on August 7, 1971.
  • Scope of the Case Widened
    • It was senior advocate Nani Palkhivala (representing Swamiji) who extended the ambit of the case to challenge a series of constitutional amendments introduced by the Indira Gandhi government granting unlimited power to Parliament to alter the Constitution.
  • Outcome of the Case
    • The Kesavananda Bharati judgment was a landmark ruling in which the Supreme Court announced the Basic Structure doctrine.
  • Statistics of the Case
    • The case was heard by a Bench of 13 judges- the largest formed in the Supreme Court.
    • The Bench gave 11 separate judgments that agreed and disagreed on many issues but a majority judgment of seven judges was stitched together by then Chief Justice of India S M Sikri on the eve of his retirement.
    • It was heard over 68 working days spread over 6 months.
    • The 13 judge bench gave a 7-6 ruling that constitutional amendments should not alter the “basic structure” of the Constitution.
    • It is often said that it was the judgement that ” saved democracy“.
  • The case was primarily about the extent of Parliament’s power to amend the Constitution.
  • First, the court was reviewing a 1967 decision in Golaknath v State of Punjab which, reversing earlier verdicts, had ruled that Parliament cannot amend fundamental rights.
  • Second, the court was deciding the constitutional validity of several other amendments.
  • Notably, the right to property had been removed as a fundamental right and Parliament had also given itself the power to amend any part of the Constitution and passed a law that it cannot be reviewed by the courts.
  • For Democracy of India
    • Introduced the Doctrine of Basic Structure
      • The ruling of Keshvananda Bharti case is considered among the most consequential decisions by the Supreme Court as it set out the “basic structure” of the Constitution that Parliament cannot amend.
      • While the court said that Parliament had vast powers to amend the Constitution, it drew the line by observing that certain parts are so inherent and intrinsic to the Constitution that even Parliament cannot touch it.
      • These inherent and intrinsic elements of the Constitution came to be known as the ‘Basic Structure’ of the Constitution.
      • The Basic Structure doctrine limited Parliament’s power to make drastic amendments that may affect the core values enshrined in the Constitution like secularism and federalism.
  • Judicial Review of Parliament’s Laws
    • The verdict upheld the power of the Supreme Court to judicially review laws of Parliament.
  • Sanctity of Fundamental Rights
    • In its majority ruling, the court held that fundamental rights cannot be taken away by amending them.
  • Separation of Powers
    • It evolved the concept of separation of powers among the three branches of governance — legislative, executive and the judiciary.
  • Strengthened Democracy
    • The ruling has cemented the rejection of majoritarian impulses to make sweeping changes or even replace the Constitution.
    • The judgment underlined the foundations of a modern democracy laid down by the makers of the Constitution.
  • For Keshvananda Bharti
    • However, despite the ruling that Parliament cannot breach fundamental rights, the court upheld the amendment that removed the fundamental right to property.
    • The court ruled that in spirit, the amendment would not violate the “basic structure” of the Constitution.
    • Prelims Kesavananda Bharati, in fact, lost the case.
    • But as many legal scholars point out, the government did not win the case either.
  • Tussle between Executive and Judiciary
    • The executive vs judiciary manoeuvres displayed in the amendments ended with the Kesavananda Bharati case, in which the court had to settle these issues conclusively.
    • As a result of the verdict, the judiciary faced its biggest litmus test against the executive.
    • The Indira Gandhi-led government did not take kindly to the majority opinion.
    • The aftermath of the judgment saw the supersession of three judges (J M Shelat, A N Grover and K S Hegde) who were part of the majority verdict of the Supreme Court for Chief Justiceship.
    • They resigned in protest amidst public furore.
    • Justice A N Ray, who had dissented against the majority verdict, was instead appointed CJI.
    • The supersession resulted in a decades-long continuing battle on the independence of the judiciary and the extent of Parliament’s power to appoint judges.
  • For Political Landscape
    • Politically, the case represented the fight for supremacy of Parliament led by then Prime Minister Indira Gandhi.
  • Origin
    • The origins of the basic structure doctrine are found in the German Constitution which, after the Nazi regime, was amended to protect some basic laws.
    • The original Weimar Constitution, which gave Parliament to amend the Constitution with a two-thirds majority, was in fact used by Hitler to his advantage to made radical changes.
    • Learning from that experience, the new German Constitution introduced substantive limits on Parliament’s powers to amend certain parts of the Constitution which it considered ‘basic law’.
  • Basic Structure Doctrine in India
    • In India, the basic structure doctrine has formed the bedrock of judicial review of all laws passed by Parliament.
    • No law can impinge on the basic structure.
    • What the basic structure is, however, has been a continuing deliberation.
    • While parliamentary democracy, fundamental rights, judicial review, secularism are all held by courts as basic structure, the list is not exhaustive.

Evolution of Basic Structure of Indian Constitution

Basic Structure Doctrine: The Amendment of the Constitution

It started with validity challenge of Amendment of FR’s-

Parliament action- Right to property is scraped as Fundamental right by 1st Amendment act

Shankari Prasad case (1951)

  • The constitutional validity of the First Amendment Act (1951), which curtailed the right to property, was challenged.
  • 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. (Validate the first amendment i.e. right to property is no more FR)
  • The word ‘law’ in Article 13 includes only ordinary laws and not the constitutional amendment acts (constituent laws).
  • 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
Seventeenth Amendment Act (1964), which inserted certain state acts in the Ninth Schedule, was challenged.  

Golak Nath case (1967)

  • Constitutional validity of the Seventeenth Amendment Act (1964), which inserted certain state acts in the Ninth Schedule, was challenged.
  • The Supreme Court ruled that the Fundamental Rights are given a ‘transcendental and immutable’ position and hence, the Parliament cannot abridge or take away any of these rights.
The Parliament reacted to the Supreme Court’s judgement in the Golak Nath case (1967) by enacting the 24th Amendment Act (1971). This Act amended Articles 13 and 368. It declared that the Parliament has the power to abridge or take away any of the Fundamental Rights under Article 368 and such an act will not be a law under the meaning of Article 13.  

Kesavananda Bharati case (1973)

  • Overruled the Golak Nath case decision.
  • Upheld the validity of the 24th Amendment and stated that parliament has power to abridge or take away any of  FR.
  • Laid down a new doctrine of basic structure.
  • It ruled that the constituent power of Parliament under Article 368 does not enable it to alter the ‘basic structure of the constitution.
Parliament reaction to Kesavanada Case 1973- 42nd Amendment act 1976 This Act amended Article 368 and declared that there is no limitation on the constituent power of Parliament and no amendment can be questioned in any court on any ground including that of the contravention of any of the Fundamental Rights. Means excluded the judicial review.

Minerva mill case 1980-

  • Invalidated the 42nd Amendment as it excluded the judicial review which is basic feature of the constitution.
  • Parliament cannot, under article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic features. The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one

Waman Rao case 5 (1981)

  • The Supreme Court adhered to the doctrine of the ‘basic structure’ and further clarified that it would apply to constitutional amendments enacted after April 24, 1973 (i.e., the date of the judgement in the Kesavananda Bharati case).

Elements of basic structure-

  • Supreme Court is yet to define or clarify as to what constitutes the ‘basic structure
    • Supremacy of the Constitution
    • Sovereign, democratic and republican nature of the Indian polity
    • Secular character of the Constitution
    • Separation of powers between the legislature, the executive and the judiciary
    • Federal character of the Constitution
    • Unity and integrity of the nation
    • Welfare state (socio-economic justice)
    • Judicial review  (42nd Amendment Act 1976, invalidated by SC in Minerva Mill case 1980)
    • Freedom and dignity of the individual
    • Parliamentary system
    • Rule of law
    • Harmony and balance between Fundamental Rights and Directive Principles
    • Principle of equality
    • Free and fair elections
    • Independence of Judiciary
    • Limited power of Parliament to amend the Constitution (Minerva Mill Case 1980)

Effective access to justice

  • Principle of reasonableness
  • Powers of the Supreme Court under Articles 32, 136, 141 and 142

Amendment Procedure –

  • Under article 368
    • Can be initiated only by the introduction of a bill for the purpose in either House of Parliament and not in the state legislatures.
    • The bill can be introduced either by a minister or by a private member and does not require prior permission of the president.
    • The bill must be passed in each House by a special majority, that is, a majority (that is, more than 50 per cent) of the total membership of the House and a majority of two-thirds of the members of the House present and voting.
    • Each House must pass the bill separately. In case of a disagreement between the two Houses, there is no provision for holding a joint sitting of the two Houses for the purpose of deliberation and passage of the bill.
    • If the bill seeks to amend the federal provisions of the Constitution, it must also be ratified by the legislatures of half of the states by a simple majority, that is, a majority of the members of the House present and voting.
    • After duly passed by both the Houses of Parliament and ratified by the state legislatures, where necessary, the bill is presented to the president for assent.
    • Prelims The president must give his assent to the bill. He can neither withhold his assent to the bill nor return the bill for reconsideration of the Parliament.
    • After the president’s assent, the bill becomes an Act (i.e., a constitutional amendment act) and the Constitution stands amended in accordance with the terms of the Act.

Types of Amendment

Amendment  type Simple majority of parliament Special majority  > 50% of Total membership & 2/3 of present member Special Majority and consent of state > 50% of Total membership & 2/3 of present member Half of state legislature with simple majorityUnder Article Not under Art. 368 Art. 368     Art. 368

Article 368 provides for two types of amendments, that is, by a special majority of Parliament and also through the ratification of half of the states by a simple majority. But, some other articles provide for the amendment of certain provisions of the Constitution by a simple majority of Parliament, that is, a majority of the members of each House present and voting (similar to the ordinary legislative process). Notably, these amendments are not deemed to be amendments of the Constitution for the purposes of Article 368.

The Constitution can be amended in three ways:

  1. Amendment by simple majority of the Parliament
  2. Amendment by special majority of the Parliament
  3. Amendment by special majority of the Parliament and the ratification of at least half of the state legislatures.

A brief description of the above types has been laid down below.

1. By Simple Majority of Parliament

A number of provisions in the Constitution can be amended by a simple majority of the two houses of Parliament outside the scope of Article 368. These provisions include:

  • Admission or establishment of new states.
  • Formation of new states and alteration of areas, boundaries or names of existing states.
  • Abolition or creation of legislative councils in states.
  • Second Schedule-emoluments, Allowances, privileges and so on of the president, the governors, the Speakers, judges, etc.
  • Quorum in Parliament.
  • Salaries and allowances of the members of Parliament.
  • Rules of procedure in Parliament.
  • Privileges of the Parliament, its members and its committees.
  • Use of English language in Parliament.
  • Number of puisne judges in the Supreme Court.
  • Conferment of more jurisdiction on the Supreme Court.
  • Citizenship-acquisition and termination.
  • Elections to Parliament and state legislatures.
  • Delimitation of constituencies.
  • Union territories
  • Fifth Schedule-administration of scheduled areas and scheduled tribes.
  • Sixth Schedule-administration of tribal areas.

2. By Special Majority of Parliament

  • The majority of the provisions in the Constitution need to be amended by a special majority of the Parliament, that is, a majority (that is, more than 50 per cent) of the total membership of each House and a majority of two-thirds of the members of each House present and voting. The expression ‘total membership’ means the total number of members comprising the House irrespective of fact whether there are vacancies or absentees.
  • The special majority is required only for voting at the third reading stage of the bill but by way of abundant caution the requirement for special majority has been provided for in the rules of the Houses in respect of all the effective stages of the bill.
  • The provisions which can be amended by this way includes:
    • Fundamental Rights;
    • Directive Principles of State Policy; and
    • All other provisions which are not covered by the first and third categories.

3. By Special Majority of Parliament and Consent of States

Those provisions of the Constitution which are related to the federal structure of the polity can be amended by a special majority of the Parliament and also with the consent of half of the state legislatures by a simple majority. If one or some or all the remaining states take no action on the bill, it does not matter; the moment half of the states give their consent, the formality is completed. There is no time limit within which the states should give their consent to the bill.

The following provisions can be amended in this way:

  • Election of the President and its manner.
  • Extent of the executive power of the Union and the states.
  • Supreme Court and high courts.
  • Distribution of legislative powers between the Union and the states.
  • Any of the lists in the Seventh Schedule.
  • Representation of states in Parliament.
  • Power of Parliament to amend the Constitution and its procedure (Article 368 itself).

Criticism-

  • There is no provision for a special body like Constitutional Convention (as in USA) or Constitutional Assembly for amending the Constitution. The constituent power is vested in the Parliament and only in few cases, in the state legislatures.
  • The power to initiate an amendment to the Constitution lies with the Parliament. Hence, unlike in USA, the state legislatures cannot initiate any bill or proposal for amending the Constitution except in one case, that is, passing a resolution requesting the Parliament for the creation or abolition of legislative councils in the states. Here also, the Parliament can either approve or disapprove such a resolution or may not take any action on it.
  • Major part of the Constitution can be amended by the Parliament alone either by a special majority or by a simple majority. Only in few cases, the consent of the state legislatures is required and that too, only half of them, while in USA, it is three-fourths of the states.
  • The Constitution does not prescribe the time frame within which the state legislatures should ratify or reject an amendment submitted to them. Also, it is silent on the issue whether the states can withdraw their approval after according the same.
  • There is no provision for holding a joint sitting of both the Houses of Parliament if there is a deadlock over the passage of a constitutional amendment bill. On the other hand, a provision for a joint sitting is made in the case of an ordinary bill.
  • The process of amendment is similar to that of a legislative process. Except for the special majority, the constitutional amendment bills are to be passed by the Parliament in the same way as ordinary bills.
  • The provisions relating to the amendment procedure are too sketchy. Hence, they leave a wide scope for taking the matters to the judiciary.

Quote by different personalities-

Pt. JL Nehru

“While we want this Constitution to be as solid and permanent as we can make it, there is no permanence in a Constitution. There should be a certain flexibility. If you make any Constitution rigid and permanent, you stop the nation’s growth, the growth of a living, vital, organic people”

Dr. BR Ambedkar

“The Assembly has not only refrained from putting a seal of finality and infallibility upon this Constitution by denying the people the right to amend the Constitution as in Canada or by making the amendment of the Constitution subject to the fulfilment of extraordinary terms and conditions as in America or Australia, but has provided for a facile procedure for amending the Constitution”

K C Wheare

“strikes a good balance between flexibility and rigidity”

“this variety in the amending process is wise but rarely found”

Granville Austin

‘the amending process has proved itself one of the most ably conceived aspects of the Constitution. Although it appears complicated, it is merely diverse’.

Mock Drill of Above learning –

  1. Which of the following is not a fundamental right ?
    1. Right to speech
    2. Right to religion
    3. Right to profession
    4. Right to property
  2. Match the following column
Column IColumn  II
1 Minerva mill caseA 1967
2 Keshavnanda CaseB 1980
3 Shankari Parsad caseC 1973
4 Golak Nath caseD 1951
  1. 1-B, 2-C, 3-D, 4-A
  2. 1-C, 2-A, 3-D, 4-A
  3. 1-D, 2-C, 3-B, 4-A
  4. 1-B, 2-A, 3-D, 4-C
  1. In which case SC first time ruled that basic structure can-not be amended by the parliament ?
    1. Minerva Mill case
    2. Keshavnanda Bharti case
    3. Golak Nath case
    4. Wamon Rao case
  2. Any subject of the 7th schedule can be amended by the
    1. Simple majority
    2. Special majority
    3. Special majority and half of state legislature with special majority
    4. Special majority and half of state legislature with simple majority
  3. To change the federal structure of the constitution which majority is required in parliament
    1. Simple majority
    2. Special majority
    3. Special majority and half of state legislature consent within 6 month from the day bill passed by parliament
    1. Special majority and half of state legislature consent with simple majority
  4. In which of the following amendment bill special majority with state consent is required ?
    1. Admission of new state
    2. Fundamental rights
    3. Election of president and its manner
    4. Abolition of creation of legislative council in state
  5. Which of the following amendment scrap the judicial review structure of the constitution?
    1. 1st amendment
    2. 17th amendment
    3. 24th amendment
    4. 42th amendment
  6. “While we want this Constitution to be as solid and permanent as we can make it, there is no permanence in a Constitution. There should be a certain flexibility. If you make any Constitution rigid and permanent, you stop the nation’s growth, the growth of a living, vital, organic people” this statement is said by the whom in constituent assembly at the time of framing constitution ?
    1. Dr. B R Ambedkar
    2. Sardar Patel
    3. M N Roy
    4. Pt. Jawahar Lal Nehru

Answer –

  1. D
  2. A
  3. C
  4. C
  5. D
  6. C
  7. D
  8. D

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