Keshvanand Bharti Case – Basic Structure Doctrine.

Himanshu Agarwal

Vivekanand Law College, Vastral, Ahmedabad, Gujarat

This case holds paramount weight in the history of the Indian constitution. This case is considered a pillar of the concept of “Basic Structure Doctrine”, which in a way limited the Power of Parliament to amend the Constitution. This case also established the supremacy of the Supreme Court and played a vital role in preserving Indian democracy.

This article talks about how Courts play a pivotal role in preserving the fundamental rights of citizens. This case altered the way the Constitution is governed and become a beacon for future cases. Moreover, the article talks about Article 368, the extent & limitations of Parliament in this article.

Keywords: Basic Structure Doctrine, Keshvanand Bharti, Article 368.

The background of the case

After independence, central government and state government enacted several rules and regulations for the upliftment of the society. Foremost, the aims of the governments were equal distribution of resources & weather, right to livelihood etc. Some of the reforms which witnessed the maximum backlash were land reformation and tenancy structure. Some of the critical cases which need to be observed are:

1. Sankari Prasad vs The Union of India (1951)

Case details: The validity of the 1st Amendment was challenged wherein Articles 31A & 31B were inserted in the 9th schedule of the constitution of India.

Judgement: The court observed that there is a clear distinction between ordinary law and constitutional law pursuant to the Indian Constitution, hence, amending the powers of Article 368 includes an amendment in fundamental rights.

2. Sajjan Singh vs State of Rajasthan (1965)

Judgement: The efficacy of the 17th Amendment Act, of 1964, which added 44 additional statutes pertaining to the land reforms in the Ninth Schedule of the Constitution was challenged. The court upheld that Parliament possess unrestrictedauthority to amend any part of the constitution which will affect the Fundamental rights or part thereof.

3. I.C Golaknath vs State of Punjab (1967)

Judgement: The Supreme Court overruled its previous ruling in the aforesaid case stating that Parliament cannot amend the Constitution which will diminish the fundamental rights of citizens. Parliament can use Article 368 to amend procedural matters and regulations without disturbing citizens’ fundamental rights.

Parliament enacted the 24th, 25th and 29th Amendment to bypass the aforesaid judgement. This was challenged in the Keshvanand Bharti case.

About Keshvanand Bharti’s case

The Kerala government passed a Land Reform Amendment Act in 1969. Pursuant to this act government has the right to acquire some land belonging to mutt land.

In February 1970, Swami Keshvanand Bharti, head of Edneer Mutt, challenged the Kerala Government for imposing restrictions to hold the entire land under Edneer Mutt’s name. The petition was filed under Article 32 for the violation of the following articles:

1. Article 14: Principle of equality.

2. Article 19: Freedom of speech & freedom to acquire any property in India. Individual freedom of acquisition of property and speaking freely on any topic in India.

3. Article 21: Safeguarding life and Liberty.

4. Article 25: Individuals can adopt and propagate any religion of their choice.

5. Article 31: Government can authorise compulsory acquisition of property

When the petition was still under review by the Court, the Kerala government introduced additional Land Reforms Amendment Act, 1971.

Legal Issue

1. Enforceability of 24th Constitutional Amendment of Act 1971. Pursuant to the amendment Parliament is empowered to amend fundamental rights or part thereof.

2. Enforceability of 25th Constitutional Amendment of Act 1972. Following thisamendment, Parliament can curtail the Right of property. Property acquisition can be done by the government for the public or government use and compensation for the acquisition will be at the discretion of the Parliament.

3. Enforceability of 29th Constitutional Amendment of Act 1972, wherein the Parliament inserted Kerala Land Reform Amendment of Act 1969 and Kerala Land Reform Amendment Act of 1971 in the 9th Schedule of the Constitution. Hence, these amendments were outside the purview of Judiciary scrutiny.

4. The power of Parliament to modify Fundamental rights should be limited.

5. Should the judgement of the Golknath case consider a correct interpretation of the law?

The petitioner further added on his plea that Article 368 with its unlimited power is against the spirit of Democracy in India.

An argument by Respondent

1. The state argued that post-Independence, the Primary duty of Parliament is to bring equality among the citizen, i.e. equal status, equal resources and wealth distribution, and upliftment of weaker sections of the society.

2. The state further argued that for the aforesaid development, Parliament must have unlimited power of the amendment. The powers of Parliament cannot be constrained to some particular Articles of the Constitution.

Judgement

The most extensive bench of the Supreme Court was constituted for the case. The case hearing was spanned for 69 days, the deliberations commenced on 31st October of 1972 and lasted till 23rd March of 1973. The judgment of the case is spread over 700 pages. Various aspects of the individual’s Fundamental rights were observed before imparting the decision.In a split verdict of 7-6, the court ruled that although Parliament must have unlimited powers for the upliftment of society, however, it is necessary that these powers shall not destroy or emasculate the position of the Individual’s Fundamental right.

1. The Supreme Court re-examined the case of I.C. Golak Nath vs State of Punjab and reversed its decision that the amendment in the Fundamental Rights is within the ambit of Parliament.

2. Pursuant to the 24th Amendment Act, of 1971, parliament possess unrestricted powers to amend any part of the constitution, was held valid.

3. Pursuant to Article 368, Parliament possesses unrestricted powers to make amendments, however, they don’t have the power to modify the Basic or Mandatory Structure of the Constitution and this concept is known as the Basic Structure Doctrine of the Constitution.

The Court gave a few examples to explain the concept of the Basic Structure Doctrine. The nine signatories to the statement were Chief Justice S M Sikri, Justice K. S. Hegde, Justice J. M. Shelat, Justice P. Jaganmohan Reddy, Justice H R Khanna, Justice A. N. Grover, Justice D. G. Palekar, Justice A. K. Mukherjee and Justice Y.V. Chandrachud.

Four judges did not sign the judgment Justice K. K. Mathew, Justice A. N. Ray, Justice M. H. Beg and Justice S. N. Dwivedi

Major Judgement Points

This landmark case gave the introduction and definition of the ‘Basic Structure of Doctrine’ of the Constitution of India. Each judge laid out their thought to avoid any ambiguity.

S.M. Sikri, Chief Justice explained the concept of Basic Structure included:

1. The supremacy of the Constitution.

2. Secular nature of the Constitution.

3. The Government should be republican and democratic in nature.

4. The legislature, executive and judiciary must adhere to the doctrine of separation of powers.

5. The Constitution has a federal character.

Pursuant to the Chief Justice, fundamental rights granted by Part III of the Constitution of India cannot be repealed, though a reasonable limitation of those rights could be affected in the public interest.

Shelat and Grover, JJ added two more concepts to the aforesaid list:

1. Unity and integrity of the nation

2. Pursuant to Directive Principles of State Policy, government should build a welfare state.

The word ‘amendment’ found in Article 368 must therefore be interpreted in such a way as to preserve the power of Parliament to amend the Constitution, but not so as to result in harm or disrupting the fundamental structure of the Constitution.

Hegde and Mukherjea, JJ identified another shorter and a simpler list

1. The democratic character of the political system

2. India’s national sovereignty.

3. The development of state

4. Individual freedom holds the paramount position of the citizens.

The aspiration to achieve a welfare State is the ultimate objective of every Government, however, that does not mean that in order to achieve a welfare State, human freedoms have to suffer total destruction. Comprehending these logics, the learned Judges nullified Article 31C even in its original form.

Jaganmohan Reddy, J further added their points to the list

1. Equal status and an opportunity

2. Freedom of expression.

3. Justice to all the Citizens.

Held that the ambit of the power of the amendment could not be expanded through modifications to the power of amendment itself.

Basic features added by the Supreme Court

There is no definition of the Basic Doctrine Concept, however, the Court has identified some basic points for this concept. These concepts should be observed while imparting decisions in any of the cases. In Indira Gandhi vs Raj Narayan and moreover in the Minerva Mills Case, it was concluded that the following outlined points should be observed while imparting the decision. Key features of the Constitution termed as fundamental are listed below:

1. Rule of law

2. The objectives specified in the Preamble to the Constitution.

3. Judicial Review.

4. Articles 32 and 226.

5. The individuals should have freedom and dignity.

6. The individuals should receive equal treatment.

7. The essence of other Fundamental Rights in Part III

8. The balance between Fundamental Rights and Directive Principles.

9. Government should be formed by election or democratic administration.

10. The principle of free and fair elections

11. The amending power conferred by Article 368, should have limitation.

12. Independence of Judiciary

13. Effective access to justice

14. Powers of the Supreme Court under articles 32, 136, 141 and 142.

15. Legislation seeking to nullify the awards made in the exercise of the judicial power of the State’s judicial authority by Arbitration Tribunals established under a statute.

The conclusion

The concept of the ‘Basic Structure of Doctrine’ laid the foundation and assisted in imparting fair decisions in the coming years. This case ensured that the Parliament enjoys the unrestricted authority to modify the Constitution of India for the public interest. However, they must ensure that the amendment does not emasculate the position of the Fundamental Rights of citizens.

In the case of Indira Nehru Gandhi v. Raj Narain in the year 1980, the logic of basic structure doctrine was utilized to explain the petitioner’s position. It was held that the 39th Amendment, which was passed during the Emergency ultra-vires the powers of Parliament. The concept of the Basic Structure Doctrine was used to rescind the 39th Amendment.

The logic of Basic Structure Doctrine was recognized by the Supreme Court of Bangladesh in 1989, when delivering a decision in the matter of Anwar Hossain Chowdhary v. Bangladesh(41 DLR 1989 App. Div. 165, 1989 BLD (Spl.) 1). The reasoning of Keshvanand Bharti’s case was observed in the Anwar Hossain Chowdhary case.

The Supreme Court resolute stand in Keshvanand Bharti’s case, in a way protected the rights of the religious institute and setting a precedent for future cases wherein abuse of power is observed. The Indian economy is a growing economy, hence learning of the cases are very much relevant. If the government is reluctant with their act or there is ultra-vires of power then Courts are there to hear the voice or opinion of the citizens. In final conclusion, this case ensured the supremacy of the court and ensured justice would be served to all the citizens of the nation.

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