26th September 2021

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Kesavananda Bharati passed away

Kesavananda Bharathi, whose legal struggle led to the landmark ruling outlining basic rights under the Constitution, passed away this morning. The head of Edaneer Math in Kasargod, Kerala was 79 years old.

  • In 1973, Kesavananda filed a lawsuit against attempts by the Kerala government to impose restrictions on the ownership of the stray dog.
  • By a narrow majority of 7 to 6, the panel of 13 judges ruled that while Parliament had “extensive” powers, it could not change the basic structure of the Constitution. Since then, the doctrine of basic structure has been regarded as a principle of Indian constitutional law.
  • Since then, the doctrine of the “basic structure” has been interpreted to include the supremacy of the Constitution, the rule of law, the independence of the judiciary, the doctrine of the separation of powers, federalism, secularism, the democratic republic, sovereignty, the parliamentary system of government, the principle of free and fair elections, the welfare state, etc. Critics of the doctrine have called it undemocratic, because unelected judges can overrule a constitutional amendment.
  • At the same time, his supporters hailed the concept as a safety valve against majoritarianism and authoritarianism.
  • The case ranks number one in terms of the longest hearing ever. He was heard by the largest constitutional chamber of 13 judges for 68 days.
  • The hearing in the case began on October 31, 1972 and ended on March 23, 1973. In 2018, Kesavananda Bharati received the sentence from Judge VR Krishna Iyer.
  • Kesavananda Bharati, the head of the Edaneer Mutt in Kasargod who died Sunday morning, September 6, will be forever remembered for the legal challenge he launched against the government of Kerala, considered by most jurists to be the greatest constitutional case of Indian judicial history.
  • By a majority decision of 7-6 rendered in “His Holiness Kesavananda Bharati Sripadagalvaru and Ors. V. In the state of Kerala and Anr ‘, a Supreme Court of 13 judges ruled on April 24, 1973 that the “basic structure” of the Constitution is inviolable and cannot be amended by Parliament.
  • Since then, the basic structure doctrine has been regarded as a fundamental principle of Indian constitutional law.

The judges in the Kesavananda Bharati case

The judges of the Constitution bench were divided in two due to serious ideological differences. The majority opinion was delivered by the Chief Justice of the Supreme Court of India, S M Sikri, and Justices K S Hegde, A K Mukherjea, J M Shelat, A N Grover, P Jaganmohan Reddy and H R Khanna.

What the trial said

  • The Court ruled that under Article 368 of the Constitution, which gives Parliament amending powers, something must remain of the original Constitution that the new amendment would not change.
  • But although the decision established the basic structure doctrine and ruled that Parliament did not have the power to change it, the court did not define the basic structure itself.
  • It only listed a few principles, including federalism, secularism and democracy. The court has since added new features to this concept.
  • Today, the “basic structure” is widely interpreted as including the supremacy of the Constitution, the rule of law, the independence of the judiciary, the doctrine of the separation of powers, federalism, secularism, the sovereign democratic republic, the parliamentary system of government, the principle of freedom and fair elections, the welfare state, etc.

The context of the case

  • Almost immediately after the adoption of the Constitution, discussions began on the extent of Parliament’s power to amend its main provisions.
  • In the early years of independence, the Supreme Court gave Parliament absolute power to amend the Constitution, as evidenced by the verdicts of Shankari Prasad (1951) and Sajjan Singh (1965).
  • This is believed to be due to the fact that in those early years the Supreme Court had relied on the wisdom of then political leaders, when prominent figures of the Indian freedom movement were members of parliament.
  • In the following years, however, governments amended the Constitution at will to accommodate partisan political interests.
  • The Supreme Court in Golaknath (1967) held that the amending power of Parliament could not affect fundamental rights and that this power belonged only to a Constituent Assembly.
  • In the early 1970s, the government of then-Prime Minister Indira Gandhi enacted major constitutional amendments (24, 25, 26 and 29) to circumvent Supreme Court rulings in RC Cooper (1970), Madhavrao Scindia (1970) and Golaknath (1967).
  • In RC Cooper, the court revoked Indira’s bank nationalization policy, and in Madhavrao Scindia, it revoked the elimination of the private portfolios of the rulers of the old princely states.
  • The four amendments – 24th (fundamental rights, 1971), 25th (property rights, 1972), 26th (private pockets, 1971), 29th (land reform laws, 1972) – as well as the “IC Golaknath & Ors vs State of Punjab and Anr” (1967), was challenged in Kesavananda Bharati, in which the petitioner sought redress against the Kerala government for two land reform laws.
  • Since Golaknath was decided by the 11 judge bench, a larger bench was needed to verify its accuracy, so 13 judges formed the Kesavananda bench.
  • Nani Palkhivala, Fali Nariman and Soli Sorabjee have filed a complaint against the government.

The consequences of the case

  • Indira’s government defended itself from the Kesavananda verdict. The Chief Justice of the Indian Supreme Court, S M Sikri, retired the day after the verdict and was replaced on April 26, 1973 by Justice A N Ray, who was one of six dissenting justices. Judge Ray became the fourteenth CJI to replace Justices Shelat, Grover and Hegde, who sided with the majority in the case.
  • Attorney General Niren De proposed to the Supreme Court without even filing a petition for review, and CJI Ray, as master of the roster, assembled a bench of 13 justices to review the verdict.
  • However, on November 12, 1975, the bank was dissolved after CJI Ray gave in to immense social pressure.
  • Since then, the basic structure doctrine has been applied to a number of important Supreme Court cases, notably SR Bommai (1994), when the Supreme Court upheld the indictment of the President of the BJP governments following the demolition of the Babri Masjid , citing a threat of secularism from these governments.
  • Critics of the doctrine have called it undemocratic, because unelected judges can invalidate a constitutional amendment. But, in general, it has been hailed as a brake against majoritarianism and authoritarianism.
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