Context
- The Vice-President while addressing the 83rd Conference of Presiding Officers said that the Kesavananda Bharati case judgment of 1973 set a bad precedent by seeking to establish judicial supremacy.
- The Vice-President also remarked that judicial review, as was done in the case of the NJAC law, diluted parliamentary sovereignty and labeled it as “one-upmanship”.
- In this context, this edition of the Burning Issue will talk about the famous Kesavananda Bharati Case and its relevance.
About the Kesavananda Bharti Case
Background of the case
- In the early 1970s, the government of then PM Indira Gandhi had enacted major amendments to the Constitution (the 24th, 25th, 26th and 29th) to get over the judgments of the Supreme Court in RC Cooper (1970), Madhavrao Scindia (1970) and the earlier mentioned Golaknath.
- All four amendments, as well as the Golaknath judgment, came under challenge in the Kesavananda Bharati case.
- Here, relief was sought by the religious figure Swami Kesavananda Bharati against the Kerala government vis-à-vis two state land reform laws.
The Judgment in Kesavananda Bharati Case
- The Constitutional Bench, whose members shared serious ideological differences, ruled by a 7-6 verdict that Parliament should be restrained from altering the ‘basic structure’ of the Constitution.
- The court held that under Article 368, which provides Parliament with amending powers, something must remain of the original Constitution that the new amendment would change.
- The court did not define the ‘basic structure’, and only listed a few principles — federalism, secularism, democracy — as being its part. Since then, the court has been adding new features to this concept.
- Critics of the doctrine have called it undemocratic since unelected judges can strike down a constitutional amendment. At the same time, its proponents have hailed the concept as a safety valve against majoritarianism and authoritarianism.
About the Basic Structure Doctrine
- Definition: The basic structure doctrine is one of the fundamental judicial principles connected with the Indian Constitution. The doctrine of the basic structure holds that there is a basic structure to the Indian Constitution, and the Parliament of India cannot amend the basic features.
- A Judicial innovation: The doctrine of basic structure is nothing but a judicial innovation to ensure that the power of amendment is not misused by Parliament. The idea is that the basic features of the Constitution of India should not be altered to an extent that the identity of the Constitution is lost in the process
- Not mentioned in the constitution: The doctrine of basic structure is nowhere expressed or mentioned in the constitution of India. Justice Khanna provided that the power in Article 368 of ‘amend’ is not of nature of arbitrary but limited.
- Verbatim Article 368: “Power of the parliament to amend the constitution”, here the word ‘amend’ gives birth to the doctrine of basic structure. The word amend itself expresses that the parliament can amend the constitution but cannot change its ideals and philosophy or briefly say- the structure.
Evolution of the doctrine
The development history of the doctrine of basic structure can be divided into four stages –
First stage: Sankari Prasad judgment and ending with I.C. Golaknath judgment
- Initially, the judiciary was of the view that the amendment power of the parliament is unrestrictable because it can amend any part of the constitution even also the article-368 which provides the power to amend to the parliament. But in 1967, Golak Nath V State of Punjab, the Supreme Court adopted a new vision to see the powers of parliament that it cannot amend the part III of the constitution i.e Fundamental rights and thus awarded fundamental rights a “Transcendental Position”
The Second stage: Starting with Post Golaknath Scenario and ending with Keshavananda case Judgment
- In 1973, Keshavanada Bharti V State of Kerala gave birth to the landmark judgment which pronounced that the parliaments cannot alter or disturb the basic structure of the constitution. It was held that the parliament has unfettered power to amend the constitution but it cannot disturb or emasculate the basic structure or fundamental features of the constitution as it is only the power of amendment and not of the re-writing constitution.
The Third stage: Starting with Post Keshavananda’s case and ending with Indira Gandhi’s case
- Although the doctrine of basic structure was given in Kesavanand case, it got widespread acceptance and legitimacy due to subsequent cases and judgments. The main evolution of this doctrine started during the emergency period imposed by then-powerful PM Indira Gandhi. 39th amendment was passed by the government in order to suppress her prosecution which also extracted the elections of the Prime Minister from the purview of judicial review. However, in the case of Indira Nehru Gandhi v. Raj Narain, the 39th amendment act was quashed with the help of the doctrine of basic structure.
The fourth stage: Judgments like Minerva Mill’s case and Vaman Rao’s case
- In the Minerva Mills case, the Supreme Court provided key clarifications on the interpretation of the basic structure doctrine. Under the limited power of parliament to amend the constitution, two important factors were added, to keep harmony and balance between the rights and directive principles and Judicial review.
Significance of the Judgment and the doctrine
- Strengthen judicial review: The doctrine forms the basis of the power of the Indian judiciary to review and override amendments to the Constitution of India enacted by the Parliament.
- Clarification about Article 368: Article 368 postulates only a ‘procedure’ for amendment of the Constitution. The same could not be treated as a ‘power’ vested in the Parliament to amend the Constitution to alter the ‘core’ of the Constitution, which has also been described as the ‘basic structure’ of the Constitution.
- Not antithetical to legislative authority: Justice Shastri said Judicial Review was undertaken by the courts “not out of any desire to tilt at legislative authority in a crusader’s spirit, but in the discharge of a duty laid down upon them by the Constitution”.
- A system of checks and balances: The Kesavananda Bharati verdict (1973) made it clear that judicial review is not a means to usurp parliamentary sovereignty. It is a “system of checks and balances” to ensure constitutional functionaries do not exceed their limits.
Criticisms
- The mandate of the people through Parliament is disregarded: in a democratic society, “the basic” of any “basic structure” has to be the supremacy of the mandate of the people. The primacy and sovereignty of Parliament and legislature are inviolable. He said the power of Parliament to amend the Constitution and deal with legislation should not be subject to any other authority.
- Curb on Legislature: The landmark Kesavananda Bharati judgment of 1973 is said to limit the Parliament’s power under Article 368 to amend the Constitution.
How judiciary responded to VP’s criticism?
- The Supreme Court commented that the Vice-President’s public criticism of the National Judicial Appointments Commission (NJAC) judgment may be seen as comments by a high constitutional authority against “the law of the land” under Article 141.
- That is, as long as the NJAC judgment which upholds the collegium system of judicial appointments, exists, the court is bound to comply with the verdict.
- The Parliament is free to bring a new law on judicial appointments, possibly through a constitutional amendment, but that too would be subject to judicial review.
Conclusion
- The doctrine of basic structure laid in the Kesavananda Bharati case has been construed as the idea to preserve the most fundamental ideals of the Constitution while acting as a check on the powers of the government to make laws that may distort or remove these basic principles.
- Both the branches of the state, The Legislature and the Judiciary must understand that it is not the parliamentary supremacy or judicial review which is supreme, but the Constitution of India which is the supreme and highest law of the land. Thus, the Constitution of India must be upheld and respected by all the organs of the state.
