Understanding Kesavanda Bharti

In the initial days of our Republic, the Supreme Court was of the view that any part of the Constitution can be amended by the Parliament by using Article 368. By this logic, things can go really awry.

So, imagine this.

In one Parliament session, the legislators bring hundreds of Constitution Amendment bills each attempting to amend an Article.

Won’t this essentially result in a new constitution? Should Parliament be allowed to amend whatever portion of the Constitution it wants to change? When does the amended constitution stops being our constitution?

This is where Kesavananda Bharati Case comes into the picture. I have divided the answer into three phases to bring out how the case came about. It is important to look at the case in its historical context.


Phase I : Nothing is Sacred

Just as I mentioned before,  the Supreme Court was of the view that the Legislature can change any part of the Constitution including the Fundamental Rights. Let’s look at a case which brings out the tussle between the Parliament & Judiciary quite clearly.

Just after Independence, one of the primary concerns of the government were land reforms. But a few Court decisions made it practically impossible for the government to carry out land reforms as the acquisition of Zamindari land was violative of the Right to Property. Frustrated that the Supreme Court doesn’t see the government’s obligations under the Directive Principles of State Policy as well as for general interest,  the government felt somewhat like this:

You know what! If our laws violate the constitution, we are just going to effing change the constitution.

So, the Legislature passed the First Amendment Act that let it carry out the land reforms.

Then, A few people thought:

“Are Fundamental Rights of any use if they can be so easily taken away through a Constitutional Amendment? Let’s go to the Supreme Court.”

 This case is called “Shankari Prasad v. Union of India”.

The ball was now in the Supreme Court. (Eh, Pun!) It said that Parliament has all the rights to do what it did.

The law in Article 13(2) does not include the Constitutional Amendment Acts. “Nothing is Sacred. Go home & Chill.”

Phase II: Fundamental Rights are sacred

Until 1967, Supreme Court was very clear in its opinion that Amendment Acts were not ordinary laws & they cannot be struck down by the application of Article 13(2) i.e. they can not be struck down for infringing the fundamental rights.

  • In 1967, in Golak Nath v. the State of Punjab, SC changed its stance. It ruled that the Parliament had no right to take away people’s Fundamental Rights. They are fundamental for a purpose.
  • Amendments are also laws within Article 13(2). So, a Constitutional Amendment too should be reviews if it violated fundamental rights.

This made Fundamental Rights sacred.

Now, The government was upset with Judiciary. And the government was like:

“Oh, Judiciary! How can you do this do me? It is our joint responsibility to look after the development of our country. Now, you are just being an A-hole by limiting my amendment powers. You are a stumbling block to the progress of this nation.”

Phase III: Nothing is Sacred but……

Until now, we have seen how the Supreme Court and Parliament were trying to one-up each other— Parliament by passing new Constitutional Amendment & Courts by its Judgements limiting the amending powers. To reverse the judgement that limited the amending power, Parliament came up with the 24th Amendment. This curtailed the power of Judicial review.

The Supreme Court said: 

“This is enough. Enough of your playing with the book. Let me put some ground rules now.”

This is our case of the century: The Kesavanda Bharti case.

The Supreme Court declared that the Parliament can amend the Fundamental Rights. Fundamental Rights were are not exempted from Article 368 which gives the power to amend the Constitution. But it realized how the Parliament cannot be given a free hand to amend the constitution left, right & center— the way it had been doing so far.

The Basic Structure Doctrine

The Supreme Court said that there are some basic principles that any constitutional amendment should be consistent with. It accepted that there are some core principles that can’t be taken away. Taking them away would essentially mean destroying the constitution. The court hasn’t exhaustively put down what the Basic Structure contains but it has given us an idea of what it is. Some components of the Basic Structure as put down by Supreme Court are:

  1. The Supremacy of the Constitution
  2. The Sovereignty of India
  3. The integrity of India
  4. The Republican form of the government
  5. ……

This was undoubtedly the most important Supreme Court case in the history of Independent India. Now, any constitutional amendment is looked at by the SC if it violates the Basic Structure. The SC has used that power too

For Example, by 99th Constitutional Amendment bill, National Judicial Appointment Commission or NJAC was formed to create a new way to select judges to the higher judiciary. The Supreme Court found that this violated the basic structure of the Constitution & the Act was Struck down as it destroyed the balance between the three arms of government.

Yay, that’s it. That’s all of it.

Kadyalwar Sunil Abhinav

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