Kesavananda Bharti Case: A Broad Analysis
Fundamental Rights are the most important of any democracy, in order to protect the interest of citizens and control the reign of Government and its powers. Framers of constitution, keeping this in mind, framed the structure of division of powers among 3 organs viz. legislation, executive and judiciary, whereby each was to main tian a system of checks and balance over each other.
Table of Contents
- Supremacy of Parliament?
- Amendment in Article 368 – Challenge of Supreme Court Powers
- Shankari Prasad v. Union of India
- Sajjan Singh v. State of Rajasthan
- C. Golaknath v. State of Punjab
- Rustom Cavasjee Cooper v. Union of India
- H. Maharajadhiraja Madhav Rao v. Union of India
- Passing of 24th, 25th and 29th Amendment
- Introduction of Basic Structure Doctrine
- Challenging the Article 14, 19, 25, 26 and 31 of the Constitutions
- Introduction of New Article 31C
- The Decision
- Conclusion
Supremacy of Parliament?
At a time, when the parliament abridged the right to property and made it a legal right, it looked like the parliament is showing its supremacy over the other organs. Parliament was superseding the other organs by taking away fundamental rights, as and when it deems fit, imposing emergency when it suspected it to be correct.
Amendment in Article 368 – Challenge of Supreme Court Powers
With parliament power deeming to be uncontrollable, the first case came before Supreme Court challenging the powers of parliament to amend the constitution under Article 368 of the constitution in the case titled as Shankari Prasad v. Union of India, wherein it was held that constitutional amendments will be held valid even when they take away or abridges fundamental rights. Thus, Supreme Court upheld the validity of Article 368, thereby granting powers to parliament to amend the constitution.
Then came before Supreme Court another case titled as Sajjan Singh v. State of Rajasthan, which challenged the constitutional validity of 17th amendment. Supreme Court reaffirmed the view taken by it in the Shankari Prasad’s case and held that constitutional amendments can take away fundamental rights.
Thereafter, power of parliament was again challenged in I.C. Golaknath v. State of Punjab. 11 judges bench in this case gave a ruling by a majority of 6:5, holding that parliament had no power to amend the fundamental rights. Supreme Court further held that the power to amend constitution come from provisions like 245, 246 and 248 and not from Article 368(which only specifies the procedure). Thus declaring legislative power and amending powers same. Hence, in this way under Article 13, there are limitations on the legislative powers and these are applicable to the amendments also which introduce changes in the law.
Supreme Court gave its decision on the basis that “if the courts were to hold that the Parliament had power to take away fundamental rights, a time might come when these rights are completely eroded”.
Thereafter, two case came before Supreme Court titled as Rustom Cavasjee Cooper v. Union of India and H.H. Maharajadhiraja Madhav Rao v. Union of India, wherein Supreme Court reaffirmed the view taken by itself in Golaknath’s case and held that “constitution provides for the payment of fair compensation that is equivalent to the value of the property acquired by the government and SC also held that any law which seeks to acquire property for public purposes should satisfy the requirement of Article 19(1)(f).”
Passing of 24th , 25th and 29th Amendment
The then Indra Gandhi’s government aggrieved by the progressive rulings by Supreme Court, limiting its powers to large extent, parliament passed three constitutional amendments viz. 24th, 25th and 29th amendments, thereby trying to showcase its superiority over judiciary.
Then came a case before the Supreme Court, whereby the constitutionality of powers of parliament viz. 24th, 25th and 29th amendments were challenged.
Introduction of Basic Structure Doctrine
The landmark case of His Holiness Kesavananda Bharti v. State of Kerala, proved to be the protector of the constitution and individual’s fundamental rights, whereby Supreme Court established the basic structure doctrine and held that although there is no implied limitation to the powers of the parliament to amend the constitution, however, the parliament cannot amend the basic structure of the constitution. The genesis of this case lies in Article 368 of the Constitution, which gives powers to the parliament to amend the constitution.
Challenging the Article 14, 19, 25, 26 and 31 of the Constitutions
The facts of the case are that petitioner Kesavananda Bharti challenged the constitutional validity of Kerala Land Reforms Act, 1963 under Article 32 of the Indian Constitution, on the ground that the Act could strip him of his property, after Right to Property was no longer the fundamental right. The prayer before the court was to declare the Act as ultra vires and unconstitutional of Articles 14, 19(1)(f), 25, 26 and 31 of the constitution.
However, during the pendency of the proceedings, parliament passed 24th, 25th and 29th amendments, because of which petitioner had to amend his petition and thereby, not only Kerala Land Reform Act was challenged but constitutional validity of these amendments were also challenged.
Through the 24th Amendment Act, Parliament amended Article 368, whereby Parliament in exercise of its powers could amend or repeal any provision of the constitution in accordance with the procedure laid down under Article 368.
Under the 25th Amendment Act, Article 31(2) and (2A) were amendment, whereby the word “amount” was substituted with the word “compensation” and applicability of Article 19(1) to Article 31(2) was declared null and void. It was further clarified through this amendment that no law can be challenged in any court of law, on the ground that all or any part of the compensation amount is to be given otherwise than in cash.
Introduction of New Article 31C
This amendment act furthermore, introduced a new Article viz. Article 31C, which talks about the policy of state towards securing the directive principles of state policy and states that no law can be questioned on the ground that it took away or abridged citizens fundamental rights under Articles 14, 19 and 31 of the Indian Constitution.
Under the 29th Amendment Act, Kerala Land Reforms were brought under ninth schedule, thereby making them out of the scope of judicial review and provided it with immunity from challenge on grounds of violation of fundamental right.
The major issue involved in this case was whether Parliament can amend any law and can take away or abridge any fundamental right?
The Decision
With the largest bench ever constituted in Supreme Court of 13 judges, Supreme Court through majority of 7:6, ruled that parliament have the powers to amend the constitution, however, it cannot amend the basic structure of the constitution.
By its order, the first part of Article 31C, which states that “Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing [all or any of the principles laid down in Part IV] shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19”, was held to be valid.
However, the second part of the article which states that “and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy” was declared invalid and ultra vires of the constitution.
Thus, the declaration clause of Article 31C was struck down on the ground that it was destructive of basic structure of the constitution viz. judicial review.
However, ultimately Supreme Court upheld the Kerala Land Reforms Act, Constitutional Amendment (24th) Act, Constitutional Amendment (25th) Act and Constitutional Amendment (29th) Act. The only provision which was struck down by the Supreme Court was second part of Article 31C, which destroys the scope of judicial review.
CONCLUSION
The then chief justice Sikri, who were on the majority view, held that there were certain inherent limitations on the Parliament’s powers to amend the constitution. The basis to determine whether parliament had power to amend the constitution was underlining principles of the constitution viz. the basic structure of the Indian Constitution.
Whereas Justice Shelat and Justice Grover, who were also on the majority opinion, focused on individual’s dignity though adhering to unity and integrity of the nation, which establish the basic elements of the constitution.
While Justice Hedge and Justice Mukherjee held that parliament’s power to amend, though wide, did not include the power to destroy or emasculate basic elements of the Constitution, which are determinable from the Preamble. They identified two basic objectives of the Preamble: to set up a sovereign democratic republic, and to secure the citizens of India the rights mentioned in the Constitution.
While five of the majority judges held the Article 31C to be invalid in its entirety, Justice Reddy separated Article 31C into 2 parts and held then to be valid. It was only Justice Khanna, who held the first part of Article 31C to be valid and the second part to be invalid.
Thus, Supreme Court even after Kesavananda Bharti’s judgment, have from time and again expanded the scope of judicial review, though reiterating the fact that parliament does not have power to amend the basic structure of the constitution.