Keshavananda Bharti Case

Keshavananda Bharati v. State of Kerala

AIR 1973 SC 1461: (1973) 4 SCC 225;

(1973) Supp SCR 1

Date of Decision: 24-4-1973

This case is the greatest decision in the history of Indian Constitution which determine the fabric of Indian Constitution. In this case for the first time in Indian Judiciary, thirteen judges bench was constituted to hear the case, on 24 April, 1973; a much divided judgment was passed by the majority of seven judges, including Chief Justice S. M. Sikri and was decided by a thin margin of 7:6. In this case Justice HR Khanna Also laid down the Principle of Basic Structure.

JUDGES: SM Sikri, CJ, and AN Grover, AN Ray, DG Palekar, HR Khanna, JM Shelat, KK Mathew, KS Hegde, MH Beg, P. Jagamohan Reddy, SN Diwedi, AK Mukherjee and YV Chandrachud, JJ.

FACTS

Keshavananda Bharti, chief of Edneer Mutt, a Hindu Mutt located in Edneer, Kerala. His fundamental rights inherited in Article26 were violated by the 24^th, 25^th, and 29^th constitutional amendment act and the Land Reform Act,1969 and 1971 of Kerala government and the lands of his Mutt was being acquired by the government and he did not get any relief from Kerala high court. Nanabhoy Palkhivala, convicted the Swami into filling his petition under Article26, concerning the right to manage religiously owned property without government interference. The validity of the constitution 24^th Amendment Act, 1971, was also challenged in this case. Parliament enacted the 24^th Amendment Act which amended Article 368 making it explicit that Parliament would have the constituent power under that article to amend by way of addition variation or repeal any provision of the constitution and that Article 13 would be inapplicable to such amendments. This was done to nullify the effect of the Supreme Court’s decision in Golak Nath case. So, the petitioners had challenged the validity of the Kerala Land Reforms Act, 1963. But during this pendency of the petition the Kerala Act was amended in 1971 and was placed in the Ninth Schedule by the 29^th Amendment Act. The petitioners were permitted to challenge the validity of 24^th, 25^th, and 29^th Amendments to the constitution also.

ISSUES

Whether Constitutional Amendment as per Article 368 applicable to Fundamental Rights also?

Whether 24^th Amendment Act 1971 is Valid?

Whether Sec 2(A), 2(B) & 3 of 25^th Amendment valid?

Whether 29^th Amendment Act 1971 is valid?

ARGUMENTS FOR PETITIONER’S SIDE

The petitioner in this case mainly contended that parliament’s power is limited and restricted in the matter of amending the constitution. This argument of restrictive competence with the parliament was based on the Doctrine of Basic Structure propounded by Justice Madholkar in Sajjan Singh Case. The petitioner through his counsel pleaded before the court of thirteen judge bench to protect his fundamental right to property violated by the enactment of 24^th and 25^th Constitutional Amendment. The petitioner also submitted that during colonial period it was the Indian Constitution which granted the citizens freedom from tyranny. The various features of this freedom will gradually wither away if not protected from the parliament recent course.

ARGUMENTS FROM RESPONDENT’S SIDE

The respondent i.e. the state contended the same argument which he has been contended since Shankari Prasad Case i.e. the power of parliament to amend the Constitution is Absolute, without any limit and unfettered. This argument of state based on the basic principle of Indian Legal System i.e. Supremacy of Parliament. Further, the state pleaded that I order to fulfill socioeconomic obligations which has been granted to citizens by the Union in Preamble for this purpose it is most important that there should not be any limitation upon the authorities of parliament. The essence of state’s argument was that if what Golakhnath and Petitioner is contending becomes the law then all the social and egalitarian obligations bestowed on the parliament by the highest law. The respondent submitted before the court that even democracy can be turn into a one party rule, if needed be, by the parliament.

JUDGMENT

The petitioner was contending that the amending power were void but not unlimited under Article 368. The Parliament cannot destroy the basic feature of the Constitution. The Union of India claimed that amending power was unlimited and sort of repel of the Constitution any change could be effected.

The majority opinion was that although no part of the Constitution including the fundamental rights, was beyond the amending power of the Parliament, the Basic Structure of the Constiitution could not be abrogated even by a constitutional amendment. The decision of the majority in Golak Nath Case that the then Article 368 of the Constitution merely prescribed the procedure for amendment of the Constitution and the power of amendment had to be trased to Entry 97 of List I, Schedule VII read with Article 245, 246 and 248 of the Constitution is not correct.

HELD

All the thirteen judges held that 24^th, 25^th and 29^th Amendment Acts were valid.

Ten judges held that Golak Nath Case was wrongly decided and that an amendment to the Constitution was not a law for the purpose of Article 13.

Seven judges held that the power of amendment was plenary and could be used to amend all the Articles of the Constitution (including Fundamental rights).

Seven judges (six judges dissenting on this point) that the “power to amend does not include the power to alter the Basic Structure of the Constitution so as to change its identity.”

Seven judges held (two judges dissenting on leaving this point open) that “there are no inherent or implied limitations on the power of amendment under Article 368.”

Chief Justice Sikri, writing for majority indicated the Basic Structure was:

1. Supremacy of the Constitution,
2. Republic and Democratic form og Government,
3. Secular Constitution,
4. System of Separation of power,
5. Federal character of the Constitution,

Justice Shelat and Grover added the three features to the Chief Justice’s list:

1. the mandate to build a welfare state contained in the Directive Principles of the State policy,
2. maintenance of the Unity and Integrity of India,
3. the Sovereignty of the country

Justices Hegde and Mukherjea instead provided in their opinion, a separate and shorter list:

1. the Sovereignty of India,
2. the Democratic Character of the Polity,
3. the Unity of the country,
4. the essential features of individual freedoms,
5. the mandate to build a welfare State.

Justice Reddy stated that the Basic feature of the Constitution were laid out by the Preamble and thus could be represented by:

1. a sovereign, democratic, republic,
2. the provision of social, economic and political Justice,
3. liberty of the right, expression, belief, faith and worship,
4. equality of status and opportunity.

Thus, the court by majority of 7:6 held that the Parliament had wide powers of amending the Constitution and it extends to all the Articles but Article 368 doesn’t enable Parliament to alter the Basic Structure or Framework of the Constitution. This case established the principle that the Basic Structure cannot be amended on the ground that a power to amend is not a power to destroy.

Critical Analysis

The decision in the case of Keshvananda Bharati was a thought provoking judgment. The thirteen judges bench after putting a lot of thought into it had come up with a unique decision the decision which has been contained in more than 700 pages as devised a solution applying which neither Parliament’s obligations are hindered and nor is there any possibility of violation of citizen’s fundamental rights. Keshvananda is the phenomenal and a classic example of judicial policy were due to conflict between Parliament and Judiciary was led to the failure of the Constitutional machinery. The conflict between the two was resolved when majority bench provided the Doctrine of Basic Structure. This thirteen judges bench corrected the decision which was given in the case of Shakari Prasad, Sajjan Singh, Golak Nath. After the application of this decision Indian Judiciary became a final arbiter to check the violation of Constitutional provisions.

Keshvananda Bharati Case reflects judicial creativity a very high order. The majority bench decision was to protect the fundamental features of the Constitution was based on sound a rational reasoning. The bench was fearful that if the parliament is given unrestricted amending power then a political party with 2/3 majority in Parliament, for a few years, could make any change in the Constitution even to the extent of repealing it to suit its own agenda. However the bench was also well aware of the poverty and social backwardness which prevailed in the nation. To eradicate this state of poverty and social backwardness the Parliament could need some sort of tool. Therefore, keeping both extreme contentions in its minds the court propounded Basic Structure Theory through which a honest Parliament can bring all the required changes needed and a the same time check a malicious and power greedy conglomerate of politicians.

Conclusion

The Supreme Court’s decision implied limitation on amending power of parliament was very bold and brave move. The constitution derive its strength from national consensus and has been enacted in the name of “People of India” cannot be amended by a mere two-third majority in the parliament when in reality two-third majority does not indicate the consensus of entire nation further it should also kept in mind that the entire population does not cast their respective votes in general elections in reality the procedure of amending a provision of the constitution requires the bill to be pass from both the houses and Rajya Sabha however does not represent the people of India that is it not a house of people therefore it is not entirely correct to say that an amendment by the houses of the parliament actually represent “People of India”.

Eminent Jurist and co counsel in Keshvananda Bharti case, Mr. Nanabhoy Palkhiwala and the seven judges at the majority bench were of the opinion that there judgment have saved Indian democracy for which our respected ancestors fought so hard. India got independence from colonial rule of Great Britain after over 150 years of struggle.

Power and rights of common people is the most important product of Democracy that independence has got us. If the decision of the bench had been otherwise, these rights and power for which our respected freedom fighters had fought for would have withered away. Therefore the 13 Judges bench in the Keshvananda Bharati case through their precious judgment had restored the faith of common people of the nation in Judiciary as well as Democracy.

Author: Anurag Gupta,
City Academy Law College, Tiwariganj,(University of Lucknow)/ Student