• April 25, 2023

Kesavananda Bharati Case’s Legacy after 50 Years

Tags: GS 2, Indian Constitution Significant Provisions Parliament & State Legislatures

In Context

• The landmark Kesavananda Bharati decision, in which the Supreme Court established the “basic structure” doctrine on the limits of Parliament’s authority to amend the Constitution, recently turned 50 years old.

Who was Kesavananda Bharati?

• Kesavananda Bharati, born in 1940, was the president of the Hindu monastery Edneer Mutt in Kasargod, Kerala.
• He contested the Constitution (29th Amendment) Act of 1972, which inserted the Kerala Land Reforms Act of 1963 and its amending Act into the 9th Schedule of the Constitution.
• The Ninth Annexes:
• The 9th Schedule was added to the Constitution by the First Amendment in 1951, along with Article 31-B, in order to provide a “protective umbrella” for land reforms statutes so that they cannot be challenged in court.
• He argued that this action violated his fundamental rights to religion (Article 25), religious freedom (Article 26), and property (Article 31).

Kesavananda Bharati Vs. State of Kerala (1973):

The case

• On April 24, 1973, a special bench of the Supreme Court of India, composed of 13 justices, decided a property dispute by a 7–6 majority.

Judgment

• While the court upheld the challenged land ceiling laws, it struck down a portion of the 25th Amendment (1972) that stated, “if any law is passed to give effect to the Directive Principles, it cannot be deemed null and void on the grounds that it deprives or restricts any of the rights contained in Articles 14, 19, or 31.”
• The Court articulated the so-called “Basic Structure of the Constitution,” which could not be repealed even by a constitutional amendment.

About the ‘Basic structure’:

About

• The Supreme Court first acknowledged the term “basic structure” in 1973 in the landmark case Kesavananda Bharati v. State of Kerala.

Meaning

• Indian courts define fundamental structure as inherent characteristics that are built on the basic foundation, i.e., the dignity and freedom of the individual, and are of the utmost importance and cannot be altered in any way.
•  The Supreme Court can invalidate any law or amendment that violates these principles on the grounds that they distort the Constitution’s fundamental structure.

Important features/Basic structure of the constitution

• Constitutional supremacy;
• Republican and Democratic forms of government;
• Constitution’s secular nature;
• The separation of powers among the legislative, executive, and judicial branches;
• The federal nature of the Constitution.
• Harmony and equilibrium between the Fundamental Rights and the DPSP
• Free and fair elections
• Parliament’s limited ability to amend the Constitution
• Indian Supreme Court’s Articles 32, 136, 142, and 147 powers
• High Court’s Articles 226 and 227 powers

Analysis of Basic structure doctrine :

About

• Throughout the years, the fundamental structure doctrine has been repeatedly criticized for diluting the principle of separation of powers, undermining the sovereignty of Parliament, and serving as a vague and subjective method of judicial review.
• An examination of the application of the doctrine over the past half-century reveals that, although the highest court has invoked “basic structure” infrequently, it has overwhelmingly invalidated amendments that have limited judicial powers.

Application of the doctrine in 50 years

• Since 1973, when the Kesavananda Bharati decision was rendered, the Constitution has been amended more than sixty times.
• In at least 16 cases during these five decades, the Supreme Court has compared constitutional amendments to the doctrine of fundamental structure.
• In nine of these sixteen cases, the Supreme Court upheld challenged constitutional amendments on the basis that they violated the fundamental structure doctrine.
• Six of these cases pertain to reservations, such as the quota for Other Backward Classes (OBC) and Economically Weaker Section (EWS), as well as promotions involving reservations.

NJAC

• Only once has the Supreme Court invalidated a constitutional amendment in its entirety: The Constitution (Ninety-ninth Amendment) Act of 2014.
• The Act established the National Judicial Appointments Commission (NJAC), the body that would have been responsible for the appointment and transfer of judges, superseding the current Collegium system.
• The NJAC would have been responsible for the appointment and transfer of judges.A five-judge Constitution Bench invalidated the amendment in 2015 on the grounds that it threatened “judicial independence,” which the court ruled was a fundamental feature of the Constitution.

Partially struck down

• The Supreme Court has “partially struck down” a constitutional amendment six times since 1973, including the Kesavananda decision itself.In each of these instances, the provision that was invalidated involved the denial of judicial review.
• Only one of these six decisions involves an amendment that was not made during the time of Indira Gandhi; Kihoto Hollohan, which dealt with the Tenth Schedule, is the exception.

Kihoto Hollohan vs Zachillhu And Others (1992)

• The Supreme Court upheld The Constitution (Fifty-second Amendment) Act, which added the Tenth Schedule or “anti-defection law” to the Constitution.

The only element of the amendment that was struck down was the provision stating that the Speaker’s decisions regarding disqualification cannot be reviewed by a court.

• In 2021, a three-judge bench of the court struck down a portion of The Constitution (Ninety-seventh Amendment) Act, 2011, but not on the basis of its fundamental structure.
• The modification altered the legal framework for cooperative societies

Way ahead

• Proponents of the basic structure doctrine view it as a safety valve against majoritarian authoritarianism. • Without it, it is possible that Indira Gandhi’s Emergency of 1975 would have had far more detrimental effects on the health of Indian democracy.
• Opponents, on the other hand, argue that the doctrine amounts to judicial overreach over the legislature, which is undemocratic.