Critical Analysis of Kesavananda Bharati V. State of Kerela – By SOHINI BISWAS

Kesavananda Bharati V. State of Kerala[​ i] is a landmark case in the judicial history of India.​ Mainly because it formulated the Basic Structure of the Indian Constitution and also paved a way for a struggle between parliament and judiciary.

In February 1970 Swami Keshavananda Bharti, senior plaintiff and head of the Edneer Mutt, Kerala, had received 100 acres of land in a donation. The Kerala State Government wanted the possession of the Mutt under the state land reforms act.

Nana Palkhiwala suggested Kesavananda Bharati to challenge this decision into Supreme Court by filing his petition under Article 25 and 26 of the Indian Constitution concerning the right to religiously owned property without government interference and Nana Palkhiwala also became the lawyer of Kesavananda Bharati in the case.

In this case, the Supreme court declared 31 C as unconstitutional and invalid because judicial review is a basic structure and therefore cannot be taken away. The Supreme court reversed the Judgement of I.C Golaknath v. State of Punjab​[​ ii] ​ where it was held that Parliament through​ Article 368 cannot amend fundamental rights.

In Shankari Prasad v. Union of India​ [​ iii], it was held that Article 13(2) did not affect​ amendments made under Article 368 because the word law in Article 13 means rules or regulations made in the exercise of ordinary legislative power and no amendment of the constitution made in exercise of constitutional power. This interpretation of Shankari Prasad’s case was followed by the majority in Sajjan Singh v. State of Rajasthan​ [​ iv] where it was held​ that the parliament can amend any part of the constitution including fundamental rights.

Relevant Provisions
Many amendments were brought by the parliament to override the controversial judgment standing in the way of parliament and to uphold their power to amend.

24th, 25th, and 29th amendment of the constitution – 24​th amendment was passed in the year 1971, it was amended​ to remove the difficulties which were created by the decision of the Supreme Court in the I.C​Golaknath case. By this amendment, parliament introduced provisions Article 13(4) and Article​ 368. This amendment gave power to parliament to amend any part of the constitution. 25​th amendment was passed in the year 1972 where Article 31(2) was amended, clause 2-B was​ inserted in Article 31 after clause 2-A and it inserted a new Article 31 c by the way of amendment. 29​th amendment was passed in the year 1972. This amendment was inserted in two​ Kerala Land Reform Acts, in the Ninth Schedule of the constitution.

Article 368 of the Indian constitution grants power to make amendments and empowers​ Parliament to amend the constitution by way of adding provisions according to the procedure laid down.

Basic structure Doctrine
There is no specific mention of the term “Basic Structure” in the Indian Constitution. The basic structure doctrine is an Indian principle that the constitution of India has certain basic features that cannot be altered or destroyed through an amendment by the parliament. The Doctrine is built upon the principle to preserve the nature of Indian democracy and protect their rights, liberty, freedom, and dignity of an individual. This doctrine helps to protect and preserve the spirit of the constitution document.

It was the Kesavananda Bharati case that brought this doctrine into the limelight and it was held that the ‘Basic Structure” of the constitution could not be abrogated even by a constitutional amendment.

Parliament cannot amend elements in the Basic Structure of the Indian Constitution.

The basic features of the Constitution: The supremacy of the constitution, Republican and​ democratic form of government, Secular character of the constitution, Federal character of the constitution, Separation of power between 3 pillars of the constitution, Unity, and Sovereignty of India and Individual freedom.

Over the period, the Supreme Court added many other features in the list of

basic features laid in the Kesavananda Bharati case – Rule of law, Judicial Review, Democracy which implies free and fair elections, etc.

The case had a constitutional bench of 13 Judges and the decision was given by a narrow majority of 7:6 (highest number of judges on a panel of the case).

In Kesavananda Bharati’s case, the Supreme court ruled that all provisions of the constitution, including fundamental rights, can be amended. However, the parliament cannot alter the basic structure of the constitution.

In the judgment, Article 368 of the constitution was held valid and parliament cannot amend the basic structure of the constitution under any circumstances. Judges held that the power of parliament is Wide but Not Unlimited. Parliament of India can amend anything even the fundamental rights (Supreme Court reversed the Golaknath Judgement) however Parliament cannot touch the Basic Structure of India.

-The judgement refused to consider the right to property as a fundamental right under basic structure
doctrine. it was later deleted in the 44th amendment

-Recognition of supremacy of the Constitution

-Judicial review cannot be stopped by any provision

– As in reaction of this judgment, Indira Gandhi elevated A.N Roy as CJI, and during the emergency, he set up a bench to review the Kesavananda Bharti case and it was bench was dissolved after 2 days

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