Kesavananda Bharti Case- Basic Structure Doctrine
INTRODUCTION
Article 13 i.e. (Doctrine of Eclipse) declares that all laws that are inconsistent with or in derogation of any of the fundamental rights shall be void. Whether our judiciary system has a power to amend fundamental rights given under part III of the constitution of India? Whether the amendment of fundamental rights is covered by the proviso to Article 368? Whether Amendment is a law under the meaning of Article 13(2)? If yes, then what are the provisions regarding this and what problems did the Indian Judiciary face to bring this law into force. And how Kesavananda Bharti case gave a new perspective to Indian Judiciary.
HISTORICAL BACKGROUND
In the case of Shankari Prasad V. Union of India (1951). The First Constitution Amendment Act, 1951 which curtailed the Article 31 i.e. right to property, was challenged. The Supreme Court held that the Parliament has no power to amend Part III of the constitution as the fundamental rights are transcendental and immutable but in the case of Shankari Prasad, SC held that the parliament’s amending power under Article 368 also includes the power to amend the fundamental rights guaranteed in Part III of the Constitution. Further, it said that the word law under Article 13 includes only ordinary laws and not the constitutional Acts. Therefore, the Parliament by enacting a constitutional amendment act can abridge or take away the fundamental rights and such law will not void under Article 13(2). The Court gave the same ruling in Sajjan Singh Vs State of Rajasthan case in 1965.
In Golak Nath V. State of Punjab (1967) Supreme Court reversed its earlier stand. In that case Seventeenth Amendment Act (1964), which inserted certain state acts in the Ninth schedule, was challenged. The Supreme Court ruled that Fundamental Rights are given a ‘transcendental and immutable’ position and hence, the Parliament cannot abridge or take away any of these rights. Further it is said that a constitutional amendment act is also a law within the meaning of Article 13 and it would be void for violating any Fundamental Rights.
Parliament Reaction- The Parliament reacted to the Supreme Court’s judgement in the Golak Nath case by enacting the 24th Amendment Act (1971). This act amended Article 13 and 368. It declared Parliament has the power to abridge or take away any of the Fundamental Rights under Article 368 and such an act will not be a law under the meaning of Article 13.
FACTS OF KESAVNANDA BHARTI V. STATE OF KERALA (1973) CASE
Ø One of the historical cases in Indian judiciary system that outlined the basic structure doctrine of the constitution.
Ø In February 1970 Swami HH Sri K. Bharti, senior head of Endeer Mutt (Kerala), challenged the Kerala government's attempts, under two state land reform acts, to impose restrictions on the management of its property. A senior advocate Nanabhoy Palkhivala convinced the swami to file petition under Article 26, concerning the right to manage religiously owned property without government interference.
Ø The Supreme Court constituted its largest ever bench of 13 judges to decide this case. The case had been heard for 68 days and the verdict came with majority of 7:6.
Ø In this case, the Supreme Court gave a contrary judgment and overruled its previous judgement in Golak Nath case (1967), It upheld the validity of the 24th Amendment Act (1971) and stated that Parliament is empowered to abridge or take away any of the Fundamental Rights. At the same time, it laid down a new Doctrine of ‘Basic Structure’ of the constitution. It ruled that the constituent power under article 368 can be amend, modify or repeal by the parliament and any part of the constitution but subject to non-interference and non-violation of essential features (Basic Structure) of the constitution.
Ø Here Basic Structure Doctrine means- It is an Indian judicial principal, propounded by Justice Hans Raj Khanna, that the Constitution of India has certain basic features that cannot be altered or destroyed through amendment by the parliament. The basic features of the Constitution are as follows:-
§ Independent Judiciary.
§ Separation of Power.
§ Parliamentary System.
§ Supremacy of the Constitution.
§ Federal character of the constitution.
§ Secular character of the constitution.
Ø Parliament Reaction- The Parliament reacted to his judicially innovated doctrine of ‘basic structure’ by enacting the 42nd Amendment Act (1976). This Act amended Article 368 and declared that there is no limitation on the constituent power of parliament and no contravention of any of the Fundamental Rights. The Supreme Court has held that the power of Parliament to amend the Constitution will unfettered. However, in this landmark ruling, the Court adjudicated that while Parliament has "wide" powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution.
KESAVANANDA BHARTI CASE IMPACT ON CURRENT SITUATION
Reservation Continue as political will Says Supreme Court.
Earlier Supreme Court Condemn that Reservation should not be treated as political will since it had been incorporated as Transition provision when constitution had been made and It was envisaged that social disparities, economic and backwardness should be wiped out within a period of 10 years, but gradually, amendments have been made, and there is no review of the lists nor the provisions of the reservation have come to an end, but the scenario changed and the reservation policy gained even more momentum for examples Article 15(4) i.e. (Special Provision for Advancement of Backward Classes) is an exception to clauses 1 and 2 of Article 15, and it was added by the Constitution (1st Amendment) Act, 1951, as a result of the decision in State of Madras v. Champakam Dorairajan, Constitution (93rd amendment) Act, 2006 Provision for Reservation of Backward, SC and ST classes in private educational institutions (article 15(5), Reservation of posts in public employment on the basis of residence Article 16(3), Article 16(3) is an exception to clause 2 of Article 16 which forbids discrimination on the ground of residence. However, there may be good reasons for reserving certain posts in State for residents only. This article empowers Parliament to regulate by law the extent to which it would be permissible for a state to depart from the above principle. Reservation for backward classes in public employment Article 16(4), it empowers the state to make special provision for the reservation in appointments of posts in favour of any backward class of citizens which in the opinion of the State are not adequately represented in the services under the State. In a similar way many Amendments have been done in the Constitution for reservation, but apart from this it is a transitional provision hence basic features subsequently it can be amended under Article 368 of the constitution.
CONCLUSION
The Kesavananda Bharti case judgment is a watershed moment in the Indian Polity. Though Bharti lost his case, the judgment proved to be a saviour of democracy and saved it from falling into pieces. As an effect of the case and its judgments, in various other cases like Indira Gandhi v. Raj Narain and Minerva Mills v. Union of India, the supremacy of the Constitution and limits on the amending powers of the Parliament were upheld.
References-
J.N.Pandey, Constitutional Law of India
23 April, 2020 New Delhi Television (NDTV) News
DISCLAIMER- This article is based on the understanding and interpretation of the author and should not be construed as legal advice.
Regards,
PRIYANKA JOSHI
(Advocate)
Legal Consultant