The Man – Swami Kesavananda Bharati Sripadagalavaru died on 06.09.2020
Swami Kesavananda Bharati was the head seer of the Edneer Mutt in Kasaragod district of Kerala since 1961. He left his signature in one of the significant rulings of the Supreme Court when he challenged the Kerala Land Reforms legislation in 1970. Swami Kesavananda Bharati, the head of a Kerala math, challenged the state government’s attempt to impose restrictions on the management of the religious property by moving to the Apex court on 21 March 1970 with an objective to distribute land among landless farmers.
An analysis of the landmark decision passed by the Hon’ble Supreme Court of India in Kesavananda Bharati v. State of Kerala in the present scenario on the death of Kesavananda Bharati Swamiji on 06.09.2020 is an attempt to present a hindsight perspective into what exactly happened, the socio-political compulsions of the day and their impact in shaping Indian society and governance today. A study of how the judicial decision framed or established norms and values which we treasure today is discussed in the present article.
For the judgment in the Swami Kesavananda Bharati case, being heard by a 13-member constitutional bench of the Supreme Court, it is alleged that battle lines were drawn before the case got underway and the divisions reflected in the very composition of the bench. There were the judges including Chief Justice SM Sikri, who had heard the Golak Nath case and had predetermined views about Parliament’s amending power.
Kesavananda Bharati was being represented by senior advocate Nani Palkhiwala who extended the ambit of the case and harvested an opportunity to challenge a series of constitutional amendments introduced by the Indira Gandhi government at the time, granting unlimited power to Parliament to alter the Constitution.
The case of Kesavananda Bharati v. State of Kerala is perhaps the most well-known constitutional decision passed by the Supreme Court of India. The case was heard by a Bench of 13 judges — the largest formed in the Supreme Court. It was heard over 68 working days from October 1972 to March 1973. The judgment was a mammoth 703 pages. The Bench gave 11 separate judgments that agreed and disagreed on many issues but a majority judgment of seven judges was stitched together by then Chief Justice of India, Justice S M Sikri on the eve of his retirement. However, the basic structure doctrine, which was evolved in the majority judgment, was found in the conclusions of the opinion written by one judge, Justice H R Khanna. While ruling that there is no implied limitation on the powers of Parliament to amend the Constitution, it held that no amendment can do violence to its basic structure (the “Basic Structure Doctrine”). Further, it established the Supreme Court’s right of review and, therefore, established its supremacy on constitutional matters.
One of the most important question is over what constitutes the Constitution’s basic structure. While overruling an earlier decision of the Supreme Court in Golak Nath v. State of Punjab, which held that constitutional amendments cannot impinge on fundamental rights, Kesavananda Bharati left the door open to a judicial view on whether any amendment to a fundamental right can be said to amend the basic structure.
The genesis of the dispute leading to Kesavananda Bharati lies in the interpretation of Article 368 of the Indian Constitution, which allows Parliament to amend the Constitution. While the Article itself is unambiguous, the scope and extent of Parliamentary power to modify the Constitution was a highly contested issue, resulting in the Golak Nath judgment wherein the Supreme Court held that Parliament, in exercising its power to amend the Constitution, did not have the power to amend the fundamental rights under Part III of the Indian Constitution.
The Kesavananda Bharati Case
Kesavananda Bharati Sripadagalvaru, the leader of a math in Kerala, challenged the Constitution (29th Amendment) Act, 1972, which placed the Kerala Land Reforms Act, 1963 and its amending Act into the IX Schedule of the Constitution. The SC then had 16 judges and yet Chief Justice S M Sikri constituted a 13-judge bench, the largest-ever till date to hear the matter. In a seven-six majority, the bench held that Parliament’s power to amend the Constitution was not explicitly limited, but was limited to not altering or modifying the basic features or structure of the Constitution. Eleven separate judgments were pronounced orally in court.
In a controversial move, during the pronouncement, Chief Justice Sikri circulated a paper entitled “View by the Majority”, which set out six propositions including Proposition No. 2: “Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution”. This proposition, lifted from Justice Khanna’s judgment, has become synonymous with the ratio of Kesavananda Bharati. Pertinently, only nine out of the 13 Judges signed the “View by the Majority”.
The Supreme Court in Kesavananda Bharati ultimately upheld the Land Reform Acts and the Amendment Acts that had been challenged. The only provision that was struck down was that portion of the Constitution (25th Amendment) Act, which denied the possibility of judicial review. In its majority ruling, the court held that fundamental rights cannot be taken away by amending them. While the court said that Parliament had vast powers to amend the Constitution, it drew the line by observing that certain parts are so inherent and intrinsic to the Constitution that even Parliament cannot touch it. However, despite the ruling that Parliament cannot breach fundamental rights, the court upheld the amendment that removed the fundamental right to property. The court ruled that in spirit, the amendment would not violate the “basic structure” of the Constitution.
“Basic Structure of the Constitution”
The origins of the basic structure doctrine are found in the German Constitution which, after the Nazi regime, was amended to protect some basic laws.
It is difficult to infer that the Judges that formed the majority view in Kesavananda Bharati agreed with each other on what constituted the “basic structure” of the constitution and/or why Parliament’s power to amend it was limited. Chief Justice Sikri held that there were certain inherent limitations on Parliament’s power to amend based on higher principles underpinning the Constitution, such as the supremacy of the Constitution, the republican and democratic form of Government, separation of powers, and the secular and federal character of the Constitution.
Justices Shelat and Justice Grover, in their common judgment, focused on individual dignity, along with the unity and integrity of the nation, to establish the basic elements of the Constitution. Justices Hegde and Mukherjea 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.
Justice Jaganmohan Reddy held that the essential structural elements of the Constitution, such as the sovereign democratic republican nature of the Constitution, social, economic and political justice, liberty of thought, expression, belief, faith and worship, and the equality of status and opportunity could not be amended. Justice Khanna, on the other hand, held that the basic structure only referred to the broad outlines of the Constitution and not any specific provision or detail of the Constitution. As such, he rejected the idea that the fundamental rights provisions or the Preamble could not be amended, as well as rejecting inherent limitations based on natural rights or cherished values like liberty, democracy and equality. The only limitation he believed existed on Parliament’s power to amend the Constitution was on the basis of the connotations of the word “amend” itself. He believed that the word “amend” implied the continued existence of some “basic structure” of the Constitution of India, pre and post amendment, thereby preventing Parliament from completely abrogating the Constitution.
Another point of departure between the Judges in the majority related to their conclusion as to the amended Article 31C of the Constitution. Five of the majority judges held that the entirety of Article 31C, which was added to the Constitution by the 25th Amendment, was void. Justice Reddy separated parts of the same Article to hold it valid, and only Justice Khanna held that the first part of Article 31C was valid while the second part was void.
The “View by the Majority” did not agree, acknowledge, harmonise or rationalise these distinctions. Even the legal basis for the “View by the Majority” (which was not signed by four of the 13 judges in protest) is questionable as it does not form part of any judgment. It was only in subsequent decisions of the Supreme Court, starting from Indira Gandhi v. Raj Narain, that the Courts began formulating a cohesive doctrine of what constituted the “basic structure” of the Constitution.
Politically, as a result of the verdict, the judiciary faced its biggest litmus test against the executive. The Indira Gandhi led government did not take kindly to the majority opinion and superseded three judges —J M Shelat, A N Grover and K S Hegde — who were in line to be appointed as Chief Justice of India after Justice Sikri on the basis of seniority. Justice A N Ray, who had dissented against the majority verdict in Kesavananda Bharati case, was instead appointed as the Chief Justice of India. The supersession resulted in a decades-long continuing battle on the independence of the judiciary and the extent of Parliament’s power to appoint judges.
Many new judicial appointments were also made, and, in 1975, with eight new judges on the bench and an emergency having been declared, Chief Justice A.N. Ray set up a bench of 13 Judges to review the judgment in Kesavananda Bharati matter. The hearing of the case began on 10 November 1975 and the matter was argued for over two days. On 12 November 1975, Chief Justice A.N. Ray unilaterally dissolved the bench as it was discovered that no review petition had been filed and the review had been initiated over an oral request, making the review process improper. In such circumstances, the basic structure doctrine survived and no further judicial review of the decision was attempted again.
Conclusion
What the Supreme Court faced in 1973 was a struggle for supremacy. Kesavananda Bharati case created a check on Parliament’s attempts to eliminate judicial review and seek absolute power to amend the Constitution. But it also conceded to Parliament the widest latitude to institute socio-economic policies. It refused to recognise the right to property as a basic feature of the Constitution, overruling Golak Nath and paving the way for land reforms.
Prior to Kesavananda Bharati, nearly 30 Constitutional amendments had already been passed since the Constitution came into effect in 1950, and there have been nearly 70 amendments since Kesavananda Bharati. However, despite the larger number of amendments made to the Indian Constitution, the hopes and ideas of its framers remain intact and identifiable as the Constitution adopted by the Constituent Assembly in 1949. We owe this principally to the Supreme Court’s decision in Kesavananda Bharati case. The Kesavananda Bharati judgment can thus be credited with securing the Fundamental Rights of individuals and for helping prevent the nation from slipping into a totalitarian regime.
The infamous blotch on the democratic history of India – the Emergency – was proclaimed just two years after the judgment was delivered on 24 April 24 1973. But since the law safeguarding the Basic Structure of the Constitution was in place, many individuals were spared the harassment and the nation’s democracy survived the Emergency.
Swamiji, the sole petitioner in the historic Fundamental Rights case whose steps along with courtroom genius Nani Palkhivala prevented the nation from slipping into a totalitarian regime. He was a legend then and will remain a legend forever for the legal industry. He shall always be remembered. Rest in peace Swamiji.
