Kesavananda Bharati v. State of Kerala

Last updated

Kesavananda Bharati v. State of Kerala
Emblem of the Supreme Court of India.svg
Court Supreme Court of India
Full case nameKesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr.
Decided24 April 1973
Citation(s)(1973) 4 SCC 225; AIR 1973 SC 1461
Court membership
Judges sitting Sikri, C. J., A. N. Grover, A. N. Ray, D. G. Palekar, H. R. Khanna, J. M. Shelat, K. K. Mathew, K. S. Hegde, M.H. Beg, P. Jaganmohan Reddy, S. N. Dwivedi, Y. V. Chandrachud
Case opinions
There are certain principles within the framework of Indian Constitution which form its 'basic structure'. These principles are inviolable and hence cannot be amended by Parliament.
Majority Sikri, C. J.; Hegde and Mukherjea, JJ.; Shelat and Grover, JJ.; Jaganmohan Reddy, J.; Khanna, J.
Dissent Ray, J.; Palekar, J.; Mathew, J.; Beg, J.; Dwivedi, J.; Chandrachud, J.

Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr. (Writ Petition (Civil) 135 of 1970), also known as the Kesavananda Bharati judgement, was a landmark decision of the Supreme Court of India that outlined the basic structure doctrine of the Indian Constitution. [1] The case is also known as the Fundamental Rights Case. The court in a 7-6 decision asserted its right to strike down amendments to the constitution that were in violation of the fundamental architecture of the constitution. [2]

Contents

Justice Hans Raj Khanna asserted through the Basic Structure doctrine that the constitution possesses a basic structure of constitutional principles and values. The Court partially cemented the prior precedent Golaknath v. State of Punjab , which held that constitutional amendments through Article 368 were subject to fundamental rights review, but only if they could affect the 'basic structure of the Constitution'. At the same time, the Court also upheld the constitutionality of the first provision of Article 31-C, which implied that amendments seeking to implement the Directive Principles, which do not affect the 'Basic Structure,' shall not be subjected to judicial review.

The doctrine forms the basis of power of the Indian judiciary to review and override amendments to the Constitution of India enacted by the Indian parliament.

The 13-judge Constitution bench of the Supreme Court deliberated on the limitations, if any, of the powers of the elected representatives of the people and the nature of fundamental rights of an individual. In a verdict divided 7–6, the court held that while the Parliament has 'wide' powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution. [3]

When this case was decided, the underlying apprehension of the majority bench that elected representatives could not be trusted to act responsibly was unprecedented. The Kesavananda judgment also defined the extent to which Parliament could restrict property rights, in pursuit of land reform and the redistribution of large landholdings to cultivators, overruling previous decisions that suggested that the right to property could not be restricted. The case was a culmination of a series of cases relating to limitations to the power to amend the Constitution.

Facts

Kesavananda Bharati (center) at the Kumbh Mela in February 2013. Mahakumbh 2013 15.jpg
Kesavananda Bharati (center) at the Kumbh Mela in February 2013.

In February 1970 Swami Kesavananda Bharati, senior plaintiff and head of the Hindu monastery Edneer Matha in Edneer, Kasaragod District, Kerala, challenged the Kerala government's attempts, under two land reform acts, to impose restrictions on the management of its property. A noted Indian jurist, Nanabhoy Palkhivala, convinced Swami into filing his petition under Article 26, concerning the right to manage religiously owned property without government interference. The case had been heard for 68 days, the arguments commencing on October 31, 1972, and ending on March 23, 1973, and its judgement consists of 700 pages. [4] [5] [6] [7] [8] [9] [10] [11] [12]

Judgement

The Supreme Court reviewed the decision in Golaknath v. State of Punjab, and considered the validity of the article 24th, 25th, 26th and 29th amendments. The case was heard by the largest ever Constitution Bench of 13 Judges. The bench gave eleven separate judgments, which agreed in some points and differed on others. [13] Nanabhoy Palkhivala, assisted by Fali Nariman and Soli Sorabjee, presented the case against the government in both cases. [14]

Majority judgement

Upholding the validity of clause 1 of article 13 and a corresponding provision in article 368(3), inserted by the 24th Amendment, the Court settled in favour of the view that Parliament has the power to amend the fundamental rights. However, the Court affirmed another proposition also asserted in the Golaknath case, by ruling that the expression "amendment" of this Constitution in article 368 means any addition or change in any of the provisions of the Constitution within the broad contours of the Preamble and the Constitution to carry out the objectives in the Preamble and the Directive Principles. Applied to fundamental rights, it would be that while fundamental rights cannot be abrogated, reasonable abridgement of fundamental rights could be affected in the public interest. The true position is that every provision of the Constitution can be amended provided the basic foundation and structure of the Constitution remains the same. [13]

The nine signatories to the statement were

  1. Chief Justice S M Sikri
  2. J. M. Shelat
  3. K. S. Hegde
  4. A. N. Grover
  5. P. Jaganmohan Reddy
  6. D. G. Palekar
  7. H R Khanna
  8. A. K. Mukherjee
  9. Y.V. Chandrachud.

Four judges did not sign the judgment

  1. A. N. Ray,
  2. K. K. Mathew
  3. M. H. Beg
  4. S. N. Dwivedi. [15]

S.M. Sikri, Chief Justice

CJI S M Sikri held that the fundamental importance of the freedom of the individual has to be preserved for all times to come and that it could not be amended out of existence. According to the Chief Justice, fundamental rights conferred by Part III of the Constitution of India cannot be abrogated, though a reasonable abridgment of those rights could be effected in public interest. There is a limitation on the power of amendment by necessary implication which was apparent from a reading of the preamble and therefore, according to the learned Chief Justice, the expression 'amendment of this Constitution,' in Article 368, means any addition or change in any of the provisions of the Constitution within the broad contours of the preamble, made in order to carry out the basic objectives of the Constitution. Accordingly, every provision of the Constitution was open to amendment provided the basic foundation or structure of the Constitution was not damaged or destroyed.

Shelat and Grover, JJ

Held that the preamble to the Constitution contains the clue to the fundamentals of the Constitution. According to the learned Judges, Parts III and IV of the Constitution which respectively embody the fundamental rights and the directive principles have to be balanced and harmonised. This balance & harmony between two integral parts of the Constitution forms a basic element of the Constitution which cannot be altered. The word 'amendment' occurring in Article 368 must therefore be construed in such a manner as to preserve the power of the Parliament to amend the Constitution, but not so as to result in damaging or destroying the structure and identity of the Constitution. There was thus an implied limitation on the amending power which prevented the Parliament from abolishing or changing the identity of the Constitution or any of its Basic Structure.

Hegde and Mukherjea, JJ

Held that the Constitution of India which is essentially a social rather than a political document, is founded on a social philosophy and as such has two main features basic and circumstantial. The basic constituent remained constant, the circumstantial was subject to change. According to the learned Judges, the broad contours of the basic elements and the fundamental features of the Constitution are delineated in the preamble and the Parliament has no power to abolish or emasculate those basic elements of fundamental features. The building of a welfare State is the ultimate goal of every Government but that does not mean that in order to build a welfare State, human freedoms have to suffer a total destruction. Applying these tests, the learned Judges invalidated Article 31C even in its un-amended form.

Jaganmohan Reddy, J

Held that the word 'amendment' was used in the sense of permitting a change, in contradistinction to destruction, which the repeal or abrogation brings about. Therefore, the width of the power of amendment could not be enlarged by amending the amending power itself. The learned Judge held that the essential elements of the basic structure of the Constitution are reflected in its preamble and that some of the important features of the Constitution are justice, freedom of expression and equality of status and opportunity. The word 'amendment' could not possibly embrace the right to abrogate the pivotal features and the fundamental freedoms and therefore, that part of the basic structure could not be damaged or destroyed. According to the learned Judge, the provisions of Article 31d, as they, conferring power on Parliament and the State Legislatures to enact laws for giving effect to the principles specified in Clauses (b) and (c) of Article 39, altogether abrogated the right given by Article 14 and were for that reason unconstitutional. In conclusion, the learned Judge held that though the power of amendment was wide, it did not comprehend the power to totally abrogate or emasculate or damage any of the fundamental rights or the essential elements of the basic structure of the Constitution or to destroy the identity of the Constitution. Subject to these limitations, Parliament had the right to amend any and every provision of the Constitution.

H R Khanna J.

H R Khanna has given in his judgment that the Parliament had full power to amend the Constitution, however, since it is only a 'power to amend,' the basic structure or framework of the structure should remain intact. While as per the aforesaid views of the six learned Judges, certain "essential elements" (which included fundamental rights) of the judgment cannot be amended as there are certain implied restrictions on the powers of the parliament of India.

According to the Judge, although it was permissible for the Parliament to effect changes in the exercise of its amending power so as to meet the requirements of changing conditions, it was not permissible to touch the foundation or to alter the basic institutional pattern. Therefore, the words 'amendment of the Constitution' in spite of the width of their sweep and in spite of their amplitude, could not have the effect of empowering the Parliament to destroy or abrogate the basic structure or framework of the Constitution.

This gave birth to the basic structure doctrine, which has been considered as the cornerstone of the Constitutional law in India. [16] [17]

Significance

The government of Indira Gandhi did not take kindly to this restriction on its powers by the court. On 26 April 1973, Justice Ajit Nath Ray, who was among the dissenters, was promoted to Chief Justice of India superseding three senior Judges, Shelat, Grover and Hegde, which was unprecedented in Indian legal history. [18]

The 42nd Amendment, enacted in 1976, is considered to be the immediate and most direct fall out of the judgment. Apart from it, the judgement cleared the deck for complete legislative authority to amend any part of the Constitution except when the amendments are not in consonance with the basic features of the Constitution.

In the 1980 case Indira Nehru Gandhi v. Raj Narain, a Constitution Bench of the Supreme Court used the basic structure doctrine to strike down the 39th amendment. The 39th Amendment was passed in 1975, during The Emergency and placed the election of the President, the Vice President, the Prime Minister and the Speaker of the Lok Sabha beyond the scrutiny of the Indian courts. [19] [16] Adopting this amendment was a move to suppress Gandhi's prosecution.

The basic structure doctrine was also adopted by the Supreme Court of Bangladesh in 1989, by expressly relying on the reasoning in the Kesavananda case, in its ruling on Anwar Hossain Chowdhary v. Bangladesh (41 DLR 1989 App. Div. 165, 1989 BLD (Spl.) 1). [20]

See also

Related Research Articles

<span class="mw-page-title-main">Supreme Court of India</span> Highest judicial body in India

The Supreme Court of India is the supreme judicial authority and the highest court of the Republic of India. It is the final court of appeal for all civil and criminal cases in India. It also has the power of judicial review. The Supreme Court, which consists of the Chief Justice of India and a maximum of fellow 33 judges, has extensive powers in the form of original, appellate and advisory jurisdictions.

<span class="mw-page-title-main">Fundamental Rights, Directive Principles and Fundamental Duties of India</span> Rights provided to Indian citizens

The Fundamental Rights, Directive Principles of State Policy and Fundamental Duties' are sections of the Constitution of India that prescribe the fundamental obligations of the states to its citizens and the duties and the rights of the citizens to the State. These sections are considered vital elements of the constitution, which was developed between 1949 by the Constituent Assembly of India.

<span class="mw-page-title-main">Constitution of Singapore</span> Supreme law of Singapore

The Constitution of the Republic of Singapore is the supreme law of Singapore. A written constitution, the text which took effect on 9 August 1965 is derived from the Constitution of the State of Singapore 1963, provisions of the Federal Constitution of Malaysia made applicable to Singapore by the Republic of Singapore Independence Act 1965, and the Republic of Singapore Independence Act itself. The text of the Constitution is one of the legally binding sources of constitutional law in Singapore, the others being judicial interpretations of the Constitution, and certain other statutes. Non-binding sources are influences on constitutional law such as soft law, constitutional conventions, and public international law.

<span class="mw-page-title-main">Nani Palkhivala</span> Great Indian jurist and economist

Nanabhoy "Nani" Ardeshir Palkhivala was an Indian lawyer and jurist. Being lead counsel in cases such as Kesavananda Bharati v. The State of Kerala, I.C. Golaknath and Ors. v. State of Punjab and Anrs., Minerva Mills v. Union of India garnered him international recognition and cemented his reputation as one of India’s most eminent advocates.

The basic structure doctrine is a common law legal doctrine that the constitution of a sovereign state has certain characteristics that cannot be erased by its legislature. The doctrine is recognised in India, Bangladesh, Pakistan, and Uganda. It was developed by the Supreme Court of India in a series of constitutional law cases in the 1960s and 1970s that culminated in Kesavananda Bharati v. State of Kerala, where the doctrine was formally adopted. Bangladesh is perhaps the only legal system in the world which recognizes this doctrine with an expressed, written and rigid constitutional manner through article 7B of its Constitution.

The Thirty-ninth Amendment of the Constitution of India, enacted on 10 August 1975, placed the election of the President, the Vice President, the Prime Minister and the Speaker of the Lok Sabha beyond the scrutiny of the Indian courts. It was passed during the Emergency of 1975–1977. It was moved by the Congress government headed by Indira Gandhi to preempt a hearing by Supreme Court of India concerning the setting aside of Gandhi's election by the Allahabad High Court on the grounds of corrupt electoral practices.

<span class="mw-page-title-main">Hans Raj Khanna</span> Indian judge (1912–2008)

Hans Raj Khanna was an Indian judge, jurist and advocate who propounded the basic structure doctrine in 1973 and attempted to uphold civil liberties during the time of Emergency in India in a lone dissenting judgement in 1976. He entered the Indian judiciary in 1952 as an Additional District and Sessions Judge and subsequently was elevated as a judge to the Supreme Court of India in 1971 where he continued till his resignation in 1977.

<span class="mw-page-title-main">Forty-second Amendment of the Constitution of India</span> Amendment to the Indian Constitution

The 42nd amendment, officially known as The Constitution Act, 1976, was enacted during the Emergency by the Indian National Congress government headed by Indira Gandhi.

<span class="mw-page-title-main">Preamble to the Constitution of India</span> Set of guidelines to the nation and the Constitution of India

The Preamble to the Constitution of India presents the principles of the Constitution and indicates the sources of its authority. It was adopted on 26 November 1949 by the Constituent Assembly and came into effect on 26 January 1950, celebrated as the Republic Day of India. It was amended during the Indian emergency by Indira Gandhi where the words "socialist", "secular" and "integrity" were added.

<span class="mw-page-title-main">Koka Subba Rao</span> 9th Chief Justice of India

Koka Subba Rao was the ninth Chief Justice of India (1966–1967). He also served as the Chief Justice of the Andhra Pradesh High Court.

<span class="mw-page-title-main">Twenty-fifth Amendment of the Constitution of India</span> Permits eminent domain

The Twenty-fifth Amendment of the Constitution of India, officially known as The Constitution Act, 1971, curtailed the fundamental right to property, and permitted the acquisition of private property by the government for public use, on the payment of compensation which would be determined by the Parliament and not the courts. The amendment also exempted any law giving effect to the article 39(b) and (c) of Directive Principles of State Policy from judicial review, even if it violated the Fundamental Rights.

Amending the Constitution of India is the process of making changes to the nation's fundamental law or supreme law. The procedure of amendment in the constitution is laid down in Part XX of the Constitution of India. This procedure ensures the sanctity of the Constitution of India and keeps a check on arbitrary power of the Parliament of India.

<i>Teo Soh Lung v Minister for Home Affairs</i>

Teo Soh Lung v Minister for Home Affairs is the name of two cases of the Singapore courts, a High Court decision delivered in 1989 and the 1990 judgment in the appeal from that decision to the Court of Appeal. The cases were concerned with the constitutionality of amendments made to the Constitution of the Republic of Singapore and the Internal Security Act ("ISA") in 1989. The latter statute authorizes detention without trial on security grounds. These amendments had the effect of changing the law on judicial review of executive discretion under the ISA by re-establishing the subjective test enunciated in the 1971 High Court decision Lee Mau Seng v Minister for Home Affairs which had been overruled in 1988 by Chng Suan Tze v Minister for Home Affairs, and limiting the right of judicial review to ensuring compliance with procedures specified in the ISA. In other words, the amendments were intended to render the exercise of power by the President and the Minister for Home Affairs under the ISA to detain persons without trial not justiciable by the courts. Both the High Court and Court of Appeal found that these amendments were constitutional because Parliament had done nothing more than enact the rule of law relating to the law applicable to judicial review. Thus, the amendments validly operated to deprive the applicant Teo Soh Lung of the ability to apply to the courts for judicial review.

<i>I.C. Golaknath and Ors. vs State of Punjab and Anrs.</i> 1967 Supreme Court of India case

Golaknath v. State Of Punjab, or simply the Golaknath case, was a 1967 Indian Supreme Court case, in which the Court ruled that Parliament could not curtail any of the Fundamental Rights in the Constitution.

<span class="mw-page-title-main">Kesavananda Bharati</span> Indian Shankaracharya (1940–2020)

Kesavananda Bharati was an Indian Hindu monk who served as the Shankaracharya (head) of Edneer Mutt, a Hindu monastery in Kasaragod district, Kerala, India from 1961 until his death. He was the petitioner in Kesavananda Bharati v. State of Kerala, a landmark case that helped establish the basic structure doctrine of the Indian Constitution which guarantees that the fundamental or 'basic structure' of the Indian Constitution can not be altered by parliamentary amendment. He was a follower of Smartha Bhagawatha tradition and the Advaita Vedanta school of Hindu philosophy.

Edaneeru Mutt is a Hindu monastic institution renowned as a seat of art and learning located in Edneer, Kasaragod district, Kerala, India. It traces its parampara to Sri Thotakacharya, one of the first four disciples of Adi Shankaracharya, and it follows the Smarta Bhagawatha tradition and the Advaita Vedanta school of Hindu philosophy.

<i>Minerva Mills v. Union of India</i> Landmark decision of the Supreme Court of India

Minerva Mills Ltd. and Ors. v. Union Of India and Ors. is a landmark decision of the Supreme Court of India that applied and evolved the basic structure doctrine of the Constitution of India.

<span class="mw-page-title-main">Twenty-fourth Amendment of the Constitution of India</span> Constitutional amendment

The Twenty-fourth Amendment of the Constitution of India, officially known as The Constitution Act, 1971, enables Parliament to dilute Fundamental Rights through Amendments of the Constitution. It also amended article 368 to provide expressly that Parliament has power to amend any provision of the Constitution. The amendment further made it obligatory for the President to give his assent, when a Constitution Amendment Bill was presented to him.

Constitution bench is the name given to the benches of the Supreme Court of India which consist of at least five judges of the court which sit to decide any case “involving a substantial question of law as to the interpretation” of the Constitution of India or "for the purpose of hearing any reference" made by the President of India under Article 143. This provision has been mandated by Article 145 (3) of the Constitution of India. Also, matters related to the Amendment of an Act of the Indian Parliament are referred to the Constitution Bench by the Supreme Court under the same act. The Chief Justice of India has the power to constitute a Constitution Bench and refer cases to it.

Judicial review in India is a process by which the Supreme Court and the High Courts of India examine, determine and invalidate the Executive or Legislative actions inconsistent with the Constitution of India. The Constitution of India explicitly provides for judicial review through Articles 13, 32, 131 through 136, 143, 226 and 246.

References

Footnotes

  1. ↑ "Kesavananda Bharati ... vs State Of Kerala And Anr on 24 April, 1973". Indian Kanoon. Retrieved 24 June 2012.
  2. ↑ Keane, Debasish Roy Chowdhury & John (21 December 2021). "From checks and balances to compliance: How the judiciary has responded to government pressure". Scroll.in.
  3. ↑ "Kesavananda Bharati ... vs State Of Kerala And Anr on 24 April, 1973". Indian Kanoon. para. 787. Retrieved 24 June 2012.
  4. ↑ Datar, Arvind P. (24 April 2013). "The case that saved Indian democracy". The Hindu. ISSN   0971-751X . Retrieved 30 September 2018.
  5. ↑ Austin, Granville (1999). Working a Democratic Constitution - A History of the Indian Experience . New Delhi: Oxford University Press. pp.  258. ISBN   0-19-565610-5.
  6. ↑ Datar, Arvind P. (24 April 2013). "The case that saved Indian democracy". The Hindu. Chennai, India.
  7. ↑ KESAVANANDA BHARATI CASE | Legal Articles and Essays
  8. ↑ Kesavananda Bharati's Case | Arijit Pasayat, Ashok Bhan, Y.K. Sabharwal, S.H. Kapadia, C.K. Thakker, P.K. Balasubramanyan
  9. ↑ Kesavananda Bharati vs. State of Kerala
  10. ↑ "Event - THE KESAVANANDA BHARATI CASE - LU November 2011". Archived from the original on 4 March 2016. Retrieved 9 August 2013.
  11. 1 2 Revisiting a verdict
  12. ↑ 40 Years of Kesavananda Bharati! | subjudiced
  13. 1 2 "Constitution Amendment: Nature and Scope of the Amending Process" (PDF). Lok Sabha Secretariat. pp. 16–17. Archived from the original (PDF) on 3 December 2013. Retrieved 1 December 2013.PD-icon.svg This article incorporates text from this source, which is in the public domain .
  14. ↑ Satya Prateek (2008). "Today's Promise, Tomorrow's Constitution: 'Basic Structure', Constitutional Transformations And The Future Of Political Progress In India" (PDF). NUJS Law Review. West Bengal National University of Juridical Sciences. 1 (3). Retrieved 17 July 2012.[ permanent dead link ]
  15. ↑ G. G. Mirchandani (1 January 1977). Subverting the Constitution. Abhinav Publications. pp. 39–40. ISBN   9788170170570 . Retrieved 8 December 2013.
  16. 1 2 "Revisiting a verdict". Chennai, India: Frontline. 14–27 January 2012. Archived from the original on 3 December 2013. Retrieved 24 June 2012.
  17. ↑ "Basic structure of the Constitution revisited". The Hindu. Delhi, India. 21 May 2007. Retrieved 25 May 2015.
  18. ↑ Supreme Court Bar Association Archived 2009-10-04 at the Wayback Machine
  19. ↑ "THE CONSTITUTION (THIRTY-NINTH AMENDMENT) ACT, 1975". india.gov.in. Retrieved 7 May 2012.
  20. ↑ "Behind the 'basic structure' doctrine". Archived from the original on 20 December 2010. Retrieved 2 December 2013.{{cite web}}: CS1 maint: unfit URL (link)
  21. ↑ Extraordinary Case Study - Indian Express
  22. ↑ Andhyarujina, T R (2012). The Kesavananda Bharati Case: The untold story of struggle for supremacy by Supreme Court and Parliament. India: Universal Law. ISBN   978-93-5035140-6.
  23. ↑ Venkatesan, J. (16 October 2011). "Book on Kesavananda Bharati case to be released on Tuesday". The Hindu. Chennai, India.
  24. ↑ The Kesavananda Bharati Case : The Untold Story of Struggle for Supremacy by Supreme Court and Parliament- Buy online now at Jain Book Agency, Delhi based book store
  25. ↑ Book on "Kesavananda Bharati case" - General Knowledge Today
  26. ↑ "Book Review - THE KESAVANANDA BHARATI CASE - LU May 2012". Archived from the original on 2 May 2014. Retrieved 18 August 2013.
  27. 1 2 "Revisiting a verdict". The Hindu. Chennai, India.
  28. ↑ "Kesavananda Bharati Case : The Untold Story Of Struggle For Supremacy By Supreme Court &: Tr Andhyarujina: Text Books at Sapna Online". Archived from the original on 2 May 2014. Retrieved 18 August 2013.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.