Part II

Q. Write a case comment on Keshavanand Bharti v/s State of Kerala.

Ans >

Keshavanand Bharati Case

Introduction:
The Keshawanand Bharati case is unarguably the greatest decision which
gave supremacy to the constitution.
It has till date the highest number of judges on the bench.
This case overruled the decision given in the case of Golakhnath v/s State of
Punjab by putting a restriction on the Parliament’s right to amend the
Constitution.

The Doctrine of Basic Structure was introduced to ensure that the

amendments do not take away the rights of the citizens which were
guaranteed to them by the Fundamental Rights.

Facts of the case :

Identification of Parties
Petitioner: Kesavananda Bharati & Others
Respondent: State of Kerala

Swami Kesavananda Bharti was the Senior Head of Edneer Mutt, District
Kasaragod, Kerala. The religious sector that he headed owned certain
lands.

The Kerala Land Reform Act, 1963 and its amendment in 1969 required
those lands to be acquired by the state government in order to fulfill their
socio-economic obligations.

State invoked its authority under Article 21 i.e.No person shall be deprived of his life
or personal liberty except according to procedure established by law.

On Nanabhoy Palkhivala’s suggestion Swamiji moved the apex court and

filed a petition under Article convinced the Swami into filing his petition under
Article 26, concerning the right to manage religiously owned property without
government interference.

Swami Keshawanand Bharti challenged the Constitution amendment Act,

1972, which included the Kerala Land Reforms Act, 1963 and its
amendement which required the land to be required by state.

In the said petition swamiji requested to his rights as under:

 Article 14 ( right to equality)

 Article 19 (1)(f) (freedom to acquire property)
 Article 25 (freedom to practice and propagate religion).
 Article 26 (right to manage religious affairs)
 Article 31 (compulsory acquisition of property)

Further the petition contended that Parliament cannot amend the Constitution in
a way they want to as they have a limited power to do so. The Parliament cannot
exercise its power to amend the constitution by changing its basic structure as
the same was propounded by Justice Mudhokar in the case of  Sajjan Singh v/s
State of Rajasthan. The petitioner pleaded for the protection of his property
under Article 19(1)(f) of the Indian Constitution. 

Arguments put forward by the government (respondents) :

The government had done no wrong by exercising its powers under Article 21
of the constitution which states that - No person shall be deprived of his life
or personal liberty except according to procedure established by law

Article 368 which grants the parliament a power to make formal amendments
and empowers Parliament to amend the Constitution by way of addition,
variation or repeal of any provision according to the procedure laid down.

Parliament can abrogate fundamental rights such as freedom of speech and

expression, freedom to form associations or unions, and freedom of religion.

The State contended that Supremacy of Parliament is the basic principle of

the Indian Legal System and so the Parliament has the power to amend the
Constitution unlimitedly. State also contended that in order to fulfill its socio-
economic obligations which have been guaranteed to the citizens of India
under the Preamble, it is important that the Parliament exercises its power to
amend the constitution without any limitations.
The Judgement :
It was held by the apex court by a majority of 7:6 that Parliament can amend any
provision of the Constitution to fulfill its socio-economic obligations guaranteed to
the citizens under the Preamble subject to the condition that such amendment won’t
change the basic structure of the Indian Constitution.

It was laid down by the court that the Doctrine of Basic Structure is to be followed
by the Parliament while amending the provisions of the Constitution.

Discussion :
Through this landmark judgement the Supreme Court answered e main
question - was the power of Parliament to amend the Constitution unlimited ?

In the early 1970s, the government of then Prime Minister  Indira Gandhi had
enacted major amendments to the Constitution to get over the judgments of
the Supreme Court in RC Cooper (1970 - , the court had struck down Indira
Gandhi’s bank nationalisation policy), Madhavrao Scindia (1970- it had
annulled the abolition of privy purses of former rulers. ) and the earlier
mentioned Golaknath (1967- 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).

The court found that the word ‘amend’ which was included in Article 368 does not
refer to amendments that can change the basic structure of the constitution. If
Parliament wants to amend a particular provision of the Constitution then such
amendment would need to go through the test of basic structure.

The Bench raised valid concerns that if the Parliament would be provided with
unlimited power to amend our Indian Constitution then the power will be misused
and would be changed by the Government according to its own will and preferences.

There was a need for a doctrine to preserve the rights of both Parliament and
citizens, therefore, the Bench came up with a midway to protect both of their rights
through the doctrine of Basic Structure.

The Doctrine of Basic Structure :

The court did not define the ‘basic structure’,  and only listed a few
principles — federalism, secularism, democracy — as being its part. Since
then, the court has been adding new features to this concept.
The ‘basic structure’ doctrine has since been interpreted to include
Supremacy of the Constitution
Rule of law
Independence of the judiciary
Doctrine of separation of powers
Federalism
Secularism
Sovereign democratic republic
Parliamentary system of government
Principle of free and fair elections
Welfare state

Critics stand: Critics of the doctrine have called it undemocratic,

since unelected judges can strike down a constitutional amendment.

Proponents stand : Proponents of the doctrine of basic structure have hailed

the concept as a safety valve against majoritarianism and authoritarianism.

Conclusion
Indian Constitution is not a mere political document rather it is a social
document based on a social philosophy. Every philosophy like religion contains
features that are basic and circumstantial. While the former cannot be altered the
latter can have changes just like the core values of a religion cannot change but the
practices associated with it may change as per needs & requirements. The bench
was fearful that if the Parliament is given unrestricted amending power then a
political party with a two-third majority in Parliament, for a few years, could make
any change in the Constitution even to the extent of repealing it to suit its own
preferences. However, the bench was also conscious of the poverty and social
backwardness lurking in the nation & to eradicate this state of poverty and social
backwardness the Parliament would need some sort of tool. Therefore, keeping both
extreme contentions in its mind, the court propounded Basic Structure theory
through which a honest Parliament can bring all the required changes needed and at
the same time check a malicious & power greedy conglomerate of politicians.