9th September 2020

 Musings.......

Keshavananda Bharati- The sage who saved Indian Democracy 

Edneer Mutt in Kasargod District of Kerala has a rather inadvertent distinction of having as its Seer Keshavananda Bharati who's case turned out to be a landmark ensuring constitutional law prevailed in India. 

The seer who passed away recently, moved the Supreme Court challenging the land reform laws of Kerala. He was 79. 

The land reforms introduced in Kerala in 1969 deprived the Edneer Mutt of its land property - which is believed to have been founded by one of the first four disciples of Adi Shankaracharya. 

Keshavananada Bharati challenged the Kerala Governments takeover of its land in the Supreme Court in 1970. The mutt had lost income, and found it difficult to manage its affairs. 

The Keshavananda Bharati vrs State of Kerala case is the longest hearing held in the Supreme Court with over 68 hearings. 

Legal luminary Nani Palkhivala who appeared for the seer, argued that the question before the court involved a larger issue of the right of legislatures to make laws including the right of Parliament to amend Constitution. 

In the Keshavananda Bharati case, Supreme Court formed its largest ever bench of 13 judges. The bench was split to the middle and finally Justice HR Khanna tilted the balance in favour of judgement that Parliament cannot amend the Basic Structure of the Constitution. 

It is interesting that Keshavananda Bharati lost his own cas. The Kerala land reform had been given protection of Parliament when the Indira Gandhi government brought the 29th Constitutional Amendment Act. The Supreme Court upheld the laws and protection given to them. 

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Basic Structure of Constitution 

The question whether Fundamental Rights can be amended by Parliament under Article 368 came for consideration of the Supreme Court- 

1) Shankari Prasad Case (1951) 

The Constitutinal validity of First Amendment (1951) was challenged. 

The Supreme Court ruled that the power of Parliament to amend the Constitution under Article 368 also includes the power to amend Fundamental Rights. 

2) Golak Nath Case (1967) 

The Supreme court reversed its earlier stand. 

The SC held that the Fundamental Rights are given a " Transcendental and Immutable" position and hence Parliament cannot abridge or take away any of these rights. 

The Parliament reacted to the Golak Nath case (1967) by enacting the 24th Constitutional Amendment Act 1971. 

This act amended Articles 13 and 368. 

It declared that Parliament had thr power to 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. 

Article 13- declares that a Constitutional amendment is not a "law" and hence cannot be challenged. 

3) Keshavananda Bharati Case (1973)

The SC overruled the judgement in the Golak Nath Case. 

It upheld the validity of the 24th Amendment Act (1971) and stated that Parliament is empowered to take away any of the Fundamental Rights. 

However, it laid down a new doctrine of the " Basic Structure" of the Constitution. 

It ruled that constituent power of the Parliament under Article 368 does not enable it to alter the " basic structure " of the Constitution. 

This meant Parliament cannot take away a Fundamental Right that forms a part of the " basic structure" of the Constitution. 

The Doctrine of Basic structure was applied in the Indira Nehru Gandhi case (1975). Here the SC invalidated a provision of 39th Amendment Act (1975) which kept the election disputes involving the Prime Minister and Speaker of Lok Sabha outside the juridstriction of all courts. 

The court said this provision was beyond the amending power of Parliament and affected the basic structure of Constitution. 

Again Parliament reacted to the Basic Structure Doctrine by enacting the 42nd Amendment Act (1976). This act amended Article 368 and declared there is no limit on the constituent power of Parliament and no amendment can be questioned in any court on basis of contravention of any Fundamental Right. 

Minerva Mills Case (1989) 

Invalidated the 42nd Amendment Act as it excluded judicial review which is a " basic feature" of the Constitution. 

In a now famous statement the Supreme Court said - 

" Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power". 

In other words, Parliament cannot, under Article 368 expand its amending power so as to acquire for itself the right to repeal the Constitution or destroy its basic structure. 

In the Waman Rao case ( 1981) the SC adhered to the doctrine of Basic Structure and clarified that it would apply to constitutional amendments enacted after April 24, 1973 - the date of the judgement in the Keshavananda Bharati case. 

The term Basic Structure of the Constitution was not defined by the Supreme Court. It has evolved over time over successive judgements of the Supreme Court. 

The basic structure includes - 

- Supremacy of the Constitution 

- Soverign, Democratic and Republican nature of Indian Polity

- Secular character of the Constitution 

- Unity and Integrity of the Nation 

- Seperation of powers between legislature, executive and the judiciary 

- Federal character of constitution 

- Judicial Review 

- Welfare state ( socio-economic justice) 

- Parliamentary System 

- Rule of Law 

- Harmony and Balance between Fundamental Rights and Directive Principles

- Independence of Judiciary 

- Free and fair Elections 

- Limited power of Parliament to amend the Constitution 

- Essence of Fundamental Rights 

- Effective access to justice 

As we can now see the Keshavananda Bharati case is that straw, the last barrier that lies between India transforming from being a democratic state to becoming a Monarchy or an Autocracy. 

With a majoritarian Modi led Right wing government in power, who with its brute majority in both houses of Parliament, is undermining all democratic principles and have brought all Constitutional bodies within its power - the Keshavananda Bharati judgement and its Basic Structure Doctrine is the last hope for Democracy.

The mutt of Keshavananda Bharati lost its property but not before winning a constitutional guarantee to the fundamental rights of its citizens

Food for Thought.......

RC