Kesavananda Bharathi is the case which saved Indian democracy; thanks to Shri Kesavananda Bharati, eminent jurist Nanabhoy Palkhivala and the seven. CASE NO.: Writ Petition (civil) of PETITIONER: Kesavananda Bharati Sripadagalvaru and Ors RESPONDENT: State of Kerala and Anr DATE OF. The case of Kesavananda Bharati v State of Kerala had been heard for 68 days, the arguments commencing on October 31, , and ending.
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State of Kerala and Anr. The Court partially cemented the prior precedent Golaknath v. State of Bharxtiwhich held that constitutional amendments pursuant to Article were subject to fundamental rights review, by asserting that only kesavananva amendments which tend to affect the ‘basic structure of the Constitution’ are subject to judicial review.
At the same time, the Court also upheld the constitutionality of first provision of Article 31 cwhich implied that any constitutional amendment seeking to implement the Directive Principles, which does not affect the ‘Basic Structure’, shall not be subjected to judicial review.
The case that saved Indian democracy – The Hindu
The basic structure doctrine forms the basis of power of the Indian judiciary to review, and strike down, amendments to the Constitution of India enacted by the Indian parliament which conflict with or seek to alter this basic structure of the Constitution. The judge Constitutional 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 sharply divided verdict, by a margin ofthe 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.
Although the court upheld the basic structure doctrine by only the narrowest of margins, it has since gained widespread acceptance and legitimacy due to subsequent cases and judgments.
Primary among these was kesavanandaa imposition of the state of emergency by Indira Gandhi inand the subsequent attempt to suppress her prosecution through the 39th Amendment. When the Kesavananda case was decided, the underlying apprehension of the majority bench that elected representatives could not be trusted to act responsibly was perceived to be unprecedented.
However, the passage of the 39th Amendment proved that in fact this bhwrati was well-founded. In Indira Nehru Gandhi v. Raj Naraina Constitution Bench of the Supreme Court used the basic structure doctrine to strike down the 39th amendment and paved the way for restoration of Indian democracy. The Kesavananda judgment also defined the extent to which Parliament could restrict property rightsin pursuit of land reform bhqrati the redistribution ,esavananda 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 Indian constitution. In February Swami Kesavananda Bharatisenior plaintiff and head of “Edneer Mutt” – a Hindu Mutt situated in Edneera village in Kasaragod district of Keralachallenged the Kerala government’s attempts, under two state land reform acts, to impose restrictions on the management of its property.
Although the state invoked its authority under Article 21, a noted Indian jurist, Nanabhoy Palkhivalaconvinced Swami into filing his petition under Article 26, concerning the kesavannada to manage religiously owned property without government interference.
Even though the hearings consumed five months, the outcome would profoundly affect India’s democratic processes. The case had been heard for 68 days, the arguments commencing on October 31,and ending on March 23, . The Supreme Court reviewed the decision in Golaknath v. State of Punjaband considered the validity of the 24th, 25th, 26th and 29th amendments. The case was heard by the largest ever Constitution Bench of 13 Judges. The bench gave eleven separate judgements, which agreed on some points and differed on others.
Upholding caes validity of clause 4 of article 13 and a corresponding provision in article 3inserted by the 24th Amendment, the Court settled in favour of the view that Parliament has the power to amend the fundamental rights also.
However, the Court affirmed another proposition also asserted in the Golaknath case, by ruling that the expression “amendment” of this Constitution in article means any addition or change kesavananva 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 effected 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. Palekar, H R KhannaA. Mukherjee and Yeshwant Vishnu Chandrachud. Four judges did not sign: S M SikriChief Justice 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 Hon’ble Chief Justice, fundamental rights conferred by Part III of the Constitution of India cannot be abrogated, though a reasonable abridgement 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 means any addition or change in any of the provisions of the Constitution within the broad contours of cas preamble, made in order to bhzrati 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. Held that the preamble to the Constitution contains the clue to the fundamentals of the Constitution. According to the learned Judges, Bhartai III and IV of the Constitution which respectively embody the fundamental rights and the kesavanandaa principles have to be balanced and harmonised.
The word ‘amendment’ occurring in Article must therefore be construed in vase a manner as to preserve the power of the Parliament to amend the Constitution, but not so as to result in bhsrati 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.
Held that the Constitution of India which is essentially a social rather than a political document, is founded on a kesavanana philosophy kesavanannda as such has two main features basic kesavanannda circumstantial. The basic constituent remained constant, the circumstantial was subject to change. kesavsnanda
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.
Caee 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.
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 Byarati 31d, as they henconferring bhzrati 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 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. According to the Hon’ble Judge, although it was permissible to the Parliament, in exercise of its amending power, to effect changes 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 kesavanandda effect of empowering the Parliament to destroy or abrogate the basic structure or framework of the Constitution.
Seven interesting things about Keshvananda Bharati case – The legend lives on!
This gave birth to the basic structure doctrinewhich has been considered as the cornerstone of the Constitutional law in India. This judgement ruled that Article does not enable Parliament in its constituent capacity to delegate its function of amending the Constitution to another legislature or to itself in its ordinary legislative capacity.
The government of Indira Gandhi did not take kindly to this implied restriction on its powers by the court. Daphtary termed the incident as “the blackest day in kesavanaanda history of democracy”.
Justice Mohammad Hidayatullah bharti Chief Justice of India remarked that “this was an attempt of not creating ‘forward looking judges’ but ‘judges looking forward’ to the office of Chief Justice”. The 42nd Amendmentenacted inis considered to be the immediate and most direct fall out of the judgement.
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. The basic structure doctrine was adopted by the Supreme Court of Bangladesh inby expressly relying on the reasoning bhagati the Kesavananda case, in its ruling on Anwar Hossain Chowdhary v.
Bangladesh 41 DLR App. From Wikipedia, the free encyclopedia. Citation s 4 SCC Holding There are certain principles within the framework of Indian Constitution which are inviolable and hence cannot be amended by the Parliament. These principles were commonly termed as Basic Structure. Case opinions Majority Sikri C. Hegde and Mukherjea, JJ. Retrieved 12 August Archived from the original on Archived from the original PDF on 3 December Retrieved 1 December This article incorporates text from this source, which is in the public domain.
Mirchandani 1 January Retrieved 8 December Retrieved 3 August Archived from the original PDF on 9 September Retrieved 11 August The Kesavananda Bharatii Case: The untold story of struggle for supremacy by Supreme Court and Parliament. Text Books at Sapna Online. Category Index Outline Portal. Retrieved from ” https: Indian constitutional case law in case law in India Supreme Court of India cases Constitutional law.
Kesavananda Bharathi is the case which saved Kesavanandaa democracy; thanks to Shri Kesavananda Bharatieminent jurist Nanabhoy Palkhivala and the seven judges who were in the majority.