Thursday, May 30, 2024





Give a detailed analysis of Kesavananda Bharati v State of Kerela (1973) 4 SCC 225 judgement.

• Facts of the Case
While the matter was pending before the Court of First Instance of the Supreme Court of India, the leader of the Kasaragod-based religious sect, Edneer Muralitharan, filed a Writ Petition in the Supreme Court under the provisions of Article 32 of the Constitution of India in order to protect his fundamental rights as laid down in Articles 14, 16, 17, 18, 19, 20, 25, 26, and 31 of the Constitution.
In 1969, the newly-passed legislation entitled the government to take possession of certain plots of land in the name of the leader of the religious sect of Kasaragod.
On the basis of the provisions of the Land Reforms amendment Act, 1969 the government was able to take possession of the plots of land belonging to the leader of the sect.
The matter was further pending before the Supreme Court of the United States of America on the basis of Article 32.
During the pendency of the matter before the Court of first instance of the Supreme Court, the law of the present State of Kerala was passed in 1971.
In the meantime, the 29th Amendment to the Constitution of India was also implemented.

• Issue of the case:

  1. Constitutional validity of 24th Constitutional (Amendment), Act 1971.
  2. Constitutional validity of 25th Constitutional (Amendment), Act 1972.
  3. Scope of the Parliament’s power to pass amendments in the Indian Constitution.

• Petitioner’s contentions
The petitioner claimed that the Parliament cannot change the Constitution in any way that it wants because the Parliament has a limited power to amend the Constitution. The Parliament cannot change the basic structure of the Constitution by changing the Constitution. This is because the Constitution is a legal document and the Parliament has limited power to amend it.

The petitioner sought protection for his property under the Indian Constitution. He claimed that the 24th Amendment and the 25th Amendment violated his fundamental right which is provided for in Article 19 (1) (f) of the Constitution. Fundamental rights are the rights that citizens of India have to ensure freedom. If the Constitution changes the fundamental right, then the freedom that is guaranteed by the Constitution to the citizens of India will be considered as taken away from them.
This claim was made by the petitioner in the context of the Sajjan Singh case in which Judge Mudhokar ruled that:
• Respondent’s contentions
The defendant in the main proceedings was the State. According to the State, the fundamental principle underlying the Indian Legal System is the supremacy of Parliament and hence the power of the Parliament to amend the Constitution is absolute. The State also claimed that in order to discharge its social and economic responsibilities which have been entrusted to the people of India by the Preamble of the Constitution, it is essential that the Parliament exercise its power of amendment without any restraint.
• Judgement
Kesavananda cleared all the ambiguities which were raised in the Golaknath judgment. It stated that Fundamental Rights are amendable according to Article 368. By validating 24th Constitutional amendment act, it acknowledged that this Article contains both the power and the procedure to amend the Constitution of this Article. It also clarified that the amendment in Article 368 is not the same as the law in Article 13. There is a difference between the two. Parliament has the power to make constitutional amendment under its constituent power which is much wider than the legislative power.
Kesavananda resolved the problem of Right to Property and stated that it is not part of the Basic Structure of the Constitution. Therefore, it can be amended. The 25th constitutional amendment and 29th constitutional amendment are valid.
The Supreme Court carefully addressed the main question of the scope of Article 368 and also took into account all the other essential elements raised. The SC in its judgment by ruling in favour of the Government of India gave broad amending powers to the Government of India. However, the Court also recognised and formulated the concept of Basic Structure of Doctrine. The Supreme Court also clarified that the word ‘amend’ is not ‘absolute’ and in order to be valid and permissible, it has to meet the test of ‘basic structure’. Basically, this principle states that the Constitution of India has some fundamental elements which cannot be changed, destroyed or annulled by the Parliament through its changes. The fundamental structure of doctrine serves as the basis of the protection of the Constitution, but it is not defined as a concept.
Kesavananda is the origin of the term ‘basic structure’ and it has gained prominence since then, but the concept of ‘Basic Structure Doctrine’ did not originate from Kesavananda. The term was first mentioned in the judgment in ‘Sajjan Singh’ in which Judge Mudholkar, who was in the minority, stated that ‘our makers of the Constitution with due care have created a Constitution with liberal principles’ and ‘a preamble that is the embodiment of the Constitution’. These are the fundamental elements of the Constitution which cannot be altered. Therefore, it is necessary to create a doctrine that defines the fundamental principles of the Constitution. This concept was first mentioned in ‘Kesavananda’ and later in ‘Golaknath’ but was not discussed in detail. Here is a comprehensive list of the fundamental principles that fall under ‘Basic Structure Doctrine’:

 Supremacy of the constitution
 Sovereignty
 Integrity of the country
 Democratic life
 Secularity
 Guarantee of basic Human Rights
 Parliamentary form of government
 The federal structure of the constitution
 Balance between the legislature, executive and judiciary and many more.
 This concept is something which is considered holy to the constitution of India and has proved its relevance in decision making from time to time.

• Basic Structure Doctrine
The fundamental structure doctrine states that the Parliament has an unlimited power to amend the Constitution, provided that such amendment does not affect the fundamental structure. The fundamental structure doctrine also states that any constitutional amendment must pass the ‘basic structure test’ to ensure that the fundamental structure of the Constitution is not altered.
• Summary
The Supreme Court has not yet ruled on the fundamental structure of the Constitution, and this is unlikely to change anytime soon. The idea that the Constitution has a fundamental structure is well established, but its content cannot be determined with any degree of certainty until a judgment of the Supreme Court clarifies it. However, the fundamental features of the Constitution, such as the sovereignty of the people, the democracy of the state, the rule of law, the independence of the judicial system, the fundamental rights of the people etc., have been repeatedly mentioned by the Supreme Court in its judgments.
One thing that has emerged from this dispute between Parliament and the judicial system is that all legislation and constitutional changes are subject to judicial review, and any law that goes against the fundamental structure is likely to be annulled by the Supreme Court.

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