Keshavnanda Barti Case: A Critique
Shankari Prasad Case:-
In Shankari Prasad v Union of India, the Supreme Court upheld the validity of the First amendment and held that the Fundamental Rights can be amended. The Court did not agree with the arguments of the petitioner and restricted the scope of Article and held that there is difference between the Constituent power and the ordinary legislative power of the Parliament. Article 13 is applicable to the laws made by the Parliament in its ordinary exercise of power, not on the Constitutional amendment passed in exercise of the Constituent power of the Parliament. The court also held that the Article 368 and Article 13 are in conflict with each other and thus the principle of harmonious construction needs to be applied. The court thus disagreed with the view that the Fundamental Rights are inviolable and cannot be amended. By applying the procedure as laid down in Article 368 of the Indian Constitution, the Fundamental Rights can also be amended.
Sajjan Singh Case:-
In 1964, the Constitutional validity of the Seventeenth amendment of the Indian Constitution was challenged in the famous case of Sajjan Singh v State of Rajasthan on the ground that it adversely affected the right to property.The court reiterated the view given in Shakari Prasad case. It held that the power of amendment can be applied on each and every provision of the Constitution. It again drew the distinction between the ordinary law and the Constitutional amendments and held that Article 13 is not applicable on Constitutional amendments. The Minority judgment was delivered by Justice Hidyatullah and Justice Mudholkar in separate judgments.
Justice Hidyatullah was of the view that there appears to be no reason to believe that fundamental rights are not really fundamental and all the assurances given in Part III are play things for a simple majority and can be amended like other parts of the Constitution. Justice Mudholkar was of the view that the every Constitution has certain features which are basic in nature and those features cannot be changed.
Sajjan Singh case also led to varied opinions in the legal arena and the view of the two judges giving the minority judgment also led to debates. Thus again the same issue was again raised before the apex court in the fomous case of I.C. Golaknath v. State of Punjab. Seventeenth Amendment Act has again been challenged in a determined manner. Eleven judges participated in the decision and they divided into 6:5. The majority now overruled the earlier two cases and held that the Fundamental Rights were non-amendable through the Constitutional amending process under Article 368. The minority though remained stick to the earlier two decisions.
Twenty Fourth Amendment:-
The following changes were brought by 24th Amendment:-
1. Article 368 was amended and the marginal note was changed from “Procedure for amendment of the Constitution” to “Power of Parliament to amend the Constitution and the procedure therefor.” This amendment was brought to clarify that Article 368 provided not only the procedure for amendment but also the power of the Parliament to amend the Constitution.
2. Article 13(4) of the Indian Constitution was added to the Indian Constitution, which made it clear that Article 13 will not be applicable to Constitutional amendments.
3. Article 368(3) was added to the Indian Constitution, which stated that Articke shall not be applicable on Constitutional Amendment.
4. Article 368(1) was added, which stated that the Parliament may by way of addition, variation or repeal any provision of this Constitution.
5. The provision was made that the President shall be bound to give its assent to the Constitutional Amendment.
Twenty Fifth Amendment:-
Twenty Fifth brought the following changes:-
1. Article 19(1) (f) was delinked from Article 31 (2).
2. Article 31C was added to the Constitution.
3. The word ‘amount’ was substituted for the word ‘compensation’ in Article 31(2).
4. A new provision Article 31C was added.
Twenty Ninth Amendment:-
By twenty ninth amendment, several acts including Kerala land Reforms Act were put in the Ninth Schedule to protect them from judicial review.
Kesavananda Bharati: Issues before the Bench
Kesavanand Bharati, a mutt chief of Kerala, challenged the validity of Kerala Land Reforms Act, 1963. During the pendency of the case, this Act was placed in the Ninth Schedule by 29th Amendment Act. He challenged the validity of the 29th Amendment and he was permitted to challenge the validity of the 24th and 25th Amendment also.
The 13 judges bench was constituted in this famous case of Kesavananda Bharati v State of Kerala, headed by Chief Justice Sikri as the decision of 11 judges bench of Golaknath was under review. Other judges were Justice 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 and Y.V. Chandrachud.
The major issues before the bench were
1. Whether the twenty-fourth amendment was unconstitutional or not.
2. Whether Article 13(2) is applicable on Constituional amendment as well, i.e. whether the term law in Article 13 includes Constitutional amendment or not.
3. Whether Fundamental Rights can be amended or not.
4. Whether Article 368 as it originally was conferred power on the Parliament to amend the Constituion.
5. Whether twentyfifth amendment was constitutional or not.
6. Whether substitution of the term ‘amount’ with the term ‘compensation’ in Article 31 was correct or not.
7. Whether Artilce 31C was valid or not.
8. Whether Directive principles will now be given predence over the Fundamental Rights.
9. Whether twenty ninth amendment was constitutional or not.
Judgment and Principle laid down by the court
The 13 judges bench after listening to the argument for sixty long days, the court passed its judgment which crossed six hundred pages. The Court unanimously decided that the 24th amendment was valid. On the question whether the Fundamental Rights can at all be amended, the bench was divided into 7:6. The minority was of the view that the Parliament has all power to amend the Constitution including the basic structure. The majority decided that the Parliament can amend any provision of the Constitution but the basic structure should not be destroyed, damaged or abrogated. The court affirmed that the power of the Parliament to amend the Constitution is not unlimited and the judicial review can be applied on it. The majority overruled Golaknath judgment as in the opinion of the bench, apart from fundamental rights, there are several other features and provisions in the Constitution, which are more important and which should not be allowed to be violated. Golaknath made the Fundamental rights non-amendable and this was quite harsh and will put an end to the flexibility of the Constitution. Thus the fundamental rights were allowed to be amended provided it does not abrogate the basic structure of the Constitution and it was held that all fundamental rights are not included in the basic structure, specially right to property is not as such. It was held that the twenty fourth amendment made that explicit what was implicit in Article 368 earlier.
The court also partly upheld the twenty fifth amendment of the Indian Constitution. The court upheld the substitution of the term “amount” for the term “compensation” but the courts also held that the amount must not be arbitrary. The non- applicability of Article 19(1) (f) to Article 31(2) was held to be constitutionally valid. The first part of Article 31 C was held valid so that the government can make legislations to give effect to the socio-economic reforms. The latter part of Article 31 C was held to be unconstitutional as it made the laws challenge proof.
Thus a new doctrine called the doctrine of basic structure was laid down in this case by the Supreme Court. Chief Justice Sikri himself expalined the term basic strucure and cited certain instances of the basic structure of the Indian Constitution. This Doctrine of Basic structure was furhter widened by the Supreme Court in a number of cases like Indira Gandhi case and Minerva Mills case.
Doctrine of Basic Structure: Widening Horizons
The doctrine of basic structure was laid down in Kesavananda Bharati v State of Kerala. But the major question which arises is what the basic structure of our Constitution is. The majority judges tried to explain this term and gave several instances for the same.
Chief Justice Sikri indicated that Basic structure consists of the following features:
1. The supremacy of Constitution
2. The republican and democratic forms of government
3. The secular character of Constitution
4. Maintenance of separation of power
5. The federal character of the Constitution
But he also held that these features are not exhaustive and includes other features also which the court may from time to time lay down.
Justices Shelat and Grover added another three features as basic structure:
1. The mandate to build a welfare state contained in the Directive Principles of State Policy
2. Maintenance of the unity and integrity of India
3. The sovereignty of the country
Justices Hegde and Mukherjee listed the following features as being the basic structure:
1. The Sovereignty of India
2. The unity of the country
3. The democratic character of the polity
4. Essential features of individual freedoms
5. The mandate to build a welfare state
Justice Jaganmohan Reddy referred the features contained in the Preamble only as the basic structure, i.e. the following features:
1. A sovereign democratic republic
2. The provision of social, economic and political justice
3. Liberty of thought, expression, belief, faith and worship
4. Equality of status and opportunity
Indira Nehru Gandhi v Raj Narayan
In Indira Nehru Gandhi v Raj Narayan, an appeal was filed relating to the validity of the election of Indira Gandhi as the Prime Minister, which was set aside by Allahahbad High Court. Pending the appeal, the Parliament passed the 39th Constitutional Amendment, which introduced a new Article 329A to the Indian Constitution. This Article 329A stated that the election of the Prime Minister and Speaker cannot be challenged in any court. It can be rather challenged before a committee constituted by the Parliament itself. The Supreme Court though validated the election of Indira Gandhi but declared 39th Amendment to be unconstitutional as it violated the basic structure of the Constitution. Justice H.R. Khanna held that the democracy is the basic structure of the Constitution and it includes free and fair election and thus cannot be violated. Justice Y.V. Chandrachud listed four basic features which he considered non- amendable:
1. Sovereign democratic republic status
2. Equality of status and opportunity of an individual
3. Secularism and freedom of conscience and religion
4. ‘Government of laws and not of men’ i.e. the rule of law
Minerva Mills v Union of India
In Minerva Mills v Union of India, the Constitutional validity of certain parts of 42nd amendment was challenged. Two more clauses were added to Article 368 of the Indian Constitution. Article 368(4) stated that no Constitutional amendment can be challenged in any court of law. Article 368(5) stated that the Parliament shall have unlimited power to amend the Constitution of India. Both these provisions were held to be unconstitutional as they violated the basic structure of the Indian Constitution. The court again expanded the horizon of the term basic strucutre and held that the following are the basic structure of the Indian Constitution:-
1. Judicial Review
2. Limited power of the Parliament to amend the Constitution.
In several other cases also, the doctrine of basic structure has been widened. Thus we can see the widening horizons of the basic structure.
Major Criticisms of Kesavananda Bharati Case:-
The majority decision in the famous case of Kesavananda Bharati has been criticized on various grounds. Prof. Upendra Baxi criticized the judgment of this case which runs for 670 pages that it will lead to an illiterate bar and he is also of the opinion that the exercise of analysing the judgment of this case is as delicate and difficult as that directed to the unravelling of the significance of the smile of Mona Lisa.
Apart from Upendra Baxi, various jurists have criticized the judgment of this case on various grounds.
The major criticisms of the majority decisions are as follows:-
The decision- against the intention of the members of the Constituent Assembly:-
According to Mr. N.A. Palkhivala, the counsel from the side of the petitioner, there are enough evidence from the Constituent Assembly debates that the members of the Constituent Assembly were against the view that the Fundamental Rights can be amended. Thus the Supreme Court erred in deciding that Fundamental Rights can be amended.
On April 29, 1947, an interim report on Fundamental Rights was placed before the Constituent Assembly and there was a debate on that interim report. On April 29, 1947, Shri K. Santhanam moved an amendment in Clause 2 which corresponded to the present Article 13 as follows:
“Shri K. Santhanam: Sir, I gave notice of an amendment but I will move it in a somewhat modified form in terms of a suggestion made by Sardar Patel. I move that in Clause 2 for the words ‘nor shall the Union or any unit make any law taking away or abridging any such right’, the following be substituted:
‘Nor shall any such right be taken away or abridged except by an amendment of the Constitution.’
The only reason is that if the clause stands as it is then even by an amendment of the Constitution we shall not be able to change any of these rights if found unsatisfactory or inconvenient. In some Constitutions they have provided that some parts of the Constitution may be changed by future constitutional amendments and other parts may not be changed. In order to avoid any such doubts I have moved this amendment and I hope it will be accepted.
The Hon’ble Sardar Vallabhbhai Patel: Sir, I accept the amendment”. In the draft prepared by the Constitutional Advisor in October 1947, Clause 9(2) corresponding to the present Article 13(2) was so worded as to exclude constitutional amendments from being rendered void under that article:
“(2) Nothing in this Constitution shall be taken to empower the State to make any law which curtails or takes away or which has the effect of curtailing or taking away any of the rights conferred by Chapter II of this Part except by way of amendment of this Constitution under Section 232 and any law made in contravention of this sub-section shall, to the extent of the contravention, be void.
But the Drafting Committee omitted the words excluding constitutional amendments, and in the draft Constitution as settled by the Drafting Committee, constitutional amendments were not excluded from the bar of Clause 8(2) corresponding to the present Article 13(2):
“(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void;”
This shows that the members of the Constituent Assembly did not agree with the view that the fundamental right can be amended or abridged by the way of the Constitutional Amendment.
Jawahar Lal Nehru wanted to make the Fundamental Rights as the permanent feature of the Indian Constitution and B.R. Ambedkar wanted to make it beyond the reach of Article 368.
According to N.A. Palkhivala, the majority of the members of the Constituent Assembly, who were alive in 1973 were against the view that the fundamental rights can be amended.
This reaffirms our view and thus we can conclude by saying that the Supreme Court erred by declaring that the Fundamental Rights can be amended.
Permitted the violation of inalienable natural rights, fundamental freedoms and basic human rights of the people
According to Natural Law Jurists, human beings while entering into the contract with the rulers, transferred the right to rule them but kept certain rights with themselves. Those rights are natural rights which the state, king or the government has no power to violate. These inalienable natural rights were permitted to be violated by the court. The court permitted the Parliament to take away the fundamental freedoms which the people have themselves reserved for themselves by the way of Constitutional amendments. The Supreme court has been made the custodian of these rights, then also erred in its decision by holding that the Fundamental Rights can be violated.
Chief Justice Subba Rao in the famous case of I.C. Golaknath v State of Punjab, equated the Fundamental Rights with natural rights and rightly held that when Parliament can’t abrogate the fundamental rights by Constituional amendment as well. But the same view was not taken in Kesavananda case. The Court perhaps did not realize that it allowed the violation of several basic human rights guaranteed under Universal Declaration of Human Rights, 1948 to which India was a signatory. Thus the Court can be said to have allowed grave injustice to be done at the hands of the Parliament in the form of Constitutional amendments.
The view that the term “law” under Article 13 does not include Constitutional Amendment – not correct:-
If we see the whole of the Constitutional Jurisprudence, we will find that the Constitution has also been recognised to be a law. In India also, the Constitution is considered to be the highest law of the land and thus the term law as used in Article 13 (2) must include the Constitutional Amendment as well. There is not much difference between the procedure by which an ordinary law is passed and the procedure by which a Constitutional amendment is passed. Thus, the Constitution which does not allow the law violating the fundamental rights to be passed by the Parliament even if they unanimously agree to it, cannot allow the Parliament to abrogate, violated and even repeal them by two third majority by way of Constitutional amendment. This can never be the intention of the Constitution makers. The argument given by the judges in this case that if the Constitution makers would have intended the same, then they must have made an expression provision declaring the Fundamental Rights to be an exception to Article 368. This view of the judges cannot be taken and believed. In Article 13 as well there existed no exception before 24th amendment that it won’t be applicable to Constitutional amendment. The intention of the framers of the Constitution cannot be presumed. In this regard, the evidence from the Constituent Assembly Debates holds good.
The term ‘amend’ wrongly defined in 24th Amendment- upheld:-
The court also erred in upholding 24th amendment as it contained Article 368 which had an explanation of the word amend by using the terms like addition, variation or repeal. The other words may sound alright but the term repeal creates utter confusion. Does it mean that a particular provision may be repealed or does it mean that the whole Constitution may be repealed. Some judges defined the term amend in its own way, i.e. amend means that the original should remain intact and only minor changes can be added but it did not declare this term unconstitutional and void and thus let the confusion remain. The term ‘repeal’ in this article may be used to justify the repeal of the whole Constitution in future. Thus, it is humbly submitted that the court erred in wrongly upholding the validity of this provision.
A creature of Constitution – permitted to increase its Constituent power:-
In India, it is not the Parliament, which is supreme rather it is the Constitution which is supreme. But if we have a look at 24th amendment, we will find that it seems through the changes brought by this amendment, the Parliamentary supremacy is sought to be achieved and the court by upholding the Constitutional validity of this amendment has allowed the creature of the Constitution to increases its constituent power. The term ‘state’ as defined in Article 12 and as used in Article 13 of the Constitution, includes the Parliament. The Parliament is the body from which the protection of fundamental rights is sought and the duty to protect the fundamental rights of the people from being violated by the state including the Parliament lies on the Supreme Court. The custodian of the fundamental rights allowed the Parliament to increase its constitutional powers and also allowed to immunize itself from its responsibility towards the people. It is an attempt by the majority to change the fundamental law in violation of self imposed restrictions. Thus, it must have been declared unconstitutional, by not doing so the court has committed an error.
Parliament cannot do indirectly what was enjoined by the Constitution not to do directly:-
Parliament is prohibited from making the laws which violated fundamental rights and thus neither by simple majority nor unanimously the Parliament can pass legislations, which abrogate the Fundamental Rights of the citizen. This was the main motive of the framers of the Constitution as is clear from the plain reading of Article 13. It is difficult to believe that Constitution makers did not have any problem if the same violation was done in the name of Constitutional amendments by two- thirds majority. The thing which the Parliament cannot do directly, it can’t also do indirectly. The Parliament cannot be allowed to first make necessary changes in the Constitution and then pass legislations for that effect. This will make the mockery of the intention of our Constitution makers, their dreams and philosophy. The court committed a blunder in upholding the validity of the 24th amendment to the Indian Constitution.
All fundamental rights form the basic structure and thus cannot be amended
In the words of the Chief Justice Subba Rao, it is difficult to believe that the fundamental rights which are given so much importance and protection under the Indian Constitution are not the basic structure of the Indian Constitution and can be amended. The whole aim of the Constitution makers seems to come to an end when we permit the Parliament to amend the fundamental rights.
The term fundamental itself means ‘basic’ and the fundamental rights are defined as the basic rights which are quite essential for the enjoyment of every human being. It is so basic that it is available to all human beings and one can go to apex court if these rights are violated. The judgment in Kesavananda Bharati case differentiates between fundamental rights. According to this judgment, some fundamental rights form the basic structure while others don’t. It is humbly submitted that the reasoning given by the court does not hold good because if the Constitution framers would have considered some fundamental rights to be not that important to be basic structure of the Indian Constitution, then those rights would not have been declared to be fundamental rights. All the rights which are enshrined in Part III of the Indian Constitution as fundamental rights form the basic structure of the Indian Constitution. It can never be accepted that some of those rights lie outside the basic structure of the Constitution. Justice Mukerjee and Justice Hegde were of the opinion that every Constitution consists of two parts- basic part and circumstantial part. Can it be believed that several fundamental rights are just circumstantial? If this would have been the situation, then those rights would not have been declared to be fundamental right. They would have merely been legal rights. Thus, it is humbly submitted that all fundamental rights form the basic structure of the Constitution and thus cannot be amended.
Right to property has been the worst affected fundamental right (at present this is not a fundamental but merely a legal right). Some of the judges expressly mentioned that the right to property is not included in the basic structure of the Indian Constitution. It is humbly submitted that such a view is not correct. The right to property has been an inalienable natural right recognised by all natural law jurists. Also under Article 17 of the Universal Declaration of Human Rights recognise it as basic human rights. Thus, the view that it does not form the basic structure and can be amended was not correct.
Doctrine of Basic Structure- A Vague Concept:-
Above all this case is remembered for the ‘Doctrine of Basic Structure’. But this doctrine has been criticised by various jurists and most of them have held that it is quite vague and is an undefined concept. What forms the basic structure and what does not form the basic structure is a very important question and the answer to it has not been given by the courts. The court has neither defined the basic structure nor has it given any test to determine the basic structure; it has just given certain instances of the basic structure and has always provided that the list is not exhaustive. It has remained on the whims and fancies of the court to determine what basic structure is and what is not. On the ground of the basic structure, every amendment is to be challenged in the court of law. The amending power of the Parliament has been subjected to this arbitrary and vague doctrine. It will be interesting to note that the basic structure is not the only term which was used. Different judges used different terms for it..A whole of array of terms were used like “essential elements”,”basic features”, basic foundation and structure”, “fundamental features”, “essential features” and “identity” of the Constitution; and “basic elements of the Constitutional structure”, “essential elements of the basic structure”, and, “essential elements in the basic structure” without taking into consideration the changes which they will bring in the meaning of this concept.
It is submitted that it won’t be correct to criticize this doctrine on the ground of being vague, if something cannot be precisely defined and there can’t be a cut and dried formula for everything. Something has not been precisely defined is not ground to declare that it is vague. In the legal world, there are various concepts which cannot be defined but that does not mean that it does not exist and is vague. Ex- several people criticize the idea of natural justice as vague as it cannot be precisely defined but is it really vague. The same holds true for the basic structure of the Constitution also.
Doctrine of Basic Structure- A landmark in the Constitutional Jurisprudence:-
Howsoever criticised by different people, the doctrine of basic structure in itself is a landmark in the Constitutional jurisprudence of India and is capable to enough to save our nation from any major catastrophe. At several instances, it has been successful in saving our Constitution and the rule of law.
Though by this judgment, all the fundamental rights could not be made immune from amendment but certainly the basic structure was given a protective shield and it was held that Parliament’s amending power is not absolute, the amending power is subject to inherent and implied limitations which do not permit Parliament to destroy any of the essential features of the Constitution and thereby damage the basic structure of the Constitution. The judgment has been a salutary check on Parliament’s tendency to ride roughshod over fundamental rights and its insatiable appetite to encroach upon fundamental right.
This doctrine has protected the country from the arbitrary 39th amendment and 42nd amendment in Indira Gandhi case and Minerva Mills case and will always be able to protect our country from even a slight chance of dictatorship and fundamentalism. It will be interesting to note that the Bangladesh Supreme Court has followed the Indian Supreme Court judgment in Kesavananda Bharati and struck down a constitutional amendment. In Pakistan also, the Lahore High Court and the Baluchistan High Court but not the Supreme Court took the same view. In the newly framed Constitution of Nepal, there are provisions as to the non-amend ability of certain parts of the Constitution and in some way or the other the doctrine of basic structure has been accepted.
So, we can understand the importance of the doctrine of basic structure, which has protected the rule of law not only in our country but in other countries as well. In the present scenario, this doctrine must be appreciated.
The doctrine of basic structure laid down in Kesavananda Bharat case is one of the finest examples of judicial creativity of the Indian judiciary. This doctrine is unique to our country only. No other country before ours adopted this doctrine though after this case, in some of our neighbouring countries, this doctrine has been adopted. The credit for the same must be given to the Indian judiciary, specially the thirteen judges bench which laid down this principle and most important of all the great lawyer Mr. N.A. Palkhivala, who can be credited for the formulation of this doctrine.
As we have seen that this doctrine has tried to find the midway between the positivist and naturalist school of law, it has been criticised by the jurists of both these schools but that does not mean that this doctrine needs to be criticised on so many grounds. Al those who were happy with the judgment of Golaknath case could not appreciate this judgment but CJ Subba Rao in his article ‘Golaknath & Kesavananda- Two judgments’ appreciated this decision and gave the view that for the protection of the Constitutional values, it is necessary that judicial control in some form must be exercised.