Looking back at Kesavananda Bharati case, which led SC to define the basic structure doctrine of Constitution

Early morning on Sunday, the head seer of Edaneer Mutt in Kasargode, Kesavananda Bharati died at the age of 80. He had been unwell for two weeks. It was his case against the state of Kerala, often known as the fundamental rights case of 1973, which led the Supreme Court to define the basic structure doctrine of the Constitution.

It was this case which decided if Parliament had unfettered power as per Article 368 to amend or remove any portion of the Constitution, even to take away our fundamental rights. It was a political battle for Prime Minister Indira Gandhi, as during her time Parliament passed the 24th, 25th and 29th Constitutional Amendments, allowing amendment of fundamental rights and enabling acquisition of property.

But, for Bharati it was a property case, which he lost. On March 20, 1970, the seer filed a case in the Supreme Court against the Kerala Land Reforms Act as the state government had taken over land owned by the mutt in accordance with the Act.

The seer wanted the provisions of the Kerala Land Reforms Act, 1963 (Act 1 of 1964), as amended by the Kerala Land Reforms (Amendment) Act 1969 (Act 35 of 1969) to be struck down and declared unconstitutional. He said it violated his fundamental rights under Articles 25 (Right to practice and propagate religion), 26 (Right to manage property of a religious denomination), 14 (equality before the law), 19(1) (f) (Right to acquire, hold and dispose of property) and 31 (Right to property) of the Constitution.

During the pendency of the case, the Kerala Land Reforms Act was amended in 1971 by presidential signature and was placed in the ninth Schedule by the 29th Amendment.

This meant he also had to challenge three Constitutional amendments (24, 25and 29) as he contended that he would not succeed because of those amendments.

The 24th amendment stated that Parliament may amend by way of addition, variation or repeal any provision of the Constitution in accordance with the procedure laid down in that article. The 25th amendment curtailed the right to property, and permitted the acquisition of private property by the government for public use, on the payment of compensation which would be determined by Parliament and not the courts.

Bharati was introduced to jurist Nani Palkhivala, who fought the case in the apex court, along with Fali Nariman and Soli Sorabjee. Palkhivala realised this case could be used to challenge Parliament’s power to amend the Constitution at will, including over property rights.

The Supreme Court was then headed by Chief Justice of India SM Sikri, who constituted a 13-judge bench to hear the case. The bench comprised the CJI, Justices KS Hegde, AK Mukherjea, DG Palekar, JM Shelat, MH Beg, AN Grover, KK Mathew, P Jaganmohan Reddy, HR Khanna, AN Ray, SN Dwivedi, and YV Chandrachud. This was the largest bench ever constituted and the case was heard for 69 working days over six months from October 31, 1972, to April 23, 1973. Though attempts were made to delay the judgement, it was delivered a day before Sikri’s retirement.

A 13-judge bench had to be constituted because in 1967 an 11-judge bench had ruled in Golak Nath case that Parliament could not amend or alter the fundamental rights enshrined in the Constitution. The Indira Gandhi government, despite the ruling, had passed amendments such as the Bank Nationalisation Act and Abolishment of Privy Purses, which negated this order. These amendments were also challenged in the Bharati case.

It was a deeply contested judgement as 13 judges delivered 11 slightly different verdicts. In a 7:6 verdict, the 703-page judgement stated that Parliament could amend any part of the Constitution according to the powers under Article 368, as long as it does not abrogate or alter the fundamental rights enshrined in the Constitution or what is known as the basic structure of the Constitution.The verdict stated that the basic structure included primacy of the Constitution, federal character of the Constitution, separation of powers, secular nature of the Constitution and republican and democratic form of government.

Justice HR Khanna’s judgement spoke about the basic structure doctrine of Parliament. “The words ‘amendment of the Constitution’ with all their wide sweep and amplitude cannot have the effect of destroying or abrogating the basic structure or framework of the Constitution,” wrote Justice Khanna.

However, the court upheld the 29th amendment to the Constitution. This meant that the right to property did not pertain to the basic structure or framework of the Constitution. As a result, Bharati lost his case against the Kerala government.

The CJI, Justices KS Hegde, AK Mukherjea, JM Shelat, AN Grover, P Jaganmohan Reddy, and HR Khanna were in favour of the judgement while Justices AN Ray, DG Palekar, KK Mathew, MH Beg, SN Dwivedi, and YV Chandrachud dissented.

Several cases have referred to the basic structure doctrine. In 1980, the Minerva Mills case strengthened this doctrine. The court struck down the 42nd amendment to the Constitution, which attempted to reduce the powers of the Supreme Court and High Courts and laid down fundamental duties for citizens.

It was again referred to in the SR Bommai case of 1994. Using the basic structure doctrine, in this judgement, the SC attempted to curb the blatant misuse of Article 356 (regarding the imposition of President’s Rule on states).

The court relied on this doctrine in 2017 to strike down the 99th constitutional amendment, which was for setting up of a National Judicial Accountability Commission to replace the Collegium system for appointment of judges.

The basic structure doctrine has evolved over the years to protect the basic rights of citizens and prevented totalitarian regimes to gain control.