On the wee hours of the 6th of September, 2020, the Pontiff of the Edneer Mutt of Kerala left for heavenly abode. Ordinarily, the death of a religious head would not concern the legal world – except, this Pontiff who gave to us the most important constitutional case in our history, for his name was His Holiness Kesavananda Bharati.
By Ardhendumauli Kumar Prasad
Soon after the Constitution came into force, the Nehru Government heading the Provisional Parliament passed the First Amendment to the Constitution in 1951, to undo the striking down of land ceiling legislation by the Patna High Court, as being in contravention of the right to property enshrined in the Constitution. Strikingly, Articles 31A, 31B and the Ninth Schedule to the Constitution was a mechanism to save the laws from a Part III challenge – that is to say save laws from the Constitution.
In the absence of a constitutionally defined mechanism for bringing a challenge to an amendment to the Constitution, a writ petition came to be filed before the Supreme Court challenging the First Amendment as being in contravention of the Part III guarantee, and therefore void. In Sankari Prasad’s case[1], a Constitution Bench of the Supreme Court unanimously repelled a challenge to the constituent power of Parliament to amend the Constitution. However, the saga of adding legislation to the Ninth Schedule continued and the Seventeenth Amendment to the Constitution, which had included 44 legislation in the Ninth Schedule, came to be challenged in Sajjan Singh[2]. While the Constitution Bench headed by Chief Justice Gajendragadkar followed what had been laid down in Sankari Prasad, two Judges hit a discordant note on reading unlimited powers of amendment despite upholding the validity of the impugned amendment. While Justice Hidayatullah held that it could not be conceived that the power to amend the constitution was unlimited, and that this was not his final word on the issue, Justice Mudholkar doubted whether the “basic features” of the Constitution could be amended by Parliament.
The validity of the Seventeenth Amendment came to be assailed again in the case of Golak Nath[3]. A bench of eleven Judges heard the challenge, and for the first time, challenged the power of Parliament to amend the Constitution. Chief Justice Subba Rao led the majority of 6:5, which held that the power to amend the constitution was but legislative, and sourced in Entry 97 of List I, as Article 368 only prescribed the procedure to amend the Constitution and did not source the power. Since it was a legislative power, an amendment to the Constitution abridging or abrogating Fundamental Rights would be hit by the bar under Article 13. Essentially, Chief Justice Subba Rao turned the ratio of Sankari Prasad and Sajjan Singh by a hundred and eighty degrees. Significantly, this was the first time that the Court challenged the unlimited power exercised by Parliament in the sphere of amending the Constitution, and the majority view was bitterly criticized.
Parliament retaliated by the passage of the Twenty Fourth Amendment to the Constitution, which undid the effect of Golak Nath view. At this stage, His Holiness Kesavananda Bharati played a quintessential role in our Constitutional role. He was the lead petitioner to challenge the Twenty Fourth, Twenty Fifth and Twenty Ninth Amendments to the Constitution, which led to the land mark judgment of Kesavananda Bharati v. State of Kerala[4]heard by a bench of thirteen Judges. Interestingly, 6 Judges held that there were implied limitations on the power to amend the Constitution, and 7 Judges held that there were no implied limitations. However, one Judge from the latter held that though there were no implied limitations on the amending power, the text of Article 368 which read that “the Constitution shall stand amended” indicated that the identity of the Constitution could not be tinkered with by the amending process. Therefore, Khanna, J. noted that the basic structure or the basic features of the Constitution could not be amended. What came from the pen of Justice Khanna, coupled with the commonality of the judgment of the 6 Judges who held that there were implied limitations on the amending power, emanated what is called the basic structure doctrine. Essentially, the basic structure of the Constitution, i.e., the identity of the Constitution could not be changed by employing the constituent amending power. This was primarily because Parliament, which exercised the power of amendment, being itself a creature of the Constitution, could not change the Constitution’s identity. Unlike in the Westminster Model, where Parliament is supreme, in India, the Constitution is supreme. But the judgment was not without controversy. The first controversy was that the summary of the judgment, which has become the law of the land, titled “The View of the Majority” was signed only by nine out of the thirteen Judges. The second was far more significant, and a direct affront to the independence of the judiciary. As was the convention since 1951, the senior most Judge of the Supreme Court was appointed as Chief Justice upon the demitting of office of the incumbent Chief Justice. However, the Government, smarting from an interpretation which restricted Parliament’s powers, chose to supersede three senior Judges, namely Justices Shelat, Hegde and Grover, in favour of Justice A.N. Ray, for the Chief Justiceship upon the retirement of Chief Justice Sikri on the day following the pronouncement of the judgment. Interestingly, the three superseded Judges had held against the Government, while Justice Ray had held in favour of the Government.
Even the bitter critics of the Basic structure doctrine, became its votaries, when during the Emergency in 1975, a truncated Parliament with no opposition, amended the Constitution with the singular aim to save the election of the Prime Minister, which had been set aside by the Allahabad High Court, and was in appeal before the Supreme Court. The Thirty Ninth Amendment was passed in 5 days, with no opposition in both Houses of Parliament (as the Opposition leaders were detained in jail), to immunize the election of the Prime Minister retrospectively. On the 6th day, the Prime Minister’s appeal[5] was listed. This was the first time the basic structure was applied, and despite the fact that out of the five Judges on the Constitution bench, four had held against limitations on the amending power in Kesavananda Bharati the Court struck down the offending part of the Thirty Ninth Amendment. Three days after the Judgment, the then Chief Justice Ray constituted a Bench of thirteen Judges to review the Kesavananda Bharati verdict, only to abort the attempt, after two days’ hearing, primarily due to forceful and transcendental arguments by Nani Palkhivala. And thereafter, the basic structure doctrine has blossomed in India. While the Court has kept to itself the power to strike down amendments to the Constitution, it has done so only sparingly. As on date, only six amendments to the Constitution have been struck down by the Court – five for barring judicial review, and one on the ground of independence of the judiciary.
For more than 47 years now, the name of His Holiness Kesavananda Bharati has been synonymous to our Constitution. It will be an understatement to say that the judgment in Kesavananda Bharati v. State of Kerala is an important judgment. It has re-defined the Constitution, and has brought to the fore constitutional supremacy. The 702 closely typed pages of the report as not just eleven judgments, but an expression of the constitutional philosophy of the framers of our Constitution. His Holiness Kesavananda Bharati, albeit unwittingly, has caused the single most important event in our constitutional history in the last seven decades – the development of the basic structure doctrine. Upon his passing, I express my homage.
The Author is Advocate on Record, Supreme Court of India
[1]Shankari Prasad Singh Deo v. Union of India, 1952 SCR 89
[2]Sajjan Singh vState of Rajasthan (1965) 1 SCR 933
[3]I.C. Golak Nath v. State of Punjab, (1967) 2 SCR 762
[4]His Holiness Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225
[5]Indira Gandhi v. Raj Narain, 1975 Supp SCC 1.