Kesavananda Bharati v. State of Kerala
Introduction
Kesavananda Bharati Sripadagalvaru and Ors v. State of Kerala and Anr popularly known as Kesavananda Bharati Judgement (Writ Petition (Civil) 135 of 1970) popularly known as Kesavananda Bharati judgment is a landmark judgment ruled by the Supreme Court of India that cannot be amended by parliament itself. This particular case was presided over by a 13- judge bench that challenged the 29th amendment act 1972 of the Indian Constitution. This judgment took over 68 days for 11 different judgments were given which was then said to be the29th amendment act 1972 of the Indian Constitution by the majority of 7:6. This ruling was considered the most important and consequential verdict by the Honorable Supreme Court of India.
Who was Kesavananda Bharati and what was his role in the Indian Constitution?
His Holiness Swami Kesavananda Bharti Sripadgalvaru was the head prophet from the Edneer Math in the district of Kasaragod of Kerala. He was a Shankaracharya, the head of Hindu Monastery before his death. He passed away at the age of 79 leaving behind his mark in one of the most notable rulings of the honorable Supreme Court of India. Since his property rights were violated, he confronted the honorable court regarding the Kerala land reforms laws in 1970. Swami Kesavananda Bharti was the senior petitioner in this case, who helped the Supreme Court to establish the doctrine of Basic Structure from the parliamentary amendments. He followed the philosophy of Advaita Vedanta and was the follower of Shri Ishwarananda Bharti Swamiji.[1]
Facts about the case:
Swami Kesavananda Bharti was the senior plaintiff who challenged the acts of the Kerala government who were restricting him to manage property owned by him under land reforms acts. According to these acts, the government was entitled to obtain his land. The Swami filed the petition under Article 26 which relates to the Right to manage the religious affairs without the interference of the government, concerning the rights to manage religious affairs without the interference of the government, concerning the rights towards his owned property by the advice given by the noted Indian Law expert Nanabhoy Palkhivala on February 1970. Moreover, on 21st March 1970, Swami Keshavananda also moved to Hon’ble court for the enforcement of his rights and constitution under remedies under the articles provided under the Indian Constitution which were regarding, Article 32, Article 25(Right to practice and propagate religion), Article 14 (Right to equality), Article 31 (Compulsory acquisition of property), Article 26 (Right to manage religious affairs and Article 19(1)(b) (freedom to acquire the property).
It was rather surprising that the petition was still under consideration for the confrontation of the Kerala land reforms amendment Act 1970, the government of Kerala brought another act that was Kerala reforms amendment act 1971. Apart from these reforms the petitioner also challenged the 24th, 25th, and 26th Constitutional amendments which were introduced in the time of the Indira Gandhi government. Along with Nani Palkivala, other senior lawyers such as Fali Nariman and Soli Sorobjee also fought from the side of the petition and presented the case against the government.
Primarily the case focused on the powers of the parliament to amend the constitution. After the remarkable judgment in the case of Golak Nath v. State of Punjab 1967 AIR 1648-3, the Supreme Court reversing earlier judgment ruled that parliament has no right to amend fundamental rights. Since then, the parliament passed a series of amendments to counter the above-mentioned judgment of the case. After this, the parliament issued 24th amendment in the year 1971, 25th and 29th amendment in the year 1972. Moreover, while the court was reviewing the constitutional validity of the amendments passed, the parliament removed the right to property as a fundamental right and itself empowered to amend any part of the constitution. However, the parliament passed a law neglecting courts to review the amendment passed by the parliament. This case represented the fight for the supremacy of the parliament.
The amendments made after Golak Nath’s case and further challenged in Kesavananda Bharati’s Case:
The 24th amendment act 1971 was regarding fundamental rights. The parliament in its amendment neutralized through clause 4 under Article 13 of the Indian Constitution so that no amendment can be made under this article, while in the case of Golaknath the court considered the amendments made under Article 368 as an exception under Article 13. The parliament wanted to draw a diversion between the course of action in the particular amendment and the law through an amendment while dealing with Article 368 (2). Through which the president’s power to refuse or suppress the amendment Bill was removed to protect the amendment from the exceptions as said in the above-mentioned case.
After the 24th amendment, in the year of 1972, the subsequent 25th amendment was passed by the parliament. By bringing this amendment the parliament, wished to make it obvious that they are in no way bound to satisfactorily make amends with the landlords if their property by any chance is taken by the state government and of this very reason the word ‘compensate was replaced with word amount under Article 31(2) of the Indian Constitution. Also, the bridge between Article 31(2) and Article 19(1) (f) was removed.
Further in the same year the 29th amendment was also passed by the parliament. Under the 9th schedule of the 29th amendment act, it was stated that the judiciary cannot deal with any land reforms acts of Kerala. Through this amendment, they tried protecting the amendment made by the Kerala state in the context of the land reforms act.
Issues and the contention of the parties before the honorable court:
The first issue was whether the 24th and 25th Amendment’s act passed in the years 1971 and 1972 are constitutionally valid or not? Another issue raised was regarding the extension of the parliamentary power to amend the constitution of India.
The petitioner contented on the above-mentioned issue and was of the view that the 24th and 25th amendment act passed in the years 1971 and 1972 violates the fundamental rights provided under Article 19(1)(f) of the Indian Constitution. Article 19(1)(f) provides freedom to every citizen to acquire property, which was then snatched by the amendment passed by the parliament. The petitioner was of the contention that the constitution of India ensures fundamental freedom to its citizens and such a constitutional amendment is trying to snatch away the basic rights which violate the fundamental policy of the Constitution and contradicts its nature. Moreover, the petitioner also argued that the parliament cannot amend the constitution within its limited power. Further, they cannot change the basic structure of the constitution of India through their power to amend it.
Furthermore, in the case of Sajjan Singh v. State of Rajasthan 1965 AIR 845, 1965 SCR (1) 933, Justice Mathokar propounded that, ‘the parliament cannot exercise its power to amend the constitution by changing its basic structure.’ However, through these contentions petitioner pleaded for the protection of the property owned by him under 19(1)(f) of the Constitution of India. While the respondent argued on the point of Supremacy of the parliament. They regarded its supremacy as the basic principle while talking in the context of the Indian Legal System. The parliament and the state for fulfilling the socio-economic obligation provided under the preamble of the Indian Constitution for its citizens require parliament to exercise its power to amend the constitution. The parliament has the right to amend the constitution of India but it is necessary to follow the Doctrine of Basic Structure.[2]
Judgment:
The honorable court through its several judgments ruled by the majority of 7:6, that the parliament is not allowed to take away the fundamental rights of its citizens. Also, it is justifiable on the part of the parliament to amend the constitution by snatching away the fundamental rights of its citizens. Moreover, the parliament can only amend the provisions provided under its constitution while fulfilling the socio-economic obligation guaranteed under the preamble, if they do not change the basic structure doctrine.
The majority decision 7:6 was delivered by judges including Jagmohan Reddy, Chief Justice S.M. Sikri, B.K. Mukherjee, A.N. Grover, K.S Hegde, J.M. Shelath, and Justice Khanna observed that the parliament so amending the constitution should retain the originality and certain intrinsic areas are not the subject under the limited power of the constitution.
Removal of the freedom to acquire property under Article 19(1)(f) violated the basic structure and overruled the Doctrine of Basic Structure of the Indian Constitution. The court while dealing with 24th and 25th amendment act found that the first and the second part of the 25th amendment passed in the year 1972 are ultra vires respectively. The amendment power which was held by the court to be constitutional if it does not violate the basic structure doctrine was unanswered at the time of Golak Nath’s case.
The court further listed some principles of the doctrine of basic structure as federalism, secularism, and democracy as a part of it. Although the petitioner Kesavananda Bharati Sripadagalvaru lost the case, the point to note here is that the government or the parliament itself didn’t win the case either. The Kesavananda Bharati case interpreted the Basic Structure Doctrine of the Indian Constitution as including the rule of law, doctrine of Separation of power as Democratic, Secularism, federalism, sovereign and republic, the supremacy of the constitution, principle of a free and fair election, etc. The basic struct principle should not be interpreted by any power even parliament itself has to maintain the spirit of the constitution. The fundamental structure was yet not allowed to interfere but was left untouched for the judiciary to interpret it.
Further, the court believed that the ‘amend’ word in Article 368 was never meant to change the originality and the basic structure of the constitution. The court while reviewing the constitutional validity of the 25th amendment upheld that the prohibition of the judiciary will be struck down and is not the matter to be argued but the compensation provided to the landlord is not equal to the market value but it must be close or reasonable enough to the present market value.[3]
Conclusion:
The landmark case of Kesavananda Bharati provided superiority to the Basic Structure of the Constitution by saving its freedom, democracy, and its spirit. The suppression resulted from this judgment took decades of continuous battle on the independence of the judiciary. As an outcome of this judgment, the 39th amendment was passed prohibiting any challenge to elections of the speaker, president, and prime minister also no civil and criminal case being filed against them under the 41st amendment act. However, the case resulted in Executive v. Judiciary in the amendment, where it comes upon the judiciary to settle any issue.
Bibliography
[1] Apurva Vishwanath, Explained: In SC reading of basic structure, the signature of Kesavananda Bharati,The Indian Express, Aug 12, 2021,
[2] Shristi Suman, Kesavananda Bharati v State of Kerala, (1973), I pleader, Aug 12, 2021, https://blog.ipleaders.in/kbharatikerala/
[3] Why Kesavananda Bharati vs State of Kerala case is considered landmark in India’s independent history, India TV, Aug 12, 2021, who was Kesavananda Bharati and why Kesavananda Bharati vs State of Kerala case (1973) is landmark in history | What News – India TV (indiatvnews.com)
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