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OAS Mains Q&A: Celebrating 47 years of Kesavananda Bharati Case

Context

Supreme Court gave the landmark Kesavananda Bharti vs State of Kerala verdict forty seven years ago on 24th April 1973. This judgement is hailed for giving us the famous doctrine of basic structure of the Constitution which has time and again prevented many constitutional crises.

Question

What is Keshavananda Bharati Verdict? Discuss Basic Structure Since Kesavananda Bharti Case

Sample Answer

Since the Indian Constitution was first adopted, debates have raged as to the extent of power that Parliament should have to amend key provisions. In the early years of Independence, the Supreme Court conceded absolute power to Parliament in amending the Constitution, as was seen in the verdicts in Shankari Prasad (1951) and Sajjan Singh (1965).

In subsequent years, as the Constitution kept being amended at will to suit the interests of the ruling dispensation, the Supreme Court in Golaknath (1967) held that Parliament’s amending power could not touch Fundamental Rights, and this power would be only with a Constituent Assembly.

In the early 1970s, the government of then Prime Minister Indira Gandhi had enacted major amendments to the Constitution (the 24th, 25th, 26th and 29th) to get over the judgments of the Supreme Court in RC Cooper (1970), Madhavrao Scindia (1970) and the Golaknath Case.

In RC Cooper, the court had struck down Indira Gandhi’s bank nationalisation policy, and in Madhavrao Scindia it had annulled the abolition of privy purses of former rulers.

All the four amendments, as well as the Golaknath judgment, came under challenge in the Kesavananda Bharati case– where relief was sought by the religious figure Swami Kesavananda Bharati against the Kerala government vis-à-vis two state land
reform laws.

Since Golaknath was decided by eleven judges, a larger bench was required to test its correctness, and thus 13 judges formed the Kesavananda bench. By a 7-6 verdict, the Constitution Bench ruled that the ‘basic structure’ of the Constitution is inviolable, and could not be amended by Parliament. The basic structure doctrine has since been regarded as a tenet of Indian constitutional law. The court held that under Article 368, which provides Parliament amending powers, something must remain of the original Constitution that the new amendment would change.

The court did not define the ‘basic structure’, and only listed a few principles — federalism, secularism, democracy — as being its part. Since then, the court has been adding new features to this concept.

‘Basic structure’ Since Kesavananda Bharti Case

The ‘basic structure’ doctrine has since been interpreted to include the supremacy of the Constitution, the rule of law, Independence of the judiciary, doctrine of separation of powers, federalism, secularism, sovereign democratic republic, the
parliamentary system of government, the principle of free and fair elections, welfare state, etc.

An example of its application is SR Bommai (1994), when the Supreme Court upheld the dismissal of BJP governments by the President following the demolition of the Babri Masjid, invoking a threat to secularism by these governments.

Critics of the doctrine have called it undemocratic, since unelected judges can strike down a constitutional amendment. At the same time, its proponents have hailed the concept as a safety valve against majoritarianism and authoritarianism.

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