The article has been written by Divya , a 1^st year law student of NLU Vizag.

Kesavananda Bharti Sripadagalvaru &Ors. V. State of Kerala & Anr.(1973)

The case propagated “basic structure doctrine” and is also known as Fundamental Rights Case. In mid 1970s , there was a power struggle between Judiciary and Parliament and at this boiling point the case was delivered on 24 April 1973 which was monumental. It is a unique case in history because of several reasons: the political scenario it was delivered in, wide varieties of opinions of judges, the biggest bench with 13 judges, sheer length of judgement i.e. 703 pages around 420,000words, Supreme Court sat in for longest duration of 5 months. 

 According to facts of the case, the Kerala  Land Reforms Acts (1963) came in force and gave power to acquire the land to government. Swami Kesavananda Bharti, the senior plaintiff and head of Edneer Matha in Edneer, Kasaragod, Kerala challenged Kerala government for imposing restrictions on management of its property. Nanabhoy   Palkhiwala , a noted jurist represented the case and filed it under WRIT petition , concerning the right to manage religiously owned property without government interference and challenged constitutional validity 0f 24^th, 25^th and 29^th constitutional amendment.

1. Twenty- fourth Amendment(1971) : Parliament had the power to amend, vary or repeal any provision of the constitution. 
2. Twenty-fifth Amendment(1971) : right to property curtailed and government can acquire property for public good and compensate accordingly.
3. Twenty-ninth Amendment(1972) : added two land reform statutes in Ninth Schedule of the Constitution.  9^th schedule can’t be questioned by courts.

The most critical question contended that the challenged amendments nullify most cardinal principles of our constitution and parliament cant do that but on the other hand, the government argued that there was no limit to Parliament’s amending power under article 368. 

By thin majority of  7:6 , it was declared by Supreme Court all constitutional amendments enacted after the date on which the Kesavananda judgement was delivered would have to pass the “basic-structure” created by it. Each judge according to them prepared a list of what comprised the basic structure. The list was not exhaustive but indicative in nature and some of the elements were: rule of law, independence of judiciary, doctrine of separation of power, federalism, secularism, sovereign and democratic republic, free and fair elections, welfare state, parliamentary system of government and list goes on.

OBSERVATION ON SC’S JUDGEMENT IN KESAVANANDA 

While the Supreme Court’s decision in Golaknath was the first significant step towards judicial supremacy and in Kesavananda case it firmly established that Supreme Court was unmatched in authority when it came to constitutional matters. It significantly broadened the scope of its judicial reviewby power to scrutinize all constitutional amendments and not just those affecting fundamental rights. The Hon’ble Supreme Court ensured that people’s representatives-meant to be servants of the Constitution – and not become masters. The power vested with parliament is not limitless and coexists with people. The power to determine the parts of the constitution that qualify as “basic” rests with Supreme Court whose interpretation is fluid and court are indissoluble  and perpetual institution. Thus Supreme court has custody of the Constitution and establishes supremacy in realm of it’s interpretation. 

CORDONING OFF FUNDAMENTAL RIGHTS FROM CONSTITUTIONAL AMENDMENT

Could the Parliament amend fundamental rights? In Golak Nath v. State of Punjab(1967) , the petitioners (landowners ) were deprived of their surplus landholdings under state reform legislation- the eleven judge bench pointed out that Article 13(2) states that no law of the state can violate any Fundamental Rights of any person in India. Thus it was found that Parliament DOES NOT have the right to amend PART III , by slender majority of 6:5 and fundamental rights were found to be so sacrosanct and transcendental that even a unanimous vote of all members of the Parliament would not be sufficient to undermine them. 

The shortcoming of doctrine is that the court applies a principle to the party before it, but gives no relief. In the case of RC Cooper V. Union of India (1970) which is also known as Bank Nationalisation case headed by 11 judge bench . The SC pointed out that if Government acquires any private property, the owner has the right to seek compensation and anyone can move to court if her/his Fundamental Rights are violatedor adequate compensation is not sought. 

The 24^th Amendment diluted Golaknath case and stated that the Parliament has unlimited powers to amend any part of constitution and furthermore the president is under an obligation to provide his assent to constitutional bills. In 25^th Amendment it diluted RC Cooper case stating that parliament has the right to decide the compensation to be given when government acquires any land and courts cannot intervene. 

CRITICISM OF SC’S VERDICT 

The “basic structure doctrine” doesn’t find any mention in the language of constitution and in fact, Golaknath finds more support from constitutional text than Kesavananda and it’s criticised for being too lengthy and causing uncertainity about 11 different opinions of judges and what basic structure comprises of . there is a danger with the ambiguity of basic structure doctrine and creates democratic imbalance as it gives power to Supreme Court  over constitutional amendments as it is unelected and self-appointed body . 

AFTER EFFECTS OF RULING 

At the time of decision in Kesavananda , the then Chief Justice of India was Justice S.M. Sikri and was due for his retirement the next day but the government was yet to announce his successor. According to the convention the seniormost judge with experience gets Chief Justiceship in India. So it should have been given to Justice Shelat followed by Grover and Hegde however , government superseded these three judges who had ruled in against it in the case of Kesavananda . Instead it appointed Justice A.N. Ray, who ruled in it’s favour as the next CJI. The three justices protested against Indira Gandhi’s government and resigned from the post. 

In the midst of national emergency in 1975, the Chief Justice of India A.N. Ray constituted a thirteen judges bench to review the Supreme Court’s decision on Kesavananda but the bench got dissolved in two days and even the reporting of press was restricted at that time. The only source to know anything was by accounts given by lawyers and judges present in courts. 

CONCLUSION

At last if we try to find a way to discard the ruling of Kesavananda , if we accept the argument of those opposing basic structure doctrine. As India believes in majority decision of bench , another bench consisting of at least thirteen judges would have to be constituted to reconsider the judgement. Moreover it can’t be overruled by legitimate exercise of legislative power. Both the situations are really diificult to work on and to preserve the Indian Democracy the structure should live on . 

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