INTRODUCTION –
This is the greatest decision in the history of Indian constitution which determined the fabric of Indian constitution and also has till date the highest number of judges on bench . Supreme Court of India outlined the Basic Structure doctrine of the Constitution.
JUDGES INVOLVED IN THE CASE –
• M. Sikri
• N. Grover
• N. Ray
• G. Palekar
• R. Khanna
• M. Shelat
• K. Mathew
• S. Hegde
• H. Beg
• Jaganmohan Reddy
• N. Dwivedi
• V.Chandrachud
FACTS OF THE CASE –
The factual summary of this case is as follows-
• In February 1970 Swami HH Sri Kesavananda Bharati, Senior head of “Edneer Mutt” – a Hindu Mutt situated in Edneer, a village in Kasaragod District of Kerala, challenged the Kerala government’s attempts, under two state land reform acts, to impose restrictions on the management of its property.
• Although the state invoked its authority under Article 21, an Indian jurist, Nanabhoy Palkhivala, convinced the Swami into filing his petition under Article 26, concerning the right to manage religiously owned property without government interference
• The big fight was anticipated. Major amendments to the Constitution (the 24th, 25th, 26th and 29th) had been enacted by Indira Gandhi’s government through Parliament to get over the judgments of the Supreme Court in R.C. Cooper (1970), Madhavrao Scindia (1970) and Golak Nath.
• The first had struck down bank nationalisation, the second had annulled the abolition of privy purses of former rulers and the third had held that the amending power could not touch Fundamental Rights.
• All these amendments were under challenge in Kesavananda. Since Golak Nath was decided by eleven judges, a larger bench was required to test its correctness. And so, 13 judges were to sit on the Kesavananda bench.
• Even though the hearings consumed five months, the outcome would profoundly affect India’s democratic processes
ISSUES OF THE CASE –
• Whether constitutional amendment as per article 368 applicable to fundamental rights also?
• Whether 24th amendment act 1971 is valid?
• Whether section 2(a) , 2(b) and 3 of 25th amendment is valid?
• Whether 29th amendment act 1971 is valid?
JUDGEMNT OF THE CASE –
The Supreme Court reviewed the decision in Golaknath v. State of Punjab, and considered the validity of the 24th, 25th, 26th and 29th amendments. The case was heard by the largest ever Constitutional Bench of 13 Judges. The Bench gave eleven separate judgements, which agreed on some points and differed on others.
There are 11 separate judgements of each judge, however the summarized form of the same is-
Writ Petition No. 135 of 1970 was filed by the petitioner on March 21, 1970 under Article 32 of the Constitution for enforcement of his fundamental rights under Articles 25, 26, 14, 19(1)(f) and 31 of the Constitution. He prayed that 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) be declared unconstitutional, ultra vires and void.
The Constitution (Twenty-fifth Amendment) Act came into force on November 5, 1971, the Constitution (Twenty-fifth Amendment) Act came into force on April 20, 1972 and the Constitution (Twenty-ninth Amendment) Act came into force on June 9, 1972. The effect of the Twenty-ninth Amendment of the Constitution was that it inserted the following Acts in the Ninth Schedule to the Constitution:
The Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35 of 1969).
The Kerala Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of 1971).
The petitioner then moved an application for urging additional grounds and for amendment of the writ petition in order to challenge the above Constitutional amendments.
Before proceeding with the main task, judges review : what was decided in I.C. Golak Nath v. State of Punjab [1967] 2 S.C.R. 762 ? In order to properly appreciate that case, it is necessary first to have a look at Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar [1952] S.C.R. 89 and Sajjan Singh v. State of Rajasthan [1965] 1 S.C.R. 933.
The Constitution (First Amendment) Act, 1951, which inserted inter alia Articles 31A and 31B in the Constitution was the subject matter of decision in Sankari Prasad’s [1952] S.C.R. 89 case. The main arguments relevant to the present case which were advanced in support of the petition before this Court were summarised by Patanjali Sastri, J. as he then was, as follows:
First, the power of amending the Constitution provided for under Article 368 was conferred not on Parliament but on the two Houses of Parliament as designated body and, therefore, the provisional Parliament was not competent to exercise that power under Article 379.
Fourthly, in any case Article 368 is a complete code in itself and does not provide for any amendment being made in the bill after it has been introduced in the House. The bill in the present case having been admittedly amended in several particulars during its passage through the House, the Amendment Act cannot be said to have been passed in conformity with the procedure prescribed in Article 368.
Fifthly, the Amendment Act, in so far as it purports to take away or abridge the rights conferred by Part III of the Constitution, falls within the prohibition of Article 13(2).
The view that Article 368 is a complete code in itself in respect of the procedure provided by it and does not contemplate any amendment of a Bill for amendment of the Constitution after it has been introduced, and that if the Bill is amended during its passage through the House, the Amendment Act cannot be said to have been passed in conformity with the procedure prescribed by Article 368 and would be invalid, is erroneous.
Although “law” must ordinarily include Constitutional law there is a clear demarcation between ordinary law which is made in the exercise of legislative power and Constitutional law, which is made in the exercise of constituent power. In the context of Article 13, “law” must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in the exercise of constituent power with the result that Article 13(2) does not affect amendments made under Article 368.
The Chief Justice came to the conclusion that “as a matter of construction, there is no escape from the conclusion that Article 368 provides for the amendment of the provisions contained in Part III without imposing on Parliament an obligation to adopt the procedure prescribed by the proviso.
Significance-
This judgement ruled that Article 368 does not enable Parliament in its constituent capacity to delegate its function of amending the Constitution to another legislature or to itself in its ordinary legislative capacity. This ruling made all the deemed constitutional amendments stipulated under the legislative powers of the parliament as void and inconsistent after the 24th constitutional amendment. These are articles 4 (2), 169 (3)-1962, 239A2-1962, 244A4-1969, 356 (1)c, para 7(2) of Schedule V and para 21(2) of Schedule VI. Also articles 239AA(7)b-1991, 243M(4)b-1992, 243ZC3-1992 and 312(4)-1977 which are inserted by later constitutional amendments and envisaging deemed constitutional amendments under legislative powers of the parliament, should be invalid. The Supreme Court declared in the case ‘A. K. Roy, Etc vs Union Of India And Anr on 28 December 1981’ that the article 368(1) clearly defines constituent power as ‘the power to amend any provision of the constitution by way of an addition, variation or repeal’. it reiterated that constituent power must be exercised by the parliament itself in accordance with the procedure laid down in article 368.
The government of Indira Gandhi did not take kindly to this implied restriction on its powers by the court. On 26 April 1973, Justice Ajit Nath Ray, who was among the dissenters, was promoted to Chief Justice of India superseding three senior Judges, Shelat, Grover and Hegde, which was unprecedented in Indian legal history. Advocate C.K. Daphtary termed the incident as “the blackest day in the history of democracy”. Justice Mohammad Hidayatullah (previous Chief Justice of India) remarked that “this was an attempt of not creating ‘forward looking judges’ but ‘judges looking forward’ to the office of Chief Justice”.
The 42nd Amendment, enacted in 1976, is considered to be the immediate and most direct fall out of the judgement. Apart from it, the judgement cleared the deck for complete legislative authority to amend any part of the Constitution except when the amendments are not in consonance with the basic features of the Constitution.
The basic structure doctrine was adopted by the Supreme Court of Bangladesh in 1989, by expressly relying on the reasoning in the Kesavananda case, in its ruling on Anwar Hossain Chowdhary v. Bangladesh (41 DLR 1989 App. Div. 165, 1989 BLD (Spl.) 1).
BY: PALAK GOEL
A COMPREHENSIVE WEBSITE FOR ALL LEGAL DEVELOPMENTS