50 Years of Kesavananda Bharati Case and its Legacy

In Context

• The seminal ruling in Kesavananda Bharati, in which the Supreme Court laid down the “basic structure” doctrine on the limits of Parliament’s power to amend the Constitution, recently completed 50 years.

Who was Kesavananda Bharati?

• Born in 1940, Kesavananda Bharati was the head to the Edneer Mutt, a Hindu monastery in Kasargod, Kerala 
• He challenged the Constitution (29th Amendment) Act, 1972, which placed the Kerala Land Reforms Act, 1963 and its amending Act into the 9th Schedule of the Constitution.
  • The 9th Schedule:
    • The 9th Schedule was added to the Constitution by the First Amendment in 1951 along with Article 31-B to provide a “protective umbrella” to land reforms laws in order to prevent them from being challenged in court.
• He argued that this action violated his fundamental right to religion (Article 25), freedom of religious denomination (Article 26), and right to property (Article 31).

Kesavananda Bharati Vs. State of Kerala (1973)

• The case:
  • It involved a property dispute which was decided by a special bench of the Supreme Court of India consisting of 13 judges which ruled with a 7–6 majority on 24 April, 1973.
• Judgment:
  • While the court upheld the land ceiling laws that were challenged, it struck down a portion of the 25th Amendment (1972) which stated that “if any law is passed to give effect to the Directive Principles” it cannot “be deemed to be void on the ground that it takes away or abridges any of the rights contained in Article 14, 19 or 31”.
  • The Court propounded what has come to be known as the “Basic Structure of the Constitution” which could not be abrogated even by a constitutional amendment”.

About the ‘Basic structure’

• About:
  • The phrase ‘basic structure’ was recognised for the first time in the historic case of Kesavananda Bharati v. State of Kerala in 1973 by the Supreme Court.
• Meaning: 
  • Indian courts define basic structure as inherent features that are built on the basic foundation, i.e., the dignity and freedom of the individual and of supreme importance which cannot by any form of amendment be destroyed.
  • Any law or amendment that violates these principles can be struck down by the SC on the grounds that they distort the basic structure of the Constitution.
• Important features/Basic structure of the constitution:
  • Supremacy of the Constitution;
  • Republican and Democratic forms of Government.
  • Secular character of the Constitution;
  • Separation of powers between the Legislature, the executive and the judiciary;
  • Federal character of the Constitution.
  • Rule of law
  • Judicial review
  • Parliamentary system
  • Rule of equality
  • Harmony and balance between the Fundamental Rights and DPSP
  • Free and fair elections
  • Limited power of the parliament to amend the Constitution
  • Power of the Indian Supreme Court under Articles 32, 136, 142 and 147
  • Power of the High Court under Articles 226 and 227

Analysis of Basic structure doctrine 

• About:
  • Over the decades, the basic structure doctrine has been criticised repeatedly for 
    • diluting the principle of separation of powers,
    • undermining the sovereignty of Parliament, and 
    • as a vague and subjective form of judicial review.
  • A scrutiny of the application of the doctrine over the past half-century reveals that although the highest court has invoked “basic structure” sparingly, it has mostly struck down amendments where judicial powers have been curtailed.

• Application of the doctrine in 50 years: 
  • Since 1973, the year of the Kesavananda Bharati judgment, the Constitution has been amended more than 60 times. 
  • In these five decades, the Supreme Court has tested constitutional amendments against the doctrine of basic structure in at least 16 cases.
    • In nine of these 16 cases, the Supreme Court has upheld constitutional amendments that had been challenged on grounds of violation of the basic structure doctrine. 
    • Six of these cases relate to reservations — including the quota for Other Backward Classes (OBC) and Economically Weaker Section (EWS), and reservations in promotions.
• NJAC:
  • The Supreme Court has struck down a constitutional amendment entirely just once — The Constitution (Ninety-ninth Amendment) Act, 2014.
    • The Act established the National Judicial Appointments Commission (NJAC), the body that would have been responsible for the appointment and transfer of judges, replacing the current Collegium system. 
  • The amendment was struck down by a five-judge Constitution Bench in 2015 on the grounds that it threatened “judicial independence”, which the court ruled was a basic feature of the Constitution.
• Partially struck down:
  • In six instances since 1973, including the Kesavananda ruling itself, the Supreme Court has “partially struck down” a constitutional amendment. 
    • In all these cases, the provision that was struck down related to the denial of judicial review.
  • Just one of these six rulings involve an amendment that was not made during the Indira Gandhi era — in Kihoto Hollohan, which dealt with the Tenth Schedule.
    • Kihoto Hollohan vs Zachillhu And Others (1992): 
      • The Supreme Court upheld The Constitution (Fifty-second Amendment) Act that introduced the Tenth Schedule or the so-called “anti-defection law” in the Constitution. 
    • The only portion of the amendment that was struck down was the one that stated that the decisions of the Speaker relating to disqualification cannot be judicially reviewed.
  • In 2021, a three-judge Bench of the court struck down a portion of The Constitution (Ninety-seventh Amendment) Act, 2011, but on procedural — not basic structure — grounds. 
    • The amendment changed the legal regime for cooperative societies

Way ahead

• Proponents of the basic structure doctrine consider it to be a safety valve against majoritarian authoritarianism. 
  • Without it, it is plausible that Indira Gandhi’s 1975 Emergency could have had far more deleterious effects on the health of Indian democracy.
• However, opponents claim that the doctrine amounts to judicial overreach over the legislature – something that itself is undemocratic.