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Polity-Basic Structure (Landmark Judgments-Part1)

Kesavananda Bharati v. State of Kerala (1973)


INDIA HAS OFTEN been faced with situations where its paramount democratic institutions have clashed. One such run-in was the struggle for power between the judiciary and the legislature which reached its boiling point in the mid-1970s. In the backdrop of a struggle for constitutional supremacy, the Supreme Court delivered what is arguably the most monumental decision in its history on 24 April 1973. Kesavananda Bharati v. State of Kerala2 (Kesavananda) is a case ‘unique in the history of international constitutional law’ for several reasons: the anxious political circumstances  in which it was delivered, the shift in the balance of democratic power it caused, the unprecedented number of separate opinions delivered by the court as well as the sheer length of the judgement itself.

The judgement, which spans nearly 800 pages and is about 420,0007 words long, has been named the ‘longest appellate decision’8 of the last century. Apart from its exceptional length, Kesavananda was significant in that the Supreme Court ascribed to itself the function of preserving the integrity of the Indian Constitution. The ‘basic structure’ doctrine formulated by the court represented the pinnacle of judicial creativity and set a benchmark for other constitutional courts around the world, particularly in South Asia.

The evolution of the Basic Structure:-

A Conservative Supreme Court: Shankari Prasad and Sajjan Singh

The struggle for the custody of the Constitution arose from questions concerning the right to property, which (until 1978) was a fundamental right under Article 31. Soon after the Constitution entered into force, agrarian land reform legislation was enacted in Bihar, Uttar Pradesh and Madhya Pradesh. Zamindars11 thus deprived of a significant portion of their landholdings filed petitions in different high courts alleging that their fundamental right had been infringed.

When the Bihar Land Reforms Act, 1950 was invalidated by the Patna High Court in 1951, the Constituent Assembly (functioning then as the provisional Parliament13) passed the Constitution (First Amendment) Act, 1951. This amendment inserted two provisions in the Constitution to insulate land reform legislation from judicial scrutiny. One of these provisions, Article 31B, created the Ninth Schedule to the Constitution. Any laws inserted (through constitutional amendments) into the Ninth Schedule could not be challenged for being inconsistent with fundamental rights.

Zamindars then challenged the amendment itself in Shankari Prasad v. Union of India (Shankari Prasad). One of the several grounds of challenge was that the expression ‘law’ under Article 13(2),
which prohibits the Parliament from making any laws that abridge or take away fundamental rights, included not only ordinary laws, but also amendments. If the court accepted this contention it would have implied that Part III of the Constitution (which deals with fundamental rights) could never be amended by the Parliament so as to take away or abridge fundamental rights. However, a five-judge bench of the Supreme Court unanimously rejected this argument, asserting that the constitutional scheme provided for a clear demarcation between ‘ordinary law, which is made in exercise of legislative power, and constitutional law, which is made in exercise of constituent power’. The net effect of the Supreme Court’s decision in Shankari Prasad was that amendments to the Constitution could not be reviewed by courts.

In Sajjan Singh v. State of Rajasthan (Sajjan Singh), the validity of the Constitution (Seventeenth Amendment) Act, 1964—which inserted forty-four statutes into the Ninth Schedule—was challenged before another five-judge bench of the Supreme Court.

Unlike in Shankari Prasad, the Parliament’s right to amend fundamental rights was not questioned in Sajjan Singh. Instead, the case challenged the Parliament’s failure to follow the procedure prescribed to amend the Constitution.As was the case in Shankari Prasad, this petition was also dismissed unanimously by the judges. However, while three of the five judges agreed that fundamental rights could not be amended, Justices Mohammad Hidayatullah and Janardan Raghunath Mudholkar expressed doubts about the correctness of the view adopted in Shankari Prasad that an amendment to the Constitution was not ‘law’ under Article 13(2) of the Constitution and therefore could not be reviewed by courts.

In fact, Justice Mudholkar also sowed the seeds for the basic structure doctrine adopted in Kesavananda when he referred to the ‘intention of the Constituent Assembly to give permanency to the basic features of the Constitution’ and said:

‘It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution.’

Fundamental Rights vis-a-vis Constitutional Amendment

Could the Parliament amend fundamental rights? This issue was raised yet again in I.C. Golak Nath v.State of Punjab (Golak Nath).The petitioners—again, landowners deprived of their surplus landholdings under state land reform legislation—challenged the validity of the First, Fourth and Seventeenth Amendments.

The Supreme Court constituted an eleven-judge bench to examine, yet again, whether constitutional amendments could be passed to take away or abridge fundamental rights and whether courts could review such amendments. By a slender majority of 6:5, the Supreme Court ruled that the distinction between constituent power and legislative power laid down in Shankari Prasad was unfounded. In other words, constitutional amendments fell within the purview of ‘law’ under Article 13(2) and courts could review them if they violated the fundamental rights of citizens.

The court found fundamental rights to be so sacrosanct and transcendental that even a unanimous vote of all members of the Parliament would not be sufficient to weaken or undermine them.Though the court asserted that fundamental rights are inviolable, it also admitted that applying this decision across the board to earlier constitutional amendments would lead to chaos, confusion and serious inequities.

Therefore, it decided to employ the American doctrine of ‘prospective overruling’, based on which its decision would apply only to subsequent constitutional amendments. So, the petitioners in Golak Nath got no relief, but, in the words of the court in Kesavananda, ‘left the court with the consolation that posterity will enjoy the fruits of the walnut tree planted by them’!

The application of the doctrine of prospective overruling in Golak Nath was questionable. To borrow Seervai’s words, the doctrine ‘had no advocate in Golak Nath’s case and it had no defender in Kesavananda’s case’.

The doctrine’s shortcoming is that the court applies a principle to the party before it, but gives the party no relief. All the court can say is that, irrespective of what happens in the case before it, a new rule is laid down for the future—a function that sounds perilously similar to that performed by the Parliament. If the court assumes jurisdiction for an exclusively ‘future’ function as opposed to a ‘present– future’ jurisdiction, it could be excessively anti-democratic and countermajoritarian and could damage (what remains of) the democratic balance envisaged in our Constitution.

In the United Kingdom, the House of Lords has recognized that prospective overruling amounts to a ‘judicial usurpation of the legislative function’, while a court of appeal in Canada has stated that ‘the most cogent reason for rejecting this technique is the necessity for our courts to maintain their independent, neutral, and non-legislative role’.

In Golak Nath, for the first time, the Supreme Court based its decision purely on political philosophy. On legal principles, Golak Nath received little acceptance from constitutional scholars. Both academic research and public opinion were driven against the Supreme Court’s argument.

Eventually, the Parliament sought to reconcile the question of whether constitutional amendments were ‘law’ under Article 13 by passing the Constitution (Twenty-fourth Amendment) Act, 1971 and inserting Article 13(4) to expressly exclude constitutional amendments from the ambit of Article 13. Through this amendment, the Parliament nullified the Supreme Court’s decision in Golak Nath and ensured that amendments to the Constitution could once again not be reviewed by courts even if they violated the fundamental rights of citizens.

Kesavananda Bharati: A Saint at the gates of Supreme Court

His Holiness Swami Kesavananda Bharati Sripadagalvaru was the head of Edneer math in Kerala. The Kerala Land Reforms Act, 1963 had affected the property of his religious institution, leading him to challenge state land reform legislation in Kerala in 1970.

While the proceedings were under way, the Parliament passed the Constitution (Twenty-ninth Amendment) Act, 1972, which inserted certain land reform laws to the Ninth Schedule and adversely affected Swami Kesavananda.

Nani Palkhivala, the petitioner’s counsel, seized the opportunity and challenged the constitutional validity of the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments to the Constitution. Here is a background to each of the amendments that was challenged-

1. According to the Twenty-fourth Amendment (enacted in 1971 to nullify Golak Nath), constitutional amendments were not ‘law’ under Article 13, and the Parliament had the power to amend, vary or repeal any provision of the Constitution.
2. The Twenty-fifth Amendment (enacted in 1971) gave Articles 39(b) and 39(c)34—described by Granville Austin as the most ‘classically socialist’35 provisions in the directive principles of state policy—precedence over the fundamental rights to equality, the seven freedoms36 and property.37 It also took away the power of the courts to decide whether a law was actually passed to further the policy laid down in these Articles.
3. The Twenty-ninth Amendment (enacted in 1972) added two land reform statutes to the Ninth Schedule of the Constitution.

The Supreme Court had to reconsider its decisions in Shankari Prasad, Sajjan Singh and Golak Nath. The most critical questions it dealt with were regarding how much amending power was granted to the Parliament under Article 368 and whether that power was unfettered, or could courts review amendments?

The petitioners in Kesavananda contended that the challenged amendments nullify some of the most cardinal principles of our Constitution and the Parliament could not draw authority from the Constitution to alter those very principles.

On the other hand, the government argued that there was no limit to the Parliament’s amending power under Article 368—the Parliament could do anything short of repealing the Constitution itself. Hence, it was relevant for the Supreme Court to examine the Parliament’s amending power to ascertain the constitutional validity of the amendments. Thirteen judges of the Supreme Court sat en banc for almost five months to consider questions that stood to define constitutionalism and the exercise of democratic power in India.

‘Basic Structure’ Doctrine: Judging the Constitutionality of Constitutional Amendments

The court’s most significant decision, made by a thin majority of 7:6, was that although the Parliament had the power to amend any part of the Constitution, it could not use this power to alter
or destroy the ‘basic structure’—or framework—of the Constitution.

In other words, adopting a teleological approach, the Supreme Court held that the expression ‘amendment’ did not encompass defacing the Constitution such that it lost its identity. All constitutional amendments enacted after the date on which the Kesavananda judgement was delivered would have to pass the ‘basic-structure filter’ created by the Supreme Court. The court empowered itself to judge the constitutionality of amendments and revoke any that compromised the essential features of the Constitution.

And the Basic Features Are…

German jurist Professor Dieter Conrad—perhaps influenced by radical constitutional amendments in Germany during the Weimar regime—is responsible for the genesis of the basic structure doctrine.

Coming to the judgement of the Supreme Court, there was no unanimity of opinion on what the basic structure was. Each judge in the majority prepared a list of what (according to them) comprised the basic structure—some judges accompanied this with a rider that the list they provided was not exhaustive.

Chief Justice Sikri listed the following features as encompassing the basic structure of the Constitution: supremacy of the Constitution, republican and democratic form of government, secular character of the Constitution, separation of powers between the legislature, executive and judiciary, and the federal character of the Constitution.

Justices Shelat and Grover reproduced, broadly, a similar list, with the following two additional elements: dignity of the individual (secured by fundamental rights) and the mandate to build a welfare state (in the directive principles of state policy), and the unity and integrity of the nation.

Justices Hegde and Mukherjea listed: sovereignty of India, democratic character of India’s polity, unity of the country, essential features of the individual freedoms secured to the citizens, and the mandate to build a welfare state and an egalitarian society.

Justice Jagmohan Reddy’s basic features comprised: sovereign democratic republic, parliamentary democracy and the three organs of the state. In delineating the basic structure of the Constitution, most judges relied upon the Preamble, the fundamental rights and the directive principles of state policy.

It is very difficult to say what these lofty principles constituting the basic structure really mean. The only certainty is that judges will be free to mould the ‘basic structure’ corpus to emasculate any constitutional amendment that strikes at the ‘spirit of Indian democracy’.

In Upendra Baxi’s words in 1974 that Kesavananda was ‘the Indian Constitution of the future’ turned out to be near prophetic

Observations on the Supreme Court’s Judgement in Kesavananda

While the Supreme Court’s decision in Golak Nath was the first significant sign of judicial supremacy in constitutional interpretation, Kesavananda firmly established that the Supreme Court was unmatched in authority when it came to constitutional matters.

In Kesavananda, the Supreme Court made a strategic retreat over amendments to fundamental rights, but significantly broadened the scope of its judicial review by assuming the power to scrutinize all constitutional amendments—not just those affecting fundamental rights.

If the Parliament had an unfettered right to amend the Constitution, the Supreme Court had a coextensive power to review and invalidate any amendment that destroyed its basic structure. To an extent, the majority of judges who recognized the basic structure doctrine in Kesavananda sought to achieve a win–win situation for the Parliament and the Supreme Court.

By limiting the Parliament’s power to amend the Constitution, the Supreme Court pre-empted ensured that the people’s representatives—meant to be servants of the Constitution—would not become its masters.

The basic structure doctrine postulated in Kesavananda has been credited with protecting the Indian state from collapsing like many of its South Asian counterparts, whether through totalitarian rule, military coups or other extra-constitutional means. It has also protected India from moving in a ‘sharply socialist direction’.

Both Kesavananda and Golak Nath were decisions taken by a judiciary weary of the Parliament subverting India’s constitutional and democratic structure. These decisions were the kind where judges primarily decided on the ends, and then set out to discover the legal means to achieve those predetermined ends.

Although Justices Hedge and Mukherjea held that ‘no single generation can bind the course of the generation to come’, this is what the Kesavananda judgement did, in a way. By finding certain parts of the Constitution to be basic, indestructible and immune, even from constitutional amendments, the Supreme Court held that certain parts of the Constitution bound successive parliaments in India in perpetuity.

Yet, the power to determine the parts of the Constitution that qualify as ‘basic’ rests with the Supreme Court, whose interpretation is fluid—the court being a perpetual and indissoluble institution.  It is through this interesting arrangement that the stability of basic values is tinged with a little flexibility, and the Supreme Court becomes the safety valve that decides when stability is shaken too much for the well-being of the nation. It also ensures that the Supreme Court has the final say on what form our Constitution takes at any given point of time, thus giving the Supreme Court the ‘custody of the Constitution’ and establishing the Supreme Court’s supremacy in the realm of the interpretation of the Constitution.

Criticism of the Supreme Court’s Verdict

  1. One of the most serious criticisms of Kesavananda is that the basic structure doctrine finds no mention in the language of the Constitution. The nexus between the doctrine and the Constitution as it has been codified can be attributed more accurately to spirit than to text.
  2. Kesavananda has been condemned for being too lengthy, thus causing uncertainty about what the eleven opinions collectively mean and what the basic structure actually comprised of.
  3. The judgement has also been described as one that provides an ‘outstanding study on lack of consensus’
  4. The danger with the ambiguity of the basic structure doctrine is that each judge’s conception depends on his personal preferences and virtually vests amending power in judges, resting on variable judicial perceptions and majorities.
  5. The basic structure doctrine has also been sharply criticized as being counter-majoritarian, and one that causes a democratic imbalance since it gives inordinate power over constitutional amendments to the Supreme Court,an unelected and self-appointed body.

However, the Supreme Court’s message in Kesavananda was clear—if any constitutional authority was going to wield substantial power over constitutional interpretation inconsistent with the traditional democratic process, it would be the judiciary.

The Supersession and the Emergency

The then Chief Justice of India, S.M. Sikri was due to retire a day after the decision in Kesavananda —on 25 April 1973; the government was yet to announce his successor. As per convention, the
senior-most judge of the Supreme Court is generally appointed as the Chief Justice of India; were this convention followed, the Chief Justiceship would have been accorded to Justice Shelat followed by Justices Grover and Hegde.

However, angered with the Kesavananda decision, the government superseded these three judges who had ruled against it in Kesavananda. Instead, it appointed Justice A.N. Ray, who had ruled in its favour, as the Chief Justice of India. This undermined the longstanding practice of appointing the senior-most judges of the Supreme Court. Justices Shelat, Grover and Hegde resigned in protest and the Indira Gandhi government’s attempt at muzzling judicial independence in the lead-up to the Emergency began in earnest.

Soon after, Raj Narain, Indira Gandhi’s political adversary, challenged her election to the Lok Sabha from the Rae Bareli constituency in the Allahabad High Court. He alleged that Indira Gandhi
had committed corrupt practices under the Representation of the People Act, 1951. Accepting this contention, the court voided Indira Gandhi’s election. On appeal to the Supreme Court, the judgement of the Allahabad High Court was stayed, and it was held that Indira Gandhi could continue to functions the Prime Minister of India on the condition that she would not draw a salary and would not speak or vote in the Parliament. The fallout of this judgement was that a national Emergency was proclaimed in India63 on 25 June 1975. It lasted twenty-one months.

During the pendency of the appeal, the Parliament hurriedly passed the Constitution (Thirty-ninth Amendment) Act, 1975, placing the election of the President, Vice-President, Prime Minister and
Speaker of the Lok Sabha beyond the scrutiny of courts. The amendment was meant to nullify the judgement of the Allahabad High Court so as to shield Indira Gandhi’s election from being challenged in the Supreme Court. As a result, in Indira Nehru Gandhi v. Raj Narain,64 Raj Narain challenged the validity of the constitutional amendment itself—the first time a constitutional amendment was challenged not in respect of the right to property or social welfare, but with reference to an electoral law.

By a majority of 4:1, the Supreme Court struck down the amendment, recognizing that it vitiated certain fundamental tenets forming part of the basic structure of the Constitution, including free and fair elections and the rule of law. Although four of the five judges had not accepted the basic structure argument in Kesavananda, they recognized that they were bound by the decision and  applied the theory in this case. However, Indira Gandhi’s election was not affected, since the court upheld retrospective amendments to the electoral laws.

The Unsuccessful Attempt to Review Kesavananda

In 1975, in the midst of the national Emergency declared by the Indira Gandhi-led Congress government, the Chief Justice of India A.N. Ray constituted a thirteen-judge bench to review the Supreme Court’s decision in Kesavananda. The bench was dissolved after two days of hearings and much of what transpired was shrouded in secrecy. The reporting of courts’ judgements by the press was also restricted at the time. Only those lawyers and judges who were present in the courtroom at that time, therefore, could give accounts of what had occurred.

Austin has described this disintegration of the bench (which was to review Kesavananda) as ‘the  most critical moment’ for the Constitution and Supreme Court since the original decision in Kesavananda. One of the principal arguments for the review of Kesavananda was that the basic structure doctrine was nebulous, and every judge had different opinions about what the doctrine encompassed.

The Supreme Court rightly chose uncertain democracy over certain tyranny.

The Last Effort at Parliamentary Supremacy

During the Emergency, the Parliament passed the most controversial and revolutionary of the constitutional amendments—the Constitution (Forty-second Amendment) Act, 1976 (the Forty-second Amendment Act).

Enacted to eliminate ‘impediments to the growth of the Constitution’, the amendment virtually remoulded the original Constitution through sweeping changes—substantive and symbolic—such as: the insertion of Part IVA into the Constitution, which highlighted the ‘fundamental duties’ of citizens, enabling the protection of any laws that gave effect to the directive principles under Article IV of the Constitution, insertion of the expressions ‘socialist’ and ‘secular’ into the Preamble to the Constitution, amendment of Article 368 nullifying the decision in Kesavananda that the Parliament’s amending power was subject to the ‘basic structure’ limitation, and strengthening the position of the Central government vis-à-vis the state governments. This amendment was a manifestation of India’s distinct shift to the political left.

Within a couple of years of the Forty-second Amendment Act being passed, the owners of a textile mill in Karnataka challenged the government’s nationalization of their undertaking. The mill was nationalized under a statute placed in the Ninth Schedule by the Parliament.

In Minerva Mills v.Union of India (Minerva Mills), the petitioners challenged the validity of Section 55 of the Forty second Amendment Act, which amended Article 368 to transform the Parliament’s amending power over the Constitution (which was limited by Kesavananda) into an unlimited one.

The Supreme Court unanimously struck down the amendments to Article 368, holding that judicial review and a limited amending power were basic features of the Constitution, which, according to the judgement in Kesavananda, could not be altered, destroyed or nullified.

The court’s logic was simple—if a donee was vested with limited power, it could not be permitted to exercise that very power and convert it into an unlimited one.

To take the aid of a simple example, if a genie grants you three wishes, it is understood that you cannot, as one of your wishes, ask for an unlimited number of wishes!

The Supreme Court’s judgement in Minerva Mills established that from the perspective of the basic structure doctrine, a minimum standard of judicial review was inviolate. Minerva Mills was the last case in which the government made a concerted effort to establish parliamentary supremacy over the Constitution. Having failed to scale back on the basic structure doctrine, Minerva Mills marks the beginning of an era of judicial supremacy in India, with the Supreme Court firmly entrenched as the final arbiter of constitutional interpretation in India.

The Ninth Schedule and Judicial Review

Since the insertion of the Ninth Schedule into the Constitution in 1951, 284 statutes (or segments) have come under its protection. Although it was initially meant to protect land reform legislation, the schedule now contains many statutes that have little to do with land reform—the Essential Commodities Act, 1955, the Levy Sugar Price Equalisation Fund Act, 1976, and the Bonded Labour
System (Abolition) Act, 1976 to cite a few examples.

In many cases, statutes or provisions of statutes which were struck down as violating fundamental rights could be protected by inserting them into the Ninth Schedule through constitutional amendments.

The Coelho Case-

The critical question before a nine-judge bench of the Supreme Court in I.R. Coelho v. State of Tamil Nadu (Coelho) was whether after the date of the Kesavananda decision, statutes could be made exempt from the test of satisfying fundamental rights by their insertion into the Ninth Schedule. The Supreme Court held that while laws could be added to the Ninth Schedule, once Article 32 (the right to move the Supreme Court for the enforcement of fundamental rights) was triggered, they would be subjected to the test of fundamental rights, which were a part of the basic structure.

The court also asserted that if any legislation added to the Ninth Schedule sought to nullify the principles of the ‘golden triangle’ of fundamental rights, it would be declared void. Therefore, all amendments seeking to insert legislation into the Ninth Schedule would be subjected to a twofold test:

(1) Did they conform with the basic structure of the Constitution? and

(2) Did they conform with the fundamental rights as forming a part of the basic structure under Part III of the Constitution?

The second test is a natural corollary of the first. The court unanimously concluded that the government could not wantonly exploit the Ninth Schedule as the ‘black hole’ of the Constitution. Apart from marking a significant development in the Supreme Court’s basic structure jurisprudence, Coelho has preserved the supremacy of the judiciary in constitutional adjudication.

Has the Basic Structure Doctrine Outlived Its Purpose?

A hotly contested question among scholars of constitutional law is whether the basic structure doctrine, formulated at the height of an oppressive era of single-party dominance, has crossed its expiry date. In the era of coalition politics, it is very unlikely that any party will wield the power that the Indira Gandhi government exercised in the 1970s. Yet, if one had to choose between the legislature and the judiciary as the custodian of the Constitution, it would likely be the latter.

Although the Kesavananda decision does not find favour with those who have been brought up with the traditional concept of judicial review, even sceptics would admit that it was the judiciary’s rescue operation that saved Indian democracy. From a practical perspective, arguments against the basic structure doctrine have been largely speculative, based on how some useful structural changes would be vitiated by its operation. Although authors have opined on the possible evils of the doctrine, it has not stalled any beneficial constitutional amendment so far and Indian courts have invoked it sparingly. Have we learnt from our mistakes? Unless we can say with conviction that we have, there is no saying that history will not repeat itself.

Moreover, since Kesavananda, by its very nature, cannot be overruled by the legitimate exercise of legislative power, the only other method of doing so would be through extra-constitutional means. Both of these situations seem highly improbable, at least in the near future. In any event, as a safety valve to preserve Indian democracy, the basic structure doctrine in Kesavananda should live on.

Golden Triangle of Indian Democracy – Articles 14, 19 and 21 are the three fundamental rights that stand above the rest. Writing for the majority in Minerva Mills, Justice YV Chandrachud has provided a fitting justification for protecting the Golden Triangle from legislative attack.



July 10, 2017

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