In this case Keshavnanda Bharati[1] had challenged Kerala reform law nearly four decades court set the principle that the supreme court is a guardian of the essential structure of the constitution of India and therefore the verdict involved 13 judges, the most important bench ever to take a sit within the apex court. The apex court ruled that the 29th Amendment is valid and held that the two Kerala land Acts that were included in the Ninth Schedule are entitled to the protection of the Article 31B (Validation of the certain acts and regulations ) of the constitution. In this case it was the culmination of the serious conflicts between the judiciary and the government. In 1967, the Supreme Court took an extreme view, in the Golak Nath case[2], that Parliament could not amend or alter any fundamental right. The case came to an eye of Nani Palkhivala, possibly the foremost eminent advocate within the country at that time who decided it could be an honest case on which to challenge the parliament’s power to amend constitution.
In March 1970 he filed a case challenging the Kerala government’s attempts to take over mutt property. The case came to the attention of Nani Palkhivala, possibly the most eminent advocate in the country at that time, who decided this might be a good case on which to challenge Parliament’s power to amend the Constitution at will, including over property rights matters.
Issue
- Constitutional Validity of 24th Constitutional (Amendment), Act 1971
- Constitutional Validity of 25th Constitutional (Amendment), Act 1972
- Extent of Parliament’s power to amend the Constitution
QUESTION ARISES:
- Was the facility of parliament to amend the constitution unlimited?
- What constitutes the constitution basic structure?
The Keshavnanda Bharati case was a conflict between the government and the judiciary. In 1967, the supreme court took an extreme view, in the Golak Nath case, that the parliament couldn’t amend or alter any fundamental rights. Two years after Golak Nath case, the government under the prime minister Mrs. Indira Gandhi nationalize 14 banks, with a provision of minimal compensations. The decision was immediately challenged within the supreme court. In the case, R.C Cooper vs. Union of India[3],the SC struck down the Banks Nationalize Act, due to the compensation’s component of the enactment. The government then abolish Privy Purse which were payment promised to the rest by the government of India at the time of independence. In Madhav Rao Scindia vs. Union of India[4], the SC struck down the presidential order, which result to the abolition.
CONSTITUTIONAL RIGHT SAVED:
Only have to examine that the amendment that were made during emergency. The 39th amendment prohibited any challenges to the election president, vice president, speaker and the prime minister regardless of the electoral malpractice. This was the transparent plan to nullify the adverse Allahabad supreme court ruling against Gandhi. The 41st amendment prohibited any case, civil or criminal being filled against any President, vice president, prime minister, governor not only during term of office but forever. Thus, if an individual was a governor for one day, he immunity any legal proceeding of all time. If parliament were indeed supreme, these shocking amendments would become a part of the constitution. Thanks to Keshavnanda Bharati, Palkhivala and seven judges who were in the majority, India continue to be the world’s largest democracy. The soul of Nehru, Ambedkar, Patel and every one for founding father of the constitution.
The Indian government passed numerous of Constitution amendment to supersede the choice of the supreme court.
- Clauses (1) and (3) were also added to Article 368, to both restrict the scope of Article 13, also on establish the excellence between the amending power of Parliament and its legislative power.
- The Constitution (25th Amendment) Act, 1971 modified Article 31 of the Constitution, expanding the facility of the govt to accumulate personal property.
- And with the Constitution (26th Amendment) Act, 1971, Parliament nullified the choice of the Supreme Court in the Privy Purses case.
CONSOLIDATION OF THE ESSENTIAL STRUCTURE DOCTRINE:
The amount of following Keshavnanda Bharati was one where the doctrine has evolved on a case to case basis, leading to a gradual expansion of the doctrine. In Indira Gandhi vs. Raj Narain[5], a constitutional amendment to regularize Prime Minister Indira Gandhi’s election was struck down citing essential feature of democracy, rule of law, equality. In Minerva Mills vs. Union of India[6] ,the court during this case struck down the amendment on the bottom that review of parliament enactment and therefore the limitation of parliamentary power to amend constitution, were themselves a part of the essential structure of the constitution. However, it had been not until much later that SC ruled on the question of whether an addition of the Ninth schedule would make the listed statue immune from the need of not infringing on a fundamental rights.
In I Coelho vs. State of Tamil Nadu[7] ,the SC held that each one law was subject to the test of being according to fundamental rights, which are neighborhood of the essential structure.
CRITICAL ANALYSIS
The decision running into more than 700 pages has devised a solution applying which neither Parliament’s obligations are hindered & nor is there any possibility of violation of citizens’ Fundamental Right. This 13-judge bench decision corrected wrong precedents (Shankari Prasad, Sajjan Singh, Golaknath) made in the past and presented the Indian Democracy where all the institutions borne through Constitution can perform their respective obligations harmoniously. After the appliance of the decision judiciary, as given by the constitution has become final arbiter to see violation of constitutional provision. Keshavnanda Bharati reflects judiciary creativity of high order. The bulk bench’s decision to guard the element feature of the constitution was supported sound & rational reasoning. Therefore, keeping both extreme contention in its minds, the court propounded basic structure through which a parliament can bring all the specific changes needed and at equivalent time check a malicious & power greedy conglomerate of politician.
CONCLUSION
The Supreme Court reading implied limitation on Parliament’s amending power was a really bold & brave move. The Constitution of India deriving strength from national consensus and enacted within the name of “People of India” can’t be amended by a mere 2/3rd majority when actually 2/3rd majority doesn’t represent the whole populous of nation, further it should be also kept in mind that not entire population cast their respective votes generally Election. The procedure of Amendment requires the bill to pass from both the homes and Rajya Sabha doesn’t represent people of India i.e. it’s not a well-liked house therefore, it’s not entirely correct to mention that an Amendment gone by the homes actually represent “People of India”. Eminent Jurist, legendary advocate and co-counsel in Kesavananda Bharati Case, Nani Palkhiwala and therefore the seven judges at majority bench were of the opinion that through this judgment they need saved Indian democracy which our respected ancestors fought so hard for. India after over 150 years of struggle got Independence from colonial rule of Great Britain. the foremost important product of this independence was Democracy which gave folk (who were the foremost oppressed) power and rights. If, the bench had ruled otherwise, these rights and power that our respected freedom fighters fought so hard would have withered away. Therefore, this precious judgment had restored the religion of folk in Judiciary also as in Democracy. Debates and discussions on the bounds on a legislative body to amend a Constitution are neither novel nor unique. Justices Hegde and Mukherjea accepted the thought that no generation should bind the course of generations to return. Yet, opinions have differed on what values and principles should constitute the “basic structure” and, therefore, whether value judgments formed in an era of unbridled socialism are often imposed upon future generations. What the Supreme Court faced in 1973 was a struggle for supremacy. Kesavananda Bharati created a check on Parliament’s attempts to eliminate review and seek absolute power to amend the Constitution. But it also conceded to Parliament the widest latitude to institute socio-economic policies. It refused to recognize the proper to property as a basic feature of the Constitution, overruling Golak Nath and paving the way for land reforms. Prior to Kesavananda Bharati, nearly 30 Constitutional amendments had already been passed since the Constitution came into effect in 1950, and there are nearly 70 amendments since Kesavananda Bharati.[15] as compared, the us has had 27 Constitutional amendments (33 proposed, but only 27 ratified by the States) in its 230-year history. However, despite the larger number of amendments made to the Indian Constitution, the hopes and concepts of its framers remain intact and identifiable because the Constitution adopted by the Constituent Assembly in 1949. We owe this principally to the Supreme Court’s decision in Kesavananda Bharati.
Article by: Tushar Ranjan, Amity university Rajisthan
[1] Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
[2] I.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643.
[3] R.C. Cooper v. Union of India, AIR 1970 SC 564.
[4] H. H. Maharajadhiraja Madhav Rao Scindia v. Union of India, AIR 1971 SC 530.
[6] Minerva Mills v. Union of India, AIR 1981 SC 271.
[7] I.R. Coelho v. State of Tamil Nadu, AIR 2007 SC 861
[5] Indira Gandhi v. Raj Narain, AIR 1975 SC 2299.
