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This article has been written by Satyajit Pattanaik and has been edited by Khushi Sharma (Trainee Associate, Blog iPleaders)

Introduction 

“There could be no place for a child safer than the lap of its mother surrounded by her very Aanchal, and there could be no place for the Indian constitution safer than being in the lap of the Judiciary covered with the shield of its Doctrine of Basic Structure.” 

The evolution of basic structure doctrine in the case of Kesavananda Bharati v. the State of Kerala (1973) is considered to be one of the sustainable contributions to the Global Constitutional Jurisprudence by the Indian Judiciary through Judicial Activism.  Amidst the tussle of power between two prominent organs of the state, namely; the legislature and the Judiciary, the decision of the Supreme court in the Kesavananda case played a determinable role in establishing a balance between these two powerful organs. The contributions of three eminent personalities namely, Justice H.R Khanna, Adv. Nani Palkhivala and German Professor Dietrich Conrad played a sacrosanct role in the evolution of the said doctrine which has made Constitutionalism in India sustainable. 

The Judicial activism reflected in the case of Kesavananda Bharati v. State of Kerala (1973) is considered to be one of the greatest contributions of the Indian Judiciary to the global constitutional jurisprudence. Being the case decided by the largest bench of the Indian Supreme Court, it’s prudent analysis, it’s foresight for the prospective contingencies along with the risk pertaining to the emasculation of the very constitutional ethos, and coming with a sustainable panacea for the same will keep enlightening the prospective legal scholars. 

Kesavananda Bharati breathed his last on the 6th of September, 2020. The litigation carried by his name played a sacrosanct role in keeping the Indian Constitutional democracy alive. This article discusses the aforesaid. 

The Indian Constitution and its development

In the early 70s, the Indian Constitution was going through a sensitive time as it had to witness serial developments in it. At that time the case of Kesavananda Bharati v. State of Kerala (1973) played a determinable role. Apart from Kesavananda himself, there were three people whose contributions were worth admiring, they were namely; his highness Justice H.R Khanna, Eminent Lawyer Nani Palkhivala and German Professor Dietrich Conrad. 

In a Constitutional Democracy, the Constitution holds the position of supremacy and here, the existence of “Constitutionalism” is sacrosanct. Constitutionalism denotes the concept of Limited government as it believes in the fact that unlimited power of the government jeopardizes the life, liberty and property of an individual.  

The legislature, executive and the judiciary are emanated from the Constitution. By virtue of the Doctrine of Separation of Power and Doctrine of Checks and Balances, there exists a sensitive balance between these three organs. Each organ functions by staying within its own limit. The popular government i.e. the government with the majority of the support acquires the ruling position through an election in consonance with the democratic principles. During its tenure, the concerned leaders being the executive heads of respective ministries, by virtue of the huge public support and their majority in the legislature, they do whatever they want; they can make and implement any law and if any law impedes the Constitution then they may alter it accordingly.

Let’s take two examples. Firstly, the American Constitution. The American Constitution was drafted in the year 1787 and it came into force in the year 1789. Apart from the Preamble, it contains 7 (seven) sections in total. Till 1992 there were 27 (twenty-seven) amendments made to the American Constitution. American Constitution is considered to be rigid, hence bringing an amendment in it is a herculean task. Since its inception, the American Constitution contained no provision pertaining to Judicial Review (Reassessment of laws i.e. the executive orders and its decisions by the Judiciary). In the year 1803, through its decision in the landmark case of Marbury v. Medison (1803), introduced the system of Judicial Review. By using the power of Judicial Review the court can scrutinise the constitutionality of legislation or other executive orders. This principle is considered to be a kind of shield against the arbitrary actions of the government. 

The second example is Germany. During the period of 1919 to 1949, the Weimar Constitution was in force. This Constitution contained provisions through which an amendment could be brought by the method of voting of more than two-thirds majority of the legislature. This Constitution was considered to be flexible. The position behind this was that there must be procedures for the amendment to the Constitution in the larger public interest. 

Negative repercussions of the developments

Let’s discuss the negative repercussions of the aforesaid. In the year 1934, Adolf Hitler was elected in accordance with the Constitution and became the President, Chancellor and head of the Army by practicing malicious tactics with the help of the Nazis. But after coming into power he made the Weimar Constitution all dead by allowing the government to make law without the consent of the Parliament and hence, became a dictator. 

This article has discussed the aforesaid concepts in line with the provisions of the Indian Constitution and the judicial activism of the Indian Judiciary. The system of Judicial Review does exist in the Indian Constitution. Indian constitution being a derivative constitution, it has borrowed the concept of Judicial Review from the American Constitution. This concept has been embedded in many provisions of the Constitution of India, viz, Article-13 of the same.  

The Constitution of India envisages specific provisions for amendment and the appropriate provision is Article- 368. According to clause (2) of Article 368, sometimes support of 2/3rd of the members present and voting will suffice and sometimes, in addition to that majority the concept of 1/2 of the States is needed. While making amendments the provisions like Article 13 and 9th schedule are to be given paramount consideration. Article- 13 envisages that the law contravening the fundamental rights under Part- III are to be declared void and if legislation is listed in the 9th schedule of the Constitution, it is insulated from the realm of Judicial Review. (Art. 31-B of the Indian Constitution)

The land acquisition legislation abridging the then Right to Property of the citizens shortly after the Constitution coming into force and the enactment of some socialist laws in the 70s, such as the bank nationalization incident etc. which warranted the institution of a plethora of petitions before the judiciary retaliating these laws and subsequently the main issue cropped up as to; what is the amending power of the Parliament under the Constitution? Is this limitless? Are the opinions of the parliamentarians correct or the opinions of the fistful judges correct? 

The decision of I.C. Golak Nath v. State of Punjab (1965) came in 1967. In this judgment, the Hon’ble Supreme Court opined that the Fundamental Rights cannot be abrogated and considered the Fundamental Rights to be so sacrosanct and transcendental that even the unanimous votes of the members of the parliament would not be sufficient to emasculate their significance. However, the government, later on, tried to unarm the decision of Golak Nath. According to the amendments (i.e. first, fourth and seventeenth amendment introduced in the year 1951, 1955 and 1964 respectively) challenged in the Golak Nath Case (1965), the parliament could bring an amendment to any of the provisions of the Constitution. 

Subsequently, the Kesavanada Bharati case (1973) came into the picture. 

Background of the case 

Swami Kesavananda took birth on 9th December in the year 1940. He happened to be a priest of the Ednir Math of Kerala province. The concerned government by using the Kerala Land reforms Act, 1963 (Amended in 1969) tried to convert the property of the math into state acquired Property. The priest Swami Kesavananda by going against this attempt knocked on the door of the court. This case was concluded with a historical transformation.

There were basically two questions: What is the amending power of the parliament? What is the significance of Judicial review in the constitutional amendment and to what extent? 

For hearing up the matter a large bench of 13 (thirteen) judges was constituted. The bench was headed by Chief Justice A.K Sikri. The hearing was continued for a long period of 68 (sixty-eight) days. On both sides, there were teams of experts. Adv. Nani Palkivala was the head of the council for Kesavananda and the opposite side was headed by the then Advocate General of Bombay H.M Seervai and the then Attorney general of India Mr. Niran Dey. Mr. Nani Palkivala argued for 31 days and Mr. Seervai argued for 21 days. Both were from the Parsi community and were from Bombay. Both were experts of Constitutional law. Mr. Nani Palkivala in his arguments was repeatedly putting the examples of the Weimar Constitution, Adolf Hitler and the experiences of Germany. And for this, he had to face a lot of questions put by the bench. Palkiwala presented a special theory in his argument. And the special theory was the “Doctrine of Implied Limitation.” This doctrine was invented by German Professor Dietrich Conrad. Professor Dietrich Conrad out of his experience concluded that by harnessing the limitless power enshrined in the German Constitution, how Adolf Hitler had destroyed the entire Constitution. Prof. Conrad stated the fact that the Parliament and the Prime minister are the product of the Constitution and there exists an implied limitation in the amending power of the Indian Constitution. The power of amendment can never alter the very edifice of the Constitution by crossing the implied limit. 

Professor Conrad (1939-2001) was a professor of the law department of South Asian Institute. In the year 1965, Prof. Conrad on account of the Banaras Hindu University delivered a speech on the implied limitation of the amending power. In his speech he threw light on the German Experience and Article 368 of the Indian Constitution.

Basing upon these principles, Mr. Palkivala (1920-2002) argued that the parliament does have the power to amend the Constitution but it cannot alter the very basic structure of the Constitution. In the end, the Hon’ble Supreme Court came with its decision on 24th April 1973. 

This day was the last day of service for the then Chief Justice A.K Sikri. In that decision 7 (seven) Judges were on different sides and 6 (six) judges were on another side, which means it happened to be a 7:6. In this decision there were two principles laid down, those were namely;

  1. The Legislature can alter any part of the constitution. (Golak Nath Overruled)
  2. The Supreme Court by accepting the principles of Implied limitation declared the basic structure of the Constitution which cannot be emasculated by way of amendment. 

Hence basing upon the “Doctrine of Implied Limitation,” the “Doctrine of Basic Structure of the Constitution” was evolved and concretized. According to this Doctrine, the legislature can amend any part of the Constitution without touching its basic structure. Because of this decision, the amending power of the legislature remained intact and the power of the Judiciary with regard to the power of  Judicial Review remained uninterrupted.  So the legislature can amend the constitution, but whether it is affecting the basic structure of the Constitution or not is to be determined solely by the Judiciary.  Hence checks and balances have to be established between the legislature and the executive on one side and the Judiciary on the other. This became a historic decision and is still persisting.

This decision has another dramatic side too. We saw the 7:6 ratio. However, in reality, Justice H.R. Khanna (1912-2008) gave this matter a considerable turn. Interestingly, at the end of his decision, he emphatically opined that the emasculation of the basic structure is not at all included in the amending power of the constitution. 

Just Imagine, if Justice H.R Khanna had not stated this opinion in the end, then what could have been the repercussions! If we go for a close analysis of the decision of J. Khanna, then, it can be found that he is the one who executed the Doctrine of Implied Limitation on the power of the legislature in amending the very fundamental law of the land. Hence, in the end, his opinion created history. 

Another fascinating fact was that Priest Kesavananda had never met Mr. Pakliwala and he was quite astonished by seeing his name in the Newspaper time and again.

Conclusion

Let us come to the conclusion. It was concretized that in the Indian constitutional system the Constitution is supreme. Besides, it was also concretized that the legislature has the power of amendment and at the same time the judiciary is also strong enough with its power of judicial review. Nevertheless, the basic structure of the Indian Constitution is not changeable. The decision went in a direction to preserve the constitutional democracy in our country so also the ‘Constitutionalism’ by limiting the amending power of the legislature.  The decision also sensitized the popular and influential political leaders not to get converted into dictators. Prof. Conrad, Prominent lawyer Mr. Palkiwala and Justice Khanna had already departed to heaven and in the end, Swami Kesavananda also left this world in the year 2020. It goes without saying that the former trio must have paid a grand welcome to Swami Kesavanada and thanked him for his contribution and role in keeping constitutional democracy and constitutionalism alive and sustainable. Heartfelt greetings to all the four veterans for their prudent and unquestionable contribution to the Global Constitutional Jurisprudence and for showing the very path to make the concept of Constitutionalism sustainable expansion.


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