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Who was Kesvananda Bharati and how was he associated with the ‘Basic Structure’ doctrine?

  • Published
    13th Jan, 2023

The recent statement by Vice President has slammed the Supreme Court’s landmark 1973 judgement in the Kesavananda Bharati case in which it ruled that Parliament had the authority to amend the Constitution but not its basic structure.

What does the Basic Structure mean?

  • The Constitution of India defines its 'basic structure' in terms of federalism, secularism, fundamental rights and democracy.
  • The Constitution of India provides for 'judicial review' to safeguard the citizens' liberties and to preserve the ideals on which the Constitution is based.

Who was Kesvananda Bharti?

  • He was a monk from Adi Shankaracharya’s tradition born in 1940.
  • Kesavananda Bharati took sanyas at the age of 19 and headed to the Edneer Mutt, a Hindu monastery in Kasargod, Kerala.
  • In 1961, still only 21, he was appointed as the head of the Mutt, a position he held till his death in 2020.

The Edneer Mutt is believed to have been established by Totakacharya, one of four original disciples of Adi Shankaracharya (credited to have synthesised the non-dualistic philosophy of Advaita Vedanta.)

  • He fought against the Kerala government’s land reforms and aims when he took the Kerala government to court in February 1970.
  • Rather, he was challenging the 1969 Land Reforms enacted by the communist C. Achuta Menon government which had affected his Mutt. Under the reforms, Edneer Mutt lost a large chunk of its property, which contributed to its financial woes.
  • Filing a writ petition in the Supreme Court, Kesavananda Bharati argued, that this action violated his fundamental rights – in particular, his fundamental right to religion (Article 25), freedom of religious denomination (Article 26), and right to property (Article 31).

Evolution of Kesvananda Bharti case:

  • Parliament's authority to amend the Constitution, particularly the chapter on the fundamental rights of citizens, was challenged as early as 1951.
  • After independence, several laws were enacted in the states with the aim of reforming land ownership and tenancy structures.
  • This was in keeping with the implementation of the socialistic goals of the Constitution [contained in Article 39(b) and (c) of the Directive Principles of State Policy] that required equitable distribution of resources of production among all citizens and prevention of concentration of wealth in the hands of a few.
  • Parliament added the Ninth Schedule to the Constitution through the very first amendment in 1951 as a means of immunising certain laws against judicial review.
  • Under the provisions of Article 31, which themselves were amended several times later, laws placed in the Ninth Schedule -- pertaining to the acquisition of private property and compensation payable for such acquisition -- cannot be challenged in a court of law on the ground that they violated the fundamental rights of citizens.
  • The Ninth Schedule was created with the primary objective of preventing the judiciary - which upheld the citizens' right to property on several occasions - from derailing the Congress party-led government's agenda for a social revolution.

Article 13 (2) provides for the protection of the fundamental rights of the citizen.

  • Parliament and the state legislatures are clearly prohibited from making laws that may take away or abridge the fundamental rights guaranteed to the citizen.
  • They argued that any amendment to the Constitution had the status of the law as understood by Article 13 (2).

What does the case exactly say?

  • Constituent power is superior to ordinary legislative power:
    • Unlike the British Parliament which is a sovereign body (in the absence of a written constitution), the powers and functions of the Indian Parliament and State legislatures are subject to limitations laid down in the Constitution.
    • The Constitution does not contain all the laws that govern the country. Parliament and the state legislatures make laws from time to time on various subjects, within their respective jurisdictions.
    • The general framework for making these laws is provided by the Constitution.
    • Parliament alone is given the power to make changes to this framework under Article 368.
    • Unlike ordinary laws, amendments to constitutional provisions require a special majority vote in Parliament.
  • The difference between Parliament's constituent power and law-making powers:
    • According to Article 21 of the Constitution, no person in the country may be deprived of his life or personal liberty except according to a procedure established by law.
    • Parliament and the state legislatures make the necessary laws identifying offensive activities for which a person may be imprisoned or sentenced to death.
    • Changes to these laws may be incorporated by a simple majority vote in the concerned state legislature.
    • There is no need to amend the Constitution in order to incorporate changes to these laws.
    • However, if there is a demand to convert Article 21 into the fundamental right to life by abolishing the death penalty, the Constitution may have to be suitably amended by Parliament using its constituent power.
  • Declared that Parliament's constituent power was subject to inherent limitations:
    • The Parliament could not use its amending powers under Article 368 to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or framework of the Constitution.
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