Published: 12th Jul, 2019
According to the Constitution, Parliament and the state legislatures in India have the power to make laws within their respective jurisdictions. This power is not absolute in nature. The Constitution vests in the judiciary, the power to adjudicate upon the constitutional validity of all laws. If a law made by Parliament or the state legislatures violates any provision of the Constitution, the Supreme Court has the power to declare such a law invalid or ultra vires. Whereas the founding fathers wanted the Constitution to be an adaptable document rather than a rigid framework for governance hence the provision of amendments were given in Article 368.
The Keshavananda Bharti case depicts the tussle between Articles 13(2) and 368.
The Kesavananda Bharati case was the culmination of a serious conflict between the judiciary and the government. It is popularly known as fundamental rights case. Under this case Supreme Court of India outlined the Basic Structure doctrine of the Constitution and it can be regarded as a second sitting of 'Constituent Assembly'. The fundamental question dealt in Kesavananda Bharati v State of Kerala is whether the power to amend the constitution is an unlimited, or there is identifiable parameters regarding powers to amend the constitution.
Background
In order to understand the famous case of Kesavananda Bharathi, one must trace through the basics, events and cases which led to the historic decision.
The Bihar Land Reforms Act, 1950 which was in contravention of then fundamental Right to Property (Article 31). It was hit by 13(3) as it was infringing Article 31 (Part III, Fundamental Rights). The Act was challenged in High Court which held the act to be unconstitutional for being violative of Article 14 of the Constitution.
Thus in order to protect and validate zamindari abolition laws, the Government made First Amendment of the Constitution of India which made several changes to the Fundamental Rights provisions of the constitution. Article 31-A and 31 B was also added. Ninth Schedule was inserted which protects any legislation inserted within the schedule, from judicial review.
Hence the buildup to Kesavananda was marked by a series of cases and decisions that set the stage for the case itself. At the core of all these cases was the basic question: Was Parliament's power to amend the Constitution unlimited, since it represented the will of the people and its majority, or was that power circumscribed when it came to certain fundamental rights of the people?
Series of cases prior to Kesavananda Bharti case are following.
1) Shankari Prasad vs. Union of India (1951)
The constitutional validity of first amendment (1951), which curtailed the right to property, was challenged. The SC ruled out that the power to amend the Constitution under Article 368 also included the power to amend fundamental rights and that the word "law" in Article 13 (8) includes only an ordinary law made in exercise of the legislative powers and does not include Constitutional amendment which is made in exercise of constituent power. Therefore, a Constitutional amendment will be valid even if it abridges or takes any of the fundamental rights.
2) Sajjan Singh V. State of Rajasthan (1965)
The validity of the 17th Amendment Act, 1964 (which changed the definition of an "estate" given in article 31A of the Constitution so as to include therein lands held under ryotwari settlement in addition to other lands in respect of which provisions are normally made in land reform enactments. The Amendment also added 44 additional State enactments relating to land reforms to the Ninth Schedule to the Constitution in order to secure their constitutional validity and prevent them from being challenged before the judiciary on the ground that they are inconsistent with any of the provisions of Part III of the Constitution relating to Fundamental Rights. This was challenged on the ground that one of the acts inserted by the amendment in the 9th Schedule affected the petitioner on the basis that the amendment fell within the purview of Article 368.
Supreme Court approved the judgment in Shankari Prasad case and held that on Article 13 (2) the case was rightly decided. Amendment includes amendment to all provisions of the Constitution.
3) Golaknath V. State of Punjab (1967)
The Hon'ble Supreme Court prospectively overruled its decision in Shankari Prasad and Sajjan Singh cases and held that Parliament had no power to amend Part III of the Constitution so as to abridge or take away any of the Fundamental Rights. It also added that Article 368 merely lays down the procedure for the purpose of amendment. Further, the Court said that an amendment is a law under Article 13(2) of the Constitution of India and if it violates any fundamental right, it may be declared void. Therefore, amendments which "take away or abridge" the Fundamental Rights provisions cannot be passed. Article 368 does not contain a power to amend the constitution but only a procedure.
To nullify the Golaknath verdict, Parliament enacted the 24th Amendment to the Constitution, laying down that its powers to amend the Constitution were unrestricted and unlimited. Finally all the issues related to it was challenged in Keshavanand Case.
The Kesavananda case (1973)
Under this Supreme Court declared 31 C as unconstitutional and invalid on the ground that judicial review is basic structure and hence cannot be taken away.
The Supreme Court reviewed the decision in Golaknath v. State of Punjab, and considered the validity of the 24th, 25th, 26th and 29th amendments.
Thus, the Supreme Court laid down the Basic Structure Doctrine in this case.
Basic structure includes:
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· Supremacy of the Constitution • Republican and democratic form of government • Secular character of the Constitution • Separation of powers between the legislature, executive and the judiciary • Federal character of the Constitution • The mandate to build a welfare state |
• Unity and integrity of the nation • Sovereignty of India • Democratic character of the polity • Unity of the country • Essential features of the individual freedoms secured to the citizens • Mandate to build a welfare state
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Ambiguity of the Judgment
Kesavananda Bharati actually left an ambigious historical legacy.
• It said that Parliament could not interfere with the basic structure of the Constitution, but left open the question of what constituted "basic structure". As to what are these basic features, the debate still continues.
• The judgment also refused to consider the right to property as a fundamental right that was covered by the 'basic structure' doctrine. Despite that, the right to private property, is more solid today, and yet not absolute, as it should be in a market economy.
• This judgment ruled that Article 368 does not enable Parliament in its constituent capacity to delegate its function of amending the Constitution to another legislature or to itself in its ordinary legislative capacity.
• The basic structure doctrine applies only to the constitutionality of amendments and not to ordinary Acts of Parliament, which must conform to the entirety of the Constitution and not just to its basic structure.
Significance
• The most significant contribution by Kesavananda Bharati judgment is the recognition of supremacy of the Constitution of India and its unalterable features.
• The Kesavananda judgment also defined the extent to which Parliament could restrict property rights, in pursuit of land reform and the redistribution of large landholdings to cultivators, overruling previous decisions that suggested that the right to property could not be restricted.
Conclusion
This case upheld the changes in 24th amendment in Article 368 and Article 13 of Indian Constitution by overruling Golaknath Judgment. It determined the fabric of Indian constitution which is still relevant and serving as Fundamental Rights case.
In a modern nation state, judiciary plays an important role of interpreting and applying the law. In a country with within constitution, the judiciary upholds the supremacy of constitutional provisions. In India, within the framework of supremacy of the constitution, parliamentary democracy and a federal set up, the judicial system is unitary in nature and presents a single integrated system of courts for the union and the states which administer both union and state laws. The Indian judiciary is like a pyramid in structure at the top of which is the Supreme Court of India. Below the Supreme Court stand High Courts of different states and below the High Court there is a hierarchy of subordinate courts. These subordinate courts are subordinate to and controlled by the High Courts.
Jurisdiction of the Supreme Court
The scope of powers of Supreme Court to hear and decide cases is called its jurisdiction. The Supreme Court has three types of jurisdictions namely original, appellate and advisory. Let us now examine the three jurisdictions.
Original Jurisdiction
There are certain cases which fall within the exclusive jurisdiction of the Supreme Court. It means that all such cases begin or originate in the Supreme Court, only. It also means that such cases cannot be initiated in any other court. The cases or disputes that come under the original jurisdiction are given below:
(i) (a) Disputes between the Government of India on the one side and one or more States on the other side.
(b) Disputes between the Government of India and one or more States on one side and one or more States on the other side.
(c) Disputes between two or more States.
(ii) The Supreme Court has been invested with special powers in the enforcement of Fundamental Rights. In this connection, it has the power to issue directions or writs.
(iii) Cases under Public Interests Litigation (PIL) can also be heard directly. (This is an extra Constitutional practice; there is no mention of PIL in the Constitution).
Appellate Jurisdiction
The power of a superior/higher court to hear and decide appeals against the judgment of a lower court is called appellate jurisdiction. The Supreme Court has vast appellate jurisdiction. It hears appeals against the judgment of the High Courts. Thus, it is the highest and the final Court of Appeal. If one of the parties to a dispute is not satisfied with the decision of the High Court, one can go to the Supreme Court and file an appeal. The appeals can be filled in Civil, Criminal and Constitutional cases.
Advisory Jurisdiction
This power implies Court’s right to give advice, if sought. Under advisory jurisdiction, the President of India may refer any question of law or public importance to Supreme Court for its advice. But the Supreme Court is not bound to give advice. In case, the advice or the opinion of the Court is sent to the President, he may or may not accept it. The advice of the Court is not binding on the President. So far, whenever the Court has given its advice, the President has always accepted it. The Court refused to give its advice on the question whether a temple existed at the spot, where Babri Masjid was built at Ayodhya.
Conclusion
The Supreme Court is primarily a court of appeal and has extensive appellate jurisdiction. Its primary function is to interpret the Constitution and declare whether or not any legislation or administrative action is unconstitutional. The Supreme Court is the final arbiter in all constitutional controversies. The law declared by the Supreme Court is binding on all courts in India, and is the law of the land.
This power is extremely wide and enables the Supreme Court to act as a check against improper exercise of jurisdiction by judicial or quasi-judicial bodies as well as maintain a uniformity of legal approach.
Supreme Court since independence has given many landmark judgments which have impact on the progress of the nation.
In the other files hereby, discussing the different landmark judgments.
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