Kesavananda Bharati v. State of Kerala[1] is a landmark decision that changed the constitutional history of India for two major reasons. Firstly, when the Golak Nath case incapacitated the Indian Parliament to amend Part III of the Constitution, this case instilled them with the power to do so. It however, limited the scope of the legislative authority by introducing the Basic Structure Doctrine.

Secondly, it rejected the provision on judicial review that was included in the Twenty Fifth Amendment of the Constitution of India in 1971. Alternatively called the Fundamental Rights Case, Kesavananda Bharati proved to be the savior of Indian democracy. This comment aims at analyzing the infamous conflict between the legislature and judiciary and the role of the case in attaining constitutional harmony. It also argues against the codification of the Basic Structure Doctrine and contends why the Supreme Court was right in leaving the doctrine open to judicial interpretation.

Background
India has repeatedly witnessed clashes between its supreme democratic institutions, the early 1970's face-off between the Judiciary and the Legislature[2] was one of the most famous and important, as it resulted in the landmark judgement of Keshwanand Bharti v. State of Kerela.

The supreme court in Keshwanand Bharti Vs. State of Kerela, took near to 5 months to arrive to a judgment, which was extremely helpful in determining the powers of all the three branches of the government. The popularity of this judgment also rose because it was almost 800 pages long and contained about 450k words.

The importance of this judgment can be understood with the fact that one of its main function was of preserving the dignity and integrity of the constitution, the creativity of this judgment is so paramount that the basic structure Doctrine given by this judgment had set the benchmark for courts all around the world, in the matters of the constitution. In order to understand and analyse Keshwanand Bharti Vs. State of Kerela, we need to briefly understand the flurry of cases that came before it.

Conservative Approach of the Supreme Court in Shankari Prasad and Sajjan Singh
Right to property, which was a fundamental right, gave rise to a lot of questions in the Indian Constitution. Agrarian land reform laws were introduced soon after the Constitution was enacted in Uttar Pradesh, Madhya Pradesh, and Bihar.

After the laws came into force, the Zamindars who were deprived of huge parts of their land filed petitions in various high courts claiming that their fundamental rights were violated. The Constituent Assembly (operating as the Interim Parliament) passed the Constitution (First Amendment) Act, 1951, after the Bihar Land Reforms Act, 1950 was upheld by the Patna High Court in 1951. Two clauses were incorporated by this amendment which protected land reform laws from judicial review[3]. One of those clauses introduced 9th Schedule to Article 31B. Under the 9th Schedule, no laws can be questioned for being inconsistent with fundamental rights[4].

In the case of Sankari Prasad v. Union of India[5], the amendment was challenged by the Zamindars. One of the many reasons was that not only ordinary laws but also amendments were included in the term 'rule' under Article 13(2), which prevents the Parliament from creating any laws that take away fundamental rights. If the courts agreed to this, it would have meant that the Parliament can never amend Part III of the Constitution. However, this was dismissed by the Supreme Court's five-judge bench, arguing that this makes a distinction among the ordinary laws and the constitutional laws. It was thus held that the courts cannot review the constitutional amendments.

The validity of the 1964 Act (17 Amendment), which includes 44 statutes in the 9th Schedule, was questioned in the case of Sajjan Singh v. Rajasthan[6]. Contrary to the case of Shankari Prasad, this case did not challenge the rights of Parliament to amend the fundamental rights. Rather, this case brought into question, the inability of the Parliament to obey the process of amending the Constitution.

This petition was also rejected by the judges, as in the event of Shankari Prasad. But while three judges decided that there will be no amendment to the fundamental rights, J. Janardan Raghunath Mudholkar and J. Mohammad Hidayatullah questioned whether Shankari Prasad' s views were true that a constitutional amendment was not 'law' pursuant to Article13(2) of the Constitution and that the court therefore cannot review it. Also, in the reference to the intention of the Constitutional Assembly to make the basic structure of the Constitution permanent, Justice Mudholkar also referred to the basic doctrine of structure in Kesavananda, saying that whether the basic structure can simply be regarded as re-drafting the parts of the constitution or as an amendment[7].

Golak Nath v. State of Punjab
Golak Nath v. State of Punjab[8] raised the issue on whether the parliament has right to amend the fundamental rights of citizens. Under state land reform laws, the landlords stripped of their surplus landholdings questioned the constitutionality of the First, Fourth, and Seventeenth Amendments[9].

The issue now was whether the Legislature had rights to ament or infringe the fundamental rights and if these same amendments were open for examination by the courts, an eleven-judge bench was set up by the Supreme Court to see into this matter. The Supreme Court ruled, by a slim majority of 6:5, that the difference between the power of the constituent and the power of a legislative that was set out in the case of Shankari Prasad had been baseless.

They made clear to the Parliament that even if the resolution for the amendment had been passed with a mass majority, it would not be sufficient if they violated the fundamental rights given to the citizens of this country. Fundamental rights are of paramount importance and amendments fell under the purview of �law� under Article 32 of the constitution.

The court recognized that it would lead to disorder, uncertainty, and severe disparities to extend this judgment around the nation to earlier constitutional amendments, even though the court believed that fundamental rights are inviolable. It then agreed to use the American 'prospective overruling' principle, on the basis of which it could extend its verdict to unconstitutional amendments. Therefore the plaintiffs in Golak Nath obtained no relief, however the phrases of the Kesavananda case,' gave the court some assurance that their predecessors would make good into codifying the "basic structure".

The Supreme court based their entire arguments based on political philosophy, for the first time in the case of Golaknath. The Golaknath judgment rarely received total acceptance from the legal point of view, some of the countries major legal experts were against the supreme court's judgment. Academic studies and public sentiment were also moved against the contention of the Supreme Court[10].

After passing the Twenty-fourth Amendment Act, 1971 and adding Article 13(4) to specifically exempt constitutional amendments from the scope of Article 13, the Parliament tried to address the issue of whether constitutional amendments constitute as 'law' under Article 13. By this amendment, the parliament made sure that the constitutional amendments are out of the court's jurisdiction to review even if they violate the fundamental rights of citizens(article 13(4)) and discredited the Supreme court's judgment of Golaknath.

Kesavananda Bharati: Analysis
The Kerala Land Reforms Act, 1963 had begun to affect the property of several religious institutions in India including the one of the religious math headed by Swami Kesavananda Bharati.[11] This led to him challenging the land reforms of Kerala in 1970. Whilst the proceedings were still running in the court, the Twenty ninth Amendment Act, 1972 was passed by the Parliament.

This Act went on to include some of the land reforms into the Ninth Schedule, further increasing the challenges faced by religious institutions. Henceforth, the constitutional validity of the amendment along with that of twenty fourth and twenty fifth amendments was challenged by Kesavananda Bharati and his counsel Nani Palkhivala.

The twenty fourth amendment passed in 1971 in order to quash the Golaknath case, stated that constitutional amendments were not considered law under the scope of Article 13. This amendment gave unlimited power to the Parliament to amend or repeal any part of the Constitution of India. The twenty fifth amendment was passed in 1971 itself.

It had granted Articles 39(b) and (c) of Directive Principles of State Policy, primacy over Fundamental rights including the rights to equality, freedom and property. It also hindered the court's power to judicial review. The twenty ninth amendment brought in 1972, inserted two land reform provisions into the Ninth Schedule.

The case filed by Kesavananda Bharati made the Supreme Court re-evaluate its judgments given in the previous cases of Shankari Prasad, Sajjan Singh and Golak Nath respectively. The main issue in front of the court was determining the scope of Parliament's amending power under Article 368. It had to decide if the power of the Parliament was unfettered or if the court could uphold its power of judicial review.

Petitioners in the case claimed that the three amendments violated those prime principles of the Constitution that were the pillars of Indian democracy. They contended that the legislature was not authorized to modify those provisions by drawing power from the Constitution itself. The legislature, on the contrary, argued that Article 368 granted them an unlimited power to amend. The onus of examining the power of the Parliament and thereby determining the constitutional validity of the disputed amendments now lied upon the Supreme Court[12].

After putting forward the opinions of the majority, the court concluded that all the amendments stood valid except for the judicial review clause in the twenty fifth amendment. The Golak Nath judgment was overruled and the scope of Article 368 was explained. The Supreme Court of India then introduced the Basic Structure Doctrine that was decided with a majority of 7:6 judges.

As per the doctrine, the Parliament had the power to amend any part of the Constitution including Part III, but it was not in the capacity of using this power to amend the basic structure of the Constitution. The Supreme Court made use of a teleological approach to protect the identity and framework of the Constitution. It was thereby decided that any future amendments after the case would have to abide by the basic structure doctrine. The power to judge the constitutionality of those amendments and determining the elements of the basic structure was left to the court itself.

Each judge in the panel gave their opinion on what must be included in the basic structure. Apart from the fact the opinion was not exhaustive, each judge had their own say. Justice Sikri, the Chief Justice of India mentioned the following features:

• Supremacy of the Constitution
• Secular character of the Constitution
• Republican and democratic form of government
• Separation of powers among the legislature, judiciary and executive
• Federal character of the Constitution
   

In addition to the above list, the other judges including Justice Shelat, Justice Grover, Justice Hegde, Justice Mukherjea and Justice Reddy included the following essentials:

• Securing the dignity of an individual granted by the Fundamental rights and the duty to construct a welfare state as stated by the Directive Principles of State Policy
• Maintaining the unity and integrity of the nation
• Sovereignty of the nation
• Securing individual freedom
• Building an egalitarian society
• Parliamentary Democracy

Although the court was not unanimous in bringing forward a fixed basic structure, it made evident its intent, which is, protecting the spirit of Indian democracy.
Although the decision of Supreme Court in the Golak Nath case was the first major sign of supremacy of judiciary, it was Kesavananda Bharati that strongly founded that, when it came to constitutional matters, the Supreme Court was unprecedented in authority.

The Supreme Court made a strategic withdrawal in Kesavananda Bharati over fundamental rights amendments, but it greatly extended the scope of its judicial review by claiming the authority to evaluate all constitutional amendments, and not only those that concerned fundamental rights.

The Supreme Court now had a co-extensive authority to review and refute any amendment that violated the fundamental structure of the Constitution as a limitation to the Parliament's unrestricted right to amend the Constitution. To a certain degree, the judges who recognized the theory of basic structure in Kesavananda Bharati wanted a win scenario for the Parliament as well as the Supreme Court to achieve.

The difference between drafting and functioning of the Constitution was recognized in Kesavananda Bharati. The case analysed if it was possible to practically restructure the Constitution on the pretense of allowing amendments to the Constitution by representatives whose amending power was unrestrained. This is important for matters where the standpoint of the legislature was anti-majoritarian and where the decisions of the people's representatives did not reflect the will of the people.

The Supreme Court analysed if the government could reframe the Constitution in a manner that contradicts the primary features and principles of the nation under the veil of amendments. These primary features include democracy and independence of judiciary, the scope of which was already curtailed by the Parliament in its previous amendments. The Supreme Court, by restricting this power of the legislature, made sure that the elected representatives of the people continue to serve the people and not rule them instead[13].

While deciding Kesavananda Bharati, the Supreme Court ensured that the constituent power of the legislature was co extensive with the citizens. It prevented the future chances of totalitarian governance, sharp socialist directions, military coups or any other form of dictatorial rule by extra constitutional means. In both Kesavananda Bharati and Golak Nath, the judges had taken pre empted for achieving certain predetermined results. In order to prevent the Parliament from subverting the Indian democracy, they used legal means to make the ends meet.

Justice Hegde and Justice Mukherjea stated that no single generation could bind the course for the future generations. However, in Kesavananda Bharati, that is exactly what the Supreme Court had done. It declared that a few parts of the constitution bound the succeeding parliaments till eternity.

Nevertheless, the determining power as to what constitutes as basic lies with the apex court, the interpretation of which is liquid, owing to its perpetuity and indissolubility. The apex court has been granted the custody of the Constitution by asserting its supremacy in the sphere of interpreting the Constitution[14].

The judgment has been criticized by many academics for introducing the basic structure doctrine when there was no mention of it in the Constitution. Many have argued that since the doctrine has been used as a tool for statutory interpretation, it should have been codified for further reference. However, codifying the doctrine would not have left it open to interpretation for unforeseen and unprecedented times, thereby hampering the sole purpose of the doctrine itself.

The codification of the doctrine could result in the legislature substituting or altering it which in turn, could lead to destroying the purpose of its existence. The Parliament, to ensure its supremacy, might curtail the scope of the doctrine and increase its amending power. The doctrine would then act as a mere constitutional veil under which the legislature could practice its dominance.

The concept of codification of the basic structure would not give the desired result in India due to its Parliamentary structure. If codified, the doctrine might be amended by the party attaining majority in both the houses in any manner under light of Article 368. Codification could even result in the doctrine getting abolished thereby turning the constitutional power of the legislature into Constituent power.

The court's power to judicial review might be repealed. Since there would be no end to the Parliament's power on altering or abolishing the doctrine, the judiciary could be made powerless and the Constitution could be open to exploitation[15]. The idea of a democratic India does not favor political ideologies deciding its Constitutional structure.

Even if the doctrine was codified and made unalterable by the Legislature, it would result in a coercive decision been made for the successive parliaments. The future generations would then be bound to abide by the provisions created in the past without leaving scope for alteration as per future needs.

One can never predict what the future might bring. An amendment may be required in the fundamental principles in any unforeseen situation. Laws might need to be constructed and deconstructed for perusal of justice. Therefore, a feature such as the basic structure of the Constitution cannot be fully predetermined. It must be left open to the liberal interpretation of the courts as per the need of the hour.

Conclusion
The judgment has been criticized for being too lengthy and lacking uniformity due to the contradictory opinions of the judges. It must be noted that the bench who decided the case constituted of thirteen judges with different opinions and yet managed to obtain a seven judge majority. This case comment has analyzed the procedural history of the case and the cases that led to the filing of the suit.

The cases of Sankari Prasad, Sajjan Singh and Golak Nath are briefly addressed and their role in reaching the end is established. The comment also points out how the court was correct in not defining or codifying the basic structure doctrine Kesavananda Bharati. It also states how the case rightly upheld the court's power to judicial review after the release of the Twenty Fifth Amendment of 1971.

End-Notes:

1. Kesavananda Bharati vs State Of Kerala And Anr [1973] Supreme Court of India
2. Submit Article and others, 'Case Brief On Kesavananda Bharati V. State Of Kerala (1973)' (iPleaders, 2020) accessed 15 December 2020
3. Ayushi Modi and Rohan Upadhyay, 'Supreme Court Case Analysis:
   Kesavananda Bharati V. State Of Kerala By: Ayushi Modi And Rohan Upadhyay' (Latest Laws, 2018) accessed 15 December 2020.
4. Submit Article and others, 'Doctrine Of Basic Structure - Evolution - First Stage - Second Stage' (iPleaders, 2020) accessed 13 December 2020.
5. Sri Sankari Prasad Singh Deo vs Union of India [1951] The Supreme Court of India, 1951 AIR 458, 1952 SCR 89
6. Sajjan Singh vs State Of Rajasthan(With on 30 October, 1964 [1965] Supreme Court of India, 933
7. English News, 'Why Kesavananda Bharati Vs State Of Kerala Case Is Considered Landmark In India's Independent History' (Indiatvnews.com, 2020)
8. https://www.indiatvnews.com/fyi/what-is-kesavananda-bharati-case-vs-state-of-kerala-basic-structure-constitution-fundamental-rights-647544 accessed 15 December 2020.
9. I C Golaknath & Ors vs State Of Punjab & Anrs(With on 27 February, 1967 [1967] Supreme Court of India, 762
10. Analysis Of The Amenability Of The Preamble - Ipleaders' (iPleaders, 2020) accessed 15 December 2020
11. Zia Mody, 10 Judgements That Changed India (Penguin 2013).
12. Zia Mody, 10 Judgements That Changed India (Penguin 2013).
13. Dr. Aman Ullah, 'Basic Structure Of Constitution: Impact Of Kesavananda Bharati On Constitutional Status Of Fundamental Rights' (2020).
14. Virendra Kumar, 'Basic Structure Of The Indian Constitution: Doctrine Of Constitutionally Controlled Governance [From Kesavananda Bharati To I.R. Coelho]' (jstor).
15. Ms. Ankita Singhania, 'Constitutional Law On Judicial Review And Judicial Accountability- Indian Experience' (manupatra, 2020) accessed 15 December 2020.
16. Rishabh Jain, 'The Uncodified Basic Structure Doctrine: Bearer Of The Constitution' (Manupatrafast.com) accessed 15 December 2020.

Written By:

1. Pragya Nagpal
2. Shashank Tomar