It Took A Monk To Save A Democracy

The passing away of a seer on 06 September 2020 in Kasaragod, Kerala made many legal luminaries and assiduous citizens essay a journey down memory lane recalling the time when the Indian Constitution was salvaged from the brink of a catastrophe. The Indian citizenry was lucky to retain its protective shield against alleged vagaries of the state by a ruling of the apex court with a wafer-thin margin of 7 to 6 and thereby hangs a tale.

Swami Kesavananda Bharati, head of Edneer Matha in village Edneer, Kasaragod district of Kerala had teamed up with Shri Nanabhoy Palkhivala, Senior Jurist in February 1970 to challenge the Kerala government which had passed laws to impose restrictions on the management of certain properties under two land reform acts. The petition filed in the Supreme Court of India, went through a record hearing of 68 days by a constitution bench of 13 judges. The judgment which was instantly hailed as a landmark also managed to split the bench in half, as such the holding of a single judge tilted the scale for a majority judgment of 7 to 6. It was the culmination of a war of sorts between the Legislature and the Judiciary. Pitted against the powers of the parliament to make laws and amend the constitution if necessary to meet its ends was the authority of the Supreme Court to interpret such amendments. It was a struggle between the power of the elected representatives and the rights of individuals. At this point, lets us remember, there is a fine distinction between the two kinds of functions performed by the Indian Parliament. The Parliament can make laws for the country by exercising its legislative power and it can amend the Constitution by exercising its constituent power.

In order to understand the import of the judgment in Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr., AIR 1973 SC 1461, one needs to go back to another important judgment given by the Supreme Court in C. Golaknath & Ors v. State Of Punjab & Anr., 1967 AIR 1643. In the Golaknath case, a family had challenged Punjab Security and Land Tenures Act under which a part of their land holding was declared surplus. So, in both the cases we find that land amendments were challenged and therein emanated issues whether the Legislature can amend laws and to what extent. The obvious challenge was about the restrictions being imposed on the fundamental rights and to what extent these rights guaranteed by the constitution could be amended. The judgment in Golaknath’s case reversed Supreme Court’s earlier decision which upheld Parliament’s power to amend all parts of the Constitution, including Part III related to Fundamental Rights. This judgment left the Parliament with no power to curtail the fundamental rights. However, the judgment also introduced the concept of Prospective Overruling. In order to avoid the chaos which would ensue if the amendments already made were not allowed to pass, it was ordained that the judgment will not impact amendments already made but hence forth the Parliament was debarred from making amendments which were to take away or abridge the fundamental rights. After Golaknath v. State of Punjab judgment, Parliament passed amendments to nullify what had been decided in Golaknath. The Government passed 24th Amendment in 1971, 25th Amendment in 1972 & 29th Amendment in 1972.

These amendments were aimed at saving the State amendments from being challenged in courts of law. The validity of 24th, 25th, & 29th Constitutional Amendments was also challenged along with the provisions of Kerala land reform act in the Kesavananda Bharati Case. The petitioner contended that the Parliament’s power to amend the Constitution is limited and restricted thus his Fundamental Right to Property was violated by the enactment of 24th & 25th amendment of the Constitution. Further, the features of freedom can wither away if not protected from the Parliament’s actions. State however, contended that the power of the parliament with respect to amending the Constitution is absolute, unlimited and unfettered. This argument of state was based on the basic principle of Indian Legal System i.e., Supremacy of Parliament. Moreover, to fulfil the socio-economic obligations guaranteed to the citizens by the union in Preamble of the Constitution, no limitation upon the authority of the Parliament should be there.

The Supreme Court In the Kesavnananda Bharati case reviewed the Golakhnath Case; the Court was of the view that Parliament has the power to amend the fundamental rights. However, the Court affirmed another proposition which had been asserted in the Golaknath case, that the expression “amendment” of the Constitution in article 368 means any addition or change in any of the provisions of the Constitution. This had to be  within the broad contours of the Preamble and the Constitution in order to carry out the objectives in the Preamble and the Directive Principles. Applied to fundamental rights, while fundamental rights cannot be abrogated, reasonable abridgement of fundamental rights could be affected in the public interest. The most important  concept to emanate out of the judgment was  that of ‘Basic Structure’ of the Constitution which gained recognition in the majority verdict. The Apex Court ruled that every provision of the Constitution can be amended provided the basic foundation and structure of the Constitution remains the same. This Basic Structure doctrine is one of the most important principle of the constitutional law of India.  It was Justice, H R Khanna  who in his judgment stated that the Parliament had full power to amend the Constitution, however, since it is only a ‘power to amend,’ the basic structure or framework of the structure should remain intact. According to him, although it was permissible for the Parliament to effect changes, in the exercise of its amending power so as to meet the requirements of changing conditions, it was not permissible to touch the foundation or to alter the basic institutional pattern. Therefore, the words ‘amendment of the Constitution’ in spite of the width of their sweep and in spite of their amplitude, could not have the effect of empowering the Parliament to destroy or abrogate the basic structure or framework of the Constitution. The court did not define the ‘basic structure’, and only listed a few principles — federalism, secularism, democracy — as being its part. Since then, the court has been adding new features to this concept. There were attempts to review this Judgment and in 1975 a 13 Judge Bench had also been constituted to look into the review of this Judgment, however  it was dissolved later.

One shall have to pardon the common man of India who is not that well educated and may have very scant knowledge of his rights, for not attaching much importance to Shri Kesavananda Bharati ji and the Supreme Court of India. Most erudite citizens nevertheless believe that this judgment, on its own, may have saved Indian democracy for a path of disaster. Well, the most important product of our independence is democracy. It is democracy which guarantees the oppressed common man, power and rights. If the Supreme Court bench had ruled otherwise, these rights and power for which our freedom fighters had so valiantly fought, would have withered away. This momentous judgment restored the faith of citizenry in Judiciary as well as Democracy and deserves highest appreciation and reverence. The great seer, musician and social worker, Shri Kesavananda Bharati ji has given all Indians a priceless gift and left behind a legacy of uprightness which they will cherish forever.