The landmark 1973 ruling in which the Supreme Court laid down the Basic Structure doctrine was the case of His Holiness SwamiKesavananda Bharati Sripadagalvaru and Ors v State of Kerala, Writ Petition (Civil) 135 of 1970. This case began when fertile land belonging to the Edneer Mutt in Kasaragod, Kerala, on which cash crops like bananas, coconuts, etc were grown were taken over by the Government paying next to nothing as compensation. HH Swami Kesavananda Bharati was the head seer of the Edneer Mutt since 1961. He challenged the Kerala Land Reforms Amendment Acts under which the Mutt’s land was taken over. (Incidentally, HH Swami Kesavananda Bharati died in Sep. 2020)
This was no ordinary case. It basically was a power struggle – a struggle for supremacy by the Supreme Court and Parliament. A 13-judge Bench set up by the Supreme Court heard the case over 68 working days spread over 6 months. The Bench gave 11 separate judgments spanning 2,264 numbered paragraphs that agreed and disagreed on many issues but a majority judgment of seven judges was stitched together by then CJI, S M Sikri just before his retirement. However, the basic structure doctrine, for which the case has become famous in legal annals, was evolved in the majority judgment, but mentioned in so many words for the first time in the decisive judgment of one judge — Justice H R Khanna.
The basic structure doctrine was also adopted by the Supreme Court of Bangladesh in 1989, by expressly relying on the reasoning in the Kesavananda case, in its ruling on Anwar Hossain Chowdhary v. Bangladesh (41 DLR 1989 App. Div. 165, 1989 BLD (Spl.) 1). The basic structure doctrine is the common law legal doctrine that the Constitution of a sovereign state has certain characteristics that cannot be erased by its Legislature. The doctrine is recognised in India, Bangladesh, Malaysia, Pakistan and Uganda. It was developed by the Supreme Court of India in a series of constitutional law cases in the 1960s and 1970s that culminated in the case of HH Swami Kesavananda Bharati v. State of Kerala, where the doctrine was formally adopted. This important concept has been discussed in slightly more detail in another Blog entry on this site.
Principles laid down in the majority judgment authored by CJI Sikri and signed by 9 of the 13 judges were:
While fundamental rights cannot be abrogated, reasonable abridgement of fundamental rights could be affected in the public interest.
Every provision of the Constitution can be amended provided the basic foundation and structure of the Constitution remains the same.
Justices Shelat and Grover (who also signed to CJI Sikri’s ruling) separately held that
The fundamental rights and the directive principles have to be balanced and harmonised. This balance & harmony between two integral parts of the Constitution forms a basic element of the Constitution which cannot be altered.
The word 'amendment' occurring in Article 368 must therefore be construed in such a manner as to preserve the power of the Parliament to amend the Constitution, but not so as to result in damaging or destroying the structure and identity of the Constitution.
Justice H R Khanna ruled 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.
Justice A N Ray dissented – and many saw his later elevation by Mrs. Gandhi to the CJI post in 1974 by superseding Shelat, Grover and Hegde, JJ, as a reward for his dissent against the majority opinion in this case, and as punishment to the three superseded judges for their views expressed in the Kesavananda Bharati case.
Rajesh is a qualified CA & CWA. He has served as a Director of PricewaterhouseCoopers, a Director of a large urban co-operative bank and Dean of a B-School over the years. He has taught Finance for over 20 years & trained participants from several Companies and B-Schools. He is an educator and a learner (he believes both are inextricably intertwined), and a knowledge product developer. Law Gyani, which he has founded to help Law Students with their exam preparations, and to understand nuances of the law.
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