What is the Basic Structure of our Constitution? A question that would’ve arisen in your mind when you heard about the Keshwananda Bharati Case, in which the Supreme Court of India gave the judgment that the Basic Structure of the Indian Constitution cannot be amended or abrogated by the Parliament. But what is the basic structure, and what are the events that led to this most significant judgment in Indian history. So, in this blog, we’ll be having a deep analysis of the Keshwananda Bharati Case and its historical background.
Before going through the case and its historical background, let’s have a brief understanding of the Fundamental Rights that are provided to us by our Constitution.
- Right to Equality
- Right to freedom
- Right against Exploitation
- Right to Freedom of Religion
- Right to minorities (educational and cultural rights)
- Right to Constitutional Remedies
- Right to Property (Initially provided in the constitution, removed by the 44th Constitutional Amendment in 1978)
Right to Equality –
The Right to Equality assures equality before the law and prevents discrimination on the basis of caste, religion, race, and sex. It also creates equality in terms of employment and abolishes discriminatory practices like untouchability.
Right to Freedom –
The Right to Freedom provides freedom of expression, speech, association, right to form or be a part of cooperation and union, right to resist (peacefully), right to undertake any profession, and right to life.
Right against Exploitation –
The Right against exploitation protects a person’s dignity by prohibiting human trafficking, forced labor, beggar, and child labor (employing children below the age of 14).
Right to Freedom of Religion –
The Right to Freedom asserts that all people of India are free to profess, propagate and practice any religion.
Right to Minorities (Educational and Cultural Rights)
The Right to Minorities gives the minority community of India, based on religion or language, the right to conserve its language, culture, and script, by establishing and administering educational institutions of their choice.
Right to Constitutional Remedies –
The Right to Constitutional Remedies empowers the citizens to move to the Supreme Court of India in case of denial of the Fundamental Rights provided by the Constitution of India.
Right to Property (Now reduced to a Legal Right) –
The Right to Property, as mentioned in Article 31 states that no person shall be deprived of his property save by authority of law. And if the State takes away the property of an individual for public welfare, then that person is entitled to a reasonable compensation by the State.
The Keshwananda Bharati Case is associated with the Right to Property, as it still was a Fundamental Right in 1970.
Keshwananda Bharati Case: Historical Background
The First Amendment and the contradictions within the Constitution-
The Constitution of India is the lengthiest constitution in the world, as it’s the Constitution of the world’s biggest Democracy. The Indian Constitution, unquestionably, was made by the finest minds of our country and was made after a great deal of deliberations and discussions, which makes it one of the finest constitutions in the world.
But although, there were some contradictions within the constitution, which were evident shortly after its commencement.
Contradictions in the constitution
The Directive Principles of State Policies (DPSP) mentioned in Part 4 of the constitution are the principles on which the State shall formulate its policies for public welfare.
The Directive Principles of State Policies states that there should be an equitable distribution of material resources of a community for the common good. It also asserts that the state shall formulate policies that aim to reduce income inequalities.
So, the government formulated the Land Reform policy, which aimed at reforming the ownership of land in India and redistribution of the land to the landless people. Hence, this policy was following the Directive Principles with an objective to enhance income equality among the citizens. But when the states started implementing the policies of land reform such as Land Ceiling (which puts a cap on the area of rural/agricultural land a person can hold), and the steps taken to eliminate the Zamindars, the Right to Property came into its way. Hence, many zamindars and other people holding large areas of land went to Supreme Court stating that the land reform policies of the government were threatening their fundamental rights, by snatching away their land.
This created a dilemma, both for the Supreme Court and the Government of India, as the Supreme Court’s primary responsibility was to protect the fundamental rights of the citizens, and the government was responsible for reducing income inequality. This dilemma eventually led to the First Amendment.
The First Amendment
(We won’t be discussing the whole Amendment, just the part which is relevant to our topic)
The First Amendment added a new clause 31(A). It stated that if an individual’s property is seized under the Land Reform policies, then the provisions of Article 31 (Right to Property) shall not be applicable to that seizure. Hence, this solved the dilemma for the Government and the Supreme Court, as no one can challenge the policies of land redistribution and land ceiling in the Supreme Court on the ground of Right to Property.
Article 31(B) added Ninth Schedule to the constitution of India. The acts, passed by the Central and State legislative assemblies, that are included in the ninth schedule, would not be eligible for Judicial Review by the Supreme Court or the High Court. It means that the Supreme Court or the High Court cannot do a Judicial Review of the acts that are included in the Ninth Schedule.
*Judicial Review – A process by which the Judiciary checks whether the actions of the Legislative, Executive, and Administrative are compatible with the constitution i.e. whether the action is justified by the constitution. And if the Judiciary finds the action to be incompatible, then it has the power to nullify the action. For example, if an act passed by the parliament is inconsistent with our constitution, then the Supreme Court can nullify that act.
The Shankari Prasad Case, 1951
The Shankari Prasad Vs The Union of India case challenged the 1st Amendment of the constitution-
Argument – The 1st Amendment is unconstitutional as it limits the Right to Property (fundamental right). And according to Article 13, any law made by the Legislature, which limits our Fundamental Rights, shall be nullified. So, the 1st Amendment limited our Fundamental Rights and hence, it shall be nullified by the Supreme Court.
And Article 13(3) clarifies as to ‘what constitutes as a law’.
- Bye Law
- Custom or usage having in the territory of India the force of law.
But surprisingly, Article 13(3) does not mention Constitutional Amendment.
Government’s Argument – The government argued that Article 368 (which deals with the Powers and Procedures of the Parliament to amend the Constitution) is independent of Article 13. Hence, the provisions of Article 13 cannot be applied to Article 368. So, Article 13 cannot limit the powers of the Parliament to amend the Constitution.
The Supreme Court gave the judgment in the favor of the Government and recognized its argument that Provisions of Article 13 cannot influence the powers of the Parliament to amend the constitution, which is provided by Article 368. In a nutshell, Article 368 is independent of Article 13.
Golak Nath Case, 1967
Golak Nath family held 500 acres of agricultural land in Jalandhar, Punjab. But the Punjab Security and Land Tenures Act stated that after partition, brothers (Henry and William Golak Nath) can claim only 30 acres of land each, and the decision on what to do with the rest of the land would be taken by the government.
So, the Golak Nath family challenged this and moved to the Supreme Court. And the argument made by the Golak Nath family was the same, claiming that the State cannot limit their Right to Property.
The 11 member bench of the Supreme Court gave the judgment, with a majority of 6:5, which nullified the past judgment of the Supreme Court and asserted that Article 368 is not independent of Article 13 and the State, by using the powers of Article 368, cannot limit the fundamental rights.
However, this judgment would’ve caused chaos and would’ve threatened the earlier acts of land reforms taken by the governments. In order to prevent this, Supreme Court clarified that this judgment was not retrospective in nature.
24th Amendment, 1971
The 24th Amendment was intended to resolve Golak Nath’s case and repeal the Supreme Court’s judgment.
The 24th Amendment added Clause 4 to Article 13 and Clause 3 to Article 368 and mentioned the same thing in both of the clauses.
- 13(4)- Nothing in this article shall apply to any amendment of this Constitution made under Article 368.
- 368(3)- Nothing in Article 13 shall apply to any amendment made under this article.
So, the 24th Amendment ultimately repealed the Supreme Court’s judgment on Golak Nath’s case and made Article 368 independent of Article 13. And gave powers to the Parliament to make any amendments it pleased, even if it limits the Fundamental Rights given to the citizens by the Constitution.
Swami Keshwananda Bharati Case, 1970
With the 29th Amendment, the Kerela Land Reforms Act, 1963 was included in the Ninth Schedule of the Constitution.
Swami Keshwananda Bharati was the Shankaracharya, who was the head of the Hindu monastery Endeer Matha, which was located in Kasaragod District, Kerela. Due to the Land Reforms Act of Kerela, the rights over management of Endeer Matha were snatched away from him.
So, Swami Keshwananda Bharati moved to the Supreme Court to challenge the 29th Amendment and the Kerela Government. Swami Keshwananda Bharati was represented by the renowned Indian Jurist, Nanabhoy Palkhiwala.
This was a big dilemma for the Supreme Court, If the fundamental rights are hurting the welfare measures (land reforms) of the state, then it is unjustified and could be limited if necessary.
But to what extent? If the ruling government had ultimate powers to amend the constitution, which was given to it by the 24th Constitutional Amendment, then the government could very well misuse it for its own benefit, and the fundamental rights and the basic structure of our constitution would not even exist one day.
The JUDGEMENT- The Supreme Court stated that the 24th, 25th, and 29th Amendments of the Constitution are justified. And hence, Article 368 is independent of Article 13. So, any part of our constitution can be amended by the consensus of the Parliament.
The Parliament can very well amend the constitution, but can never rewrite the constitution. The power to write the was with the Constituent Assembly, and this power shall never be given to the Parliament of India. Hence, the Basic Structure of the Constitution cannot be amended.
The basic structure of the constitution-
- Supremacy of the Constitution
- Republican and Democratic form of government
- Secular character of the constitution
- Federal Character of the Constitution
- Separation of Power
- Unity and Sovereignty of India
- Individual Freedom
The definition of the Basic Structure was further evolved by the landmark judgment given by the Supreme Court of India in the Minerva Mills case 1980, which stated that the limited power to amend the constitution is also the basic structure of the constitution.
So, it won’t be wrong to say that the Judgment given by the Supreme Court in the Keshwananda Bharati case is indeed the most landmark judgment that protects the basic structure of our constitution and our Democracy.
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