Kesawananda Bharti’s Case

Introduction –

An outstanding judgment came on April 24^th, 1973 which is famously and obviously realistically known as – Kesawananda Bharti’s Case. This case made a historical judgment which in its own way empowered Judiciary and the advocates practicing in any of the courts in India. To all those who are in 1^st year, this case will be newest and fairly most complex thing to study, though for the students who are aware about Constitutional Law, would be definitely the one to say “Oh, yes, that judgment, it’s so important,” mind me, if I must say that this judgment is extremely important even for all the CLAT students as well as for all those who are giving Constitutional Law’s exam, or those who are in LLM and Mastering in Constitution, or for the judicial exams.

But, this is not why it is only important, it has many reasons to be such a widely discussed case. Nevertheless, being a Citizen of India, it is for us, with many cases outlining the rights for us and for betterment of the newer generation.

Let’s now know the legal, historical, and post aspects of this highly adorable case. We all know, it’s important, now, we will get to know why it is important, where it started and how it ended, who was the master player and who won the chase? All these questions were answered earlier and are again and again answered, I will try my luck as well, in weaving a brief thread in and around this case.

Background of the Case –

A long time ago, we can say almost after 20 years of Independence, a civil petition was filed against the Kerala Government regarding the Kerala Land Reforms Act passed by the legislature in 1969, which was the core reason for filing of petition as Shankaracharya of Edneer Mutt, Shri Kesawananda Bharti Sripadagalvaru, the amendments didn’t settle well with him as it deliberately took away the big land of Mutt. This little land dispute with the government became a very big fight for proper Fundamental rights.

Did you know, in that time anything which comes under Schedule – 9 of the Constitution was “Untouchable” by the Judiciary and so the Kerala land reforms act were included in it. So, if someone files a petition against it, it’s already a loss situation as it will directly goes against the rights of the Government.

Moreover, Schedule 9 was added in the Indian Constitution with the abolition of Zamindari Laws and addition of Freedom of Speech as 1^st Constitutional Amendment. Sometimes schedule 9^th is also regarded as a loophole of the constitution as even if things under it goes against the fundamental rights of the citizen, it can’t be changed.

It was at this time he wrote a letter to his friend, Nani Palkhiwala (the advocate from the petitioner’s side), he was a very passionate and respected lawyer at that time as he was a young commercial tax expert, though this letter presented as an opportunity to him because in that time the Amendments in the Constitution was on the whims of the Government and with political motives.  After reading that letter, it was decided a suit shall be filed in the Supreme Court but with many other major questions which we shall discover later. Though, the major question was – “whether a Government can make any constitutional amendment while disregarding the Fundamental Rights of the citizens”?

Fundamental Rights have always been important for citizens here and anywhere, they are sacred for us and form an integral part of our constitution, it is also very important to note that the laws made by Parliament should consider the aspect of Fundamental Rights. But during that time, the newly formed constitution was unstable and so parliament had all the powers to amend these rights on its wish.

Pre-Case Years –

During 1960-70s, tussle between the government and Judiciary was highly visible as the acts passed by the Government were struck down by the Court, they were – Banking companies Act, 1969 and Privy Purses Ordinance of 1969 as Unconstitutional, since, they were against the Fundamental Rights. Moreover, the same scramble was seen in the Golaknath’s case of 1967 which controlled the powers of the Government – the acts and laws going against the Fundamental Rights were taken as Unconstitutional. Later in 1971, few of the amendments were passed by the then Government namely – 24^th, 25^th and 29^th Amendment Acts. This gave the Parliament some unlimited powers over amending of the constitution.

Legal Questions raised in the case –

On October 31^st, 1973 a 13-judge (the then biggest) bench was seated in the Supreme Court, the hearing was supposed to go on for 70 days. The questions raised were –

Interpretation of A. 368 and Validity of 24^th, 25^th, and 29^th Amendment Acts, these were the legal questions raised.

HM Seervai was the lawyer from Government’s side, he was a very great constitutional lawyer of his time, speaking highly of him is nothing but a way of expressing his works.

An excerpt from there argument which states –

Palkhiwala questioned HM Seervai regarding the constitutional amendment and the way government uses its indefinite and uncontrolled powers in its own favor, he also said that why Fundamental Rights are put on stake every time, while adding this – “with this uncontrollable powers, who will stop Government from Democracy to bringing back the Monarchy?”

To this he replied, that Fundamental Rights are merely Social Rights and he counter questioned Palkhiwala that why he think the unlimited power will lead to the abuse of powers. With this a very notorious retort was raised by him as he said – “we must rekindle the spirit of Fundamental Right of property and that the constitution is not an ordinary law to be changed by the Government”, which was later revealed that this part was said by Seervai in one of his arguments.

Earlier, there were seven Fundamental Rights, which were after this case amended to be six, when Right to property was removed via Fourty Fourth Constitutional amendment act.

In this case, Basic Structure Doctrine was laid out in detail in which Fundamental Rights were added. The majority judgment said that as long as the amendments are done without disturbing the basic structure it is acceptable, nine judges signed this, 4 of the judges gave the dissenting judgment. It should be keenly noticed that out of 13 judges, there were total of 11 judgments where different views of the judges, some matching and some volatile with others were presented. The majority judgment was given by S. M. Sikri the then Chief Justice of India.

This case was important in every aspect, though Kesawananda Bharti didn’t get his land, but he certainly paved a very gracious future of Fundamental Rights.

Post-Case Years and Development –

The freedom in which we are living is definitely because of some of these eminent lawyers and judges who worked to give us this life where we can strongly represent ourselves on the basis of Fundamental Rights.

After the emergency of 1975, and few disruptive amendments to gain back the powers it lost via this case, there were several judgments passed discussing the authority of the Government to amend and dealing with the detailed process of the doctrine of Basic Structure. Two of the important cases are – Indira Nehru Gandhi vs. Raj Narain, 1975, and Minerva Mills vs Union of India, 1977.

Conclusion –

The importance of Basic Structure should be well understood and taken care of while making the laws. It is also pertinent to note that emergencies have caused havoc in the Indian Judicial System where rights are snatched away from the citizens.

Misuse of powers can never be a solution to getting hold of the extra powers, and it is said day in and out that Fundamental Rights are the part of Basic Structure and no way they can be amended or can be tried to be twisted by any laws or ordinances. The Doctrine of Basic Structure is a German concept and is still in the development process.