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The Amending Power Of The Parliament: An Insight Into Keshavananda Bharati V. State Of Kerala

The Keshavananda Bharati case, is popularly known as the Fundamental rights case. In this case the Supreme Court of India outlined the Doctrine of Basic Structure. It gives the judiciary the power to review and amend the constitutional provisions enacted by the Indian Parliament. The fundamental question in this case was whether the parliament has unlimited powers while amending the constitution or whether there are restrictions imposed regarding the amendment.

Background of the case:
The Bihar Land Reforms Act, 1950 was in violation to the Right to Property. It was in conflict with Article 13(3) which defines 'laws' and 'laws in force'. When the constitutionality of this act was in question in the High Court, it was held unconstitutional as it violates Article 14 of the Indian Constitution.

Consequently, keeping in mind the end goal to ensure and validate Zamindari Abolition laws, the Government made the 1st Amendment of the Constitution of India which introduced few improvements to the Fundamental Rights arrangements of the Constitution. Article 31- and 31 B was likewise included. 9th Schedule was embedded which ensures any Legislation embedded inside the Schedule, from Judicial audit.

And, the development of this case was set apart by a progression of cases that set the phase of this case itself.

But. at the center of every case, the same question arose. Was the right of the parliament to amend the constitution limitless because it spoke to the will of the people and its majority or is it subject to restrictions when it came to certain fundamental rights of the general population.

In February 1970, Swami HH Sri Kesavananda Bharati who was the senior head of the Edneer mutt which is a Hindu mutt in Edneer town in Kasaragod region of Kerala, challenged the endeavors of the Kerala government under the two state land reform act as it imposes limitations on the administration of its property

Even if the state has the power to do so under Article 21, legal scholar Nanabhoy Palkhivala persuaded the Swami into filing a petition under Article 26 (which gives the freedom to manage affairs), concerned with the privilege to oversee religiously claimed property without government obstruction.

Real revision of the Constitution was required (24th,25th,26th, 29th amendments). All these revisions were under test in the Keshavananda Bharati case. Even if the hearings lasted 5 months, the verdict will have a significant influence.

Analysis of the Case:
The Supreme Court of India has reviewed the decision of the Golaknath v. State of Punjab, and considered the validity of 24th, 25th, 26th, and 29th amendments. This case was heard by the largest constitutional bench of 13 judges. The bench gave 11 separate judgements.

Before dealing with the judgements, the court reviewed a series of cases. Those cases are:

Shankari Prasad v. Union of India
In this case the validity of the 1st amendment act, 1951 which inserted the Article 31-A and 31-B was challenged. It was done so on the grounds that it takes away the fundamental rights guaranteed under Part III of the constitution and it falls within the prohibition of Article 13(2) and hence, void. It was contended that the word state comes under the ambit of Article 12 and the word law in Article 13(2) must include constitutional amendments. The Supreme Court held that the word law under Article 1(3) only includes an ordinary law made using legislative powers and not constitutional amendments made using constitutional powers. Therefore, a constitutional amendment will be valid even if it abridges or takes away fundamental rights.

Sajjan Singh v. State of Rajasthan
In this case, the 17th constitutional amendment was challenged. This amendment changed the definition of the word 'Estate' given under Article 31A of the constitution so that the lands held under Ryotwari Settlement can also be included. The amendment also added 44 additional state enactments relating to land reforms to the ninth schedule to protect the constitutional validity and prevent from being challenged before the judiciary for being inconsistent with Fundamental rights. This was challenged because one of the acts inserted by the 9th schedule affected the rights of the petitioner. It was held that amendment includes amendments to all provisions of the constitution.

Golak Nath v. State of Punjab
The constitutional validity of the 17th amendment was challenged again. The Supreme Court overruled the judgements in Shankari Prasad case and Sajjan Singh cases and held that the parliament has no power to make an amendment that abridges or takes away the fundamental rights of the citizens. The doctrine of prospective overruling was applied and held decision will have effect from the date it was made which makes the 1st,4th, and 17th amendment valid. It makes all the decision made before the Golak Nath case valid.

Subba Rao, C.J., supported the judgement based on the following reasons:
He rejected the argument that the power to amend the constitution is a sovereign power and it was supreme to the legislature and that such amendments involve political questions and is outside the purview of judicial review.

The power to make laws comes from Article 245 of the constitution and not from Article 368. This article merely talks about amendments and its procedures.

An amendment is a law under the meaning given in Article 13(2). The word law defined under this article includes every kind of law. Therefore, a constitutional amendment violative of Article 13(2) is void.

  • Whether the constitutional amendments as per Article 368 apply to the Fundamental Rights as well?

On behalf of the Union of India it was contended that the amending power was unlimited but the petitioners contended that the amending power was wide but not unlimited. They further added that the parliament cannot destroy the "basic structure" of the constitution. The court by majority overruled the Golak Nath's case. Six judges (Sikri, C.J., Shelat, Grover, Hegde, Reddy, and Mukherjee) held that there are implied restrictions on amending the constitution. The power to amend the constitution does not mean the power to damage or destroy the essential elements of the constitution. Khanna, J held that the power to amend the constitution does not mean the power to abrogate the constitution.

The other 6 judges (A.N. Ray, Chandrachud, Mathew, Beg, Dwivedi and Palekar, JJ.) held that there are no such express or implied restrictions on amending power of the parliament.

Thus, the court by a majority of 7:6 held that the powers of the parliament while amending the constitution is wide and not unlimited and therefore, does not include the right to destroy the basic features of the constitution. The amendments to every article of the constitution has to be done within the implied limits. Delivering the judgement Sikri, C.J. said "The true position is that every provision of the constitution can be amended provided in the same result the basic foundation and structure of the Constitution remains the same"

Basic Structure:
The judges enumerated certain essentials but they also made it clear that they are not exhaustive in nature but illustrative. The basic structure can be determined based on the facts of each case. In the case M. Nagraj v. Union of India, it was held that basic structure are systematic principles that connect the constitutional provisions. Developed from the German Constitution, these principles form a part of constitutional laws even if it is not of powers between the Legislature, Executive and the Judiciary, and finally, Federal character of the Constitution.

The Basic structure is basically a set of fundamental foundational principles, drawn from the constitution itself. They are not principles carved out by the judiciary itself.

Whether the 24th Amendment is valid?
The court by majority overruled the Golak nath case and held that the 24th amendment does not enlarge the amending power of the parliament and declared the true legal position as it was before the amendment. It is declaratory in nature and hence is constitutionally valid.

Whether the 25th amendment is constitutionally valid?
Under article 368 the parliament doesn't have the power to amend the basic frame work of the constitution. While dealing with the validity of the 25th amendment, the court held that only the first portion was valid. The second part, namely, "no such law, containing the declaration that it is for giving effect so such policy shall be called in question in any court on the ground that it doesn't give effect to such policy" is invalid.

Whether the 29th amendment is constitutionally valid?
The Kerala Land Reforms Act, 1963 and other such reforms were all added to the 9th schedule of the Constitution. The Court upheld the validity of this amendment.

The Keshavananda Bharati case overruled the Golaknath case but it did not establish the supremacy of the parliament. As held in this case, the fundamental rights can be amended by the parliament but not the ones that form the basic structure of the Constitution. In the Golak Nath case, the main question was whether the parliament can amend the fundamental rights of the Constitution. But, the Keshavananda Bharati case focused on the Constitution as a whole. It also highlighted that the parliament cannot rewrite the whole constitution under Article 368 and bring a new form.

Invalidating Article 31-C in this case, prevented the State Legislature from exercising power to virtually amending the constitution. The amendment states that if the state legislature makes a law containing a declaration that it is to give effect to a policy, then no court may scrutinize it.

This case has protected the Indian Constitution by passing a 2/3 majority and is an example of judicial creativity of its first order.

Significance Of The Doctrine:
The Doctrine of Basic Structure has evolved on a case to case basis and has significantly resulted in the expansion of the Doctrine.

In the case, Indira Nehru Gandhi v. Raj Narayan, CL.4 was added to Article 329-A which validated the retrospective effect the election of the then Prime Minister Indira Gandhi. This was struck down as it violated free and fair elections, was violative of Article 14 and is arbitrary and destroys the Rule of Law.

In the case, Minerva Mills v. Union of India the Independence of Judiciary was considered as the basic structure of the Constitution. It was also held that the fundamental rights and judicial review can be considered as basic structure depending on the facts of the case.

In the case, Waman Rao v. Union of India the Supreme Court held that all amendments made before 24th April 1973 (date on which Keshavananda Bharati judgement was given) including those by which 9th schedule to the Constitution was amended time to time were valid and constitutional. But amendments made after the 9th schedule amended were left open to be challenged on grounds that they were beyond the powers of the constitution and violated the basic structure of the constitution.

It was held by the Hon'ble Court that all the provisions of the constitution can be amended as long as it does not violate the basic structure. This doctrine of basic structure has evolved so much after the verdict and has protected democracy and help acquire justice in a lot of cases. This case will always play a pivotal role in obtaining justice.

End Notes:
  • AIR 1973 SC 1461
  • AIR 1951 SC 458
  • AIR 1965 SC 845
  • AIR 2007 SC 71
  • AIR 1975 SC 2299
  • AIR 1980 SC 1789
  • AIR 1981 SC 271

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