Kesavananda V. State 0f Kerala (1973) - Kashish Goyal
Updated: Nov 22, 2021
“VALIDITY OF THE POWER OF PARLIAMENT FOR AMENDING ANY PROVISION OF THE CONSTITUTION TO WHAT EXTENT WAS PREVIEWED”
BACKGROUND:
Kesavananda Bharati had a certain part of the land in the religious sect in the district named Kasaragod in the state of Kerala. He was also the chief of the religious sect and some of the lands were also acquired by the Kesavananda Bharati. During this time, The Government of Kerala introduced an act named “The Land reforms Amendment Act 1969” As per this act. The government can acquire religious property. Kesavananda Bharati challenged this particular act in 1970 which allowed the State government to impose some restrictions or to manage the religious property[1].
FACTS:
He moved to the Supreme court under the various provisions of the Constitution like under Article 32 which deals with the remedies for the enforcement of rights, Article 14 (Equality before law), Article 19 (1 F- Freedom to acquire property), article 25(Freedom of conscience and free profession, practice, and propagation of religion), Article 26(Freedom to manage the religious affairs), Article 31(Compulsory Acquisition of Property ),
The judgment delivers in the case of I.C. Golaknath vs. State of Punjab[2] was also previewed in the present case.
Various Amendments were also challenged including the 24th Constitutional Amendment 1971, 25th Constitutional Amendment 1972 and 29th Constitutional Amendment 1972, and also the Kerala Land Reforms Act (1971).
JUDGEMENT OF GOLAKNATH CASE[3]:
The Supreme Court stated that Article 368 does not contain the power of parliament to amend the constitution instead it contains only the procedure for the amendment.
The word Amendment is a law under article 13 (2) of the Indian Constitution as it is inclusive in the definition.
Any amendment made under Article 368 will be covered by the exception provided under Article 13.
FOLLOWING AMENDMENTS:
24th AMENDMENT 1971
· The Parliament inserted a clause (4) under Article 13 which concludes that Any amendment shall not be affected under Article 13 or also under Article 368, a new provision was amended which states that “Nothing in this article 13 shall apply to any amendment under this article” The word “power” was also added in the marginal note of the Article.
· After this amendment, The President cannot withhold the bill for the amendment
25th AMENDMENT 1972
The word “amount” was amended in place of the word “compensation” in Article 31 (2).
A new provision was inserted “Article 31 C” to remove all the difficulties.
29th AMENDMENT 1972
It mainly inserted the Kerala Land Reforms Act into the 9th Schedule which concludes that the following Act is outside the scope of the judiciary.
ISSUES:
Constitutional Validity of 24th Amendment 1971 and 25th Amendment 1972 was challenged?
To what extent parliament has the power to amend the Constitution?
CONTENTIONS OF THE PARTIES:
PETITIONER
The petitioner contended that the power of the parliament to amend the constitution is limited which is based on the theory of the basic structure which was introduced by Justice Mudholkar in the case of Sajjan Singh vs. State of Rajasthan[4]
He pleaded that he has the right to protection of the property under Article 19 (1) (f) of the Indian Constitution.
The 24th and 25th Amendments violated our fundamental rights.
RESPONDENT
There is a basic principle of our Indian Legal system i.e. Supremacy of the law. Based on this, the respondent argued that the parliament has unlimited power for amendment.
To achieve the social and economic objectives which are enshrined in the preamble, the parliament should have unlimited power to amend the constitution.
OBITER DICTUM (OBSERVATIONS MADE BY THE COURT)[5]
The Court observed that to build a welfare state, the power of the parliament to amend the constitution should be subject to restrictions.
Indian Constitution is a social document that is based on the philosophy of sociology. Like every philosophy has some basic features which cannot be altered but practices can be changed according to the circumstances as same as in the constitution some basic features of the constitution.
The bench while giving the decision, focuses on the eradication of the state of poverty and social backwardness in the country.
The Court also observed that The Constitution of India derives its power from the “People of India” and if 2/3 majority of the houses give assent to the bill of the amendment, it does not mean the entire population. Therefore, it is not correct to say that the amendment passed by both houses represents the people of India.
In India, There exists a democratic state which gives rights to common people, Therefore the decision should be given so that it restores the faith of people in democracy as well as in Judiciary.
The Court has also kept in view the judgment was given in Sankari Prasad Singh vs. Union of India [6] and Sajjan Singh vs. the State of Punjab[7], In both cases, The Court held that the parliament had the power to amend fundamental rights also and in Article 13 the term law does not include the amendment.
DOCTRINE OF BASIC STRUCTURE
This doctrine implies some essential features of the constitution which should be violated in any case. There is no such clear definition of the principles but there are some features like Supremacy of the Constitution, Independent judiciary, Separation of power, Judicial review, secularism, etc. as this is not exhaustive, new features may be added by the court as per the rulings and the judgments. But whether the basic structure of the constitution violates or not? , It would depend on the Judiciary to reach out on any decision.
JUDGMENT[8]
The Court introduced the doctrine of basic structure and held that the parliament can amend the provision of the Constitution but the amendment shall not destroy the basic fealties of the constitution.
The Court also upheld the 24th Constitutional Amendment (1971) and 1st part of 25th Constitutional Amendment (1972) as there was no link between Article 19 (1) f and Article 31 and struck down the 2nd part which barred the legal remedy as no law can bar the citizen to reach the court for enforcement of their rights.
The Court declared Article 31C as unconstitutional and removed the right to property.
CONCLUSION
Does this present Judgment analyze the power of parliament for amendment in the constitution as to whether the parliament has the absolute power to amend or not? The parliament has no absolute power to amend. This Judgment is given as per the interest of the public as Fundamental rights which are given under the constitution should be protected at any cost. Any citizen can move to the court for enforcement of their rights. A new concept is evolved i.e. The Doctrine of the basic structure which will be the essential features of the constitution.
REFERENCES
[1] Kesavananda Bharati vs. State of Kerala (1973), https://blog.ipleaders.in/kbharatikerala/ [2] 1967 AIR 1643, 1967 SCR (2) 762 [3] Golaknath v. State of Punjab (1967 AIR 1643, 1967 SCR (2) 762) [4] Sajjan Singh v. State of Rjasthan (1965 AIR 845, 1965 SCR(1) 933 ) [5]Kesavananda Bharati vs. State of Kerala, https://lawtimesjournal.in/kesavananda-bharti-vs-state-of-kerala-case-summary/ [6] Sankari Prasad Singh v. Union of India, (1951 SCR 89, AIR 1951 SC 458) [7] 1965 AIR 845, 1965 SCR(1) 933 [8] Basic Structure Doctrine: Kesavananda Bharati Case, https://www.drishtiias.com/daily-updates/daily-news-analysis/basic-structure-doctrine-kesavananda-bharati-case