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What is the Basic Structure of the Constitution? Kesavananda Bharati Case explained

Tulika Tandon

The Constitution, morality and ethics are a necessity for any Government to function properly. In case these are not available any state would be dismantled easily. 

To deal with the growing mindset and culture, the founding fathers gave the provision of Amendments to the Constitution as a major feature. It is included in the article 368 of part XX of the book. 

It gives the Parliament, the power to amend the Constitution and its procedure. The article states that the Parliament may amend the Constitution by way of addition, variation or repeal of any provision in accordance with the procedure laid down for the purpose.

The Parliament is however held from amending the basic structure of the Constitution whatsoever and this is where Kesavananda Bharati case comes into picture. Before it, in the Golaknath case, the apex Court said that Parliament could not amend the Fundamental Rights, but in 1973, it held that the basic structure must not be changed. 

Know more about Kesavananda Bharati case here:

Kesvananda Bharati was the Chief Priest at Sri Edneer Mutt in Kasaragod district of Kerala. He lived from 1961 to 2019. Under Kerala Land Reforms Legislation in 1970, the Government of the state wanted to acquire 300 acres of land of the Edneer Mutt. 

Kesvananda Bharati reached the Supreme Court pleading that the Act violates the Article 26 of the Constitution which was the Freedom to manage Religious Affairs. 

There was an argument on Right to property also which was a fundamental right till then. Through this case an opportunity also arose for the Supreme Court to determine the mending powers of the Parliament of India. 

Indian polity has both Lok Sabha and the Rajya Sabha. This means that the legislature is bicameral in nature. After the bill is passed in both the houses, it goes to the President for his assent. The Kesavananda Bharati case made the judges think to put an end to this debate once and for all. 

In Kesvananda Bharati case the judgement upheld was not to favour authoritarian rule in the near future. After this the basic structure doctrine was also applied in the Minerva mill case and the Waman Rao case.  

Kesavananda Case began when in 1967, the Golaknath case amendments were tried to nullify by the Indira Gandhi Government with the 24th and 25th amendments.

In the 24th amendment Fundamental Rights were tried to be diluted while in 25th amendment Right to property was changed. 

Nani Palkivala was the representative of Kesvananda Bharati. He never is said to have met him and just helped him with the case because he saw an opportunity to change the series of amendments by the Indira Gandhi government through this case. 

The case continued from 1972 to 1973. The largest 13 member bench including the chief justice of India Sarv Mittra Sikri sat for the hearing of the case. It was a tie still but Justice Hans Raj Khanna broke the tie and saved the basic structure of the Constitution.

The majority said that Parliament could not take away the fundamental rights of the citizens even though it had the powers.

However it did not consider Right to Property as a Fundamental Right which meant that Kesvananda lost this case. However this case is said to have been won by the Democracy of India. This case gave the Constitution the Basic Structure Doctrine. 

The basic structure of the Constitution prevents the Indian Sovereignty, Secularism, Equality and Liberty. It also prevents Parliament from using its powers religiously and for its power hunger. The term basic structure was first used by Nani Pakhiwala in the Golak Nath vs State of Punjab case. Earlier in German context implied constitutional limits were used by Dietrich Conrad, Carl Schmitt and Maurice Hauriou too. 

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