The man behind the SC judgement on “basic structure” dies

Kesavananda Bharati, the seer of Edneer Mutt in Kasargod district of Kerala, whose case led to the historical judgment of the Supreme Court on the “basic structure” doctrine passed away Sunday morning at an age of 80. This case is regarded as the greatest constitutional case in the judicial history of India. In the Kesavananda Bharati vs the state of Kerala, 1973 by the majority of 7-6, the Supreme Court established the basic structure of the constitution which is inviolable and cannot be amended by the Parliament.

Constitutional expert Nani Palkhivala argued on behalf of Bharati challenging the Kerala Land Reforms (Amendment) Act 1969- which had the objective of distributing the land among the landless farmers. This restricted the management of the Edneer mutt’s property which was the only source of income for the asharam. The petition was against the 24, 25 and 29th constitutional amendments which as argued by Bharati breached his fundamental rights under Article 25 (right to practice and propagate religion), Article 26 (freedom of religious denomination, including managing and administering its property) and Article 31 (right to property).

The attempts to amend the constitution began write after its adoption. Initially the SC allowed the Parliament to have absolute powers in making amendments as in Shankari Prasad(1951) and Sajjan Singh(1965) cases, having full faith in the parliamentary leaders who were erstwhile freedom fighters. But later amendments were being made to suit the partisan political interests. Subsequently in the Golaknath case(1967), the SC ruled that the parliament cannot makes amendments in the Fundamental Rights under Part 3 of the constitution. The ruling interpreted the “laws” in article 13 as inclusive of the amendments and so by using Article 368 no laws or amendments were to be made in contradiction to the Fundamental Rights. The Indira Gandhi government hence came up with the 24,25 and 29th amendments.

The SC ruling in the Kesavananda Bharati case, 1973 said that the amendments could not alter the “basic structure” of the constitution and allowed a wide arena for judicial review. The bench however did not establish as to what constitutes the basic structure, leaving it open for the court to adjudicate on a case by case basis. The top court has interpreted the doctrine to include the supremacy of the Constitution, the rule of law, independence of the judiciary, doctrine of separation of powers, federalism, secularism, sovereign democratic republic, the parliamentary system of government, the principle of free and fair elections and the welfare state.

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