By: Navdeep Kour
The Constitution of India became effective on 26 January, 1950, it is the supreme law of the country India, the basic and fundamental document that provides the framework and working principle of the organs of the government and the authorities subordinate to it, it demarcates the structure, power, responsibilities, liabilities of the government and also provides the provision with respect to the fundamental rights for the people of the country, directive principles and the duties of the state. The framers of the Constitution while framing it, imparts a constitutional supremacy and not the parliamentary supremacy to the Constitution as the main motive behind it was the welfare of people. The Preamble of the Constitution assures Justice, Liberty, Equality and Fraternity to its citizens. It is the people of India, which are the source of authority under the Constitution.
The Constitution of India is both rigid and flexible, as we are living in the society that is developing and changing so in order to keep the pace with the development and change and to make a balance in the society, the Constitution is subjected to the amendment, article 368 of the Indian Constitution itself deals with the amendment of the Constitution, it is titled as, “Procedure for amendment of the Constitution.” It conferred power on the Union Parliament to amend the Constitution.
Now the question arises whether the power of amendment which is given to the Union Parliament is absolute? Court interpreted this power through various judgments so that Parliament could not amend the Constitution beyond the scope of the Constitution and for its own benefit though the Parliament has the power to amend the Constitution but it is the Supreme Court, which has to interpret the scope of such power. The most important and the landmark judgment with respect to the power to amend Constitution by Union Parliament is the KESHAVANANDA BHARTI CASE.
The power of parliament to amend the fundamental rights given in part III of the Constitution for the first time came into question in the case of Shankari Prasad v. Union of India, where it was held that Parliament can amend the fundamental rights. In other case of Sajjan Singh v. State of Rajasthan, upon the challenging of the constitutionality validity of the 17th Constitution Amendment Act, 1964, the Supreme Court upheld the Parliament power to amend the Fundamental Rights, but there was conflicting opinions of the two Justices on the bench and this give birth to the two most landmark cases in the constitutional history of India since independence viz. GOLAK NATH V. STATE OF RAJASTHAN and KESHAVANANDA BHARTI V. STATE OF KERALA.
In the Golak Nath case it was held by Supreme Court that Parliament had no rights at all to amend the fundamental rights this was later overruled by Keshvananda Bharti case. In Keshvananda Bharti case
Keshvananda Bharti case outlined the basic structure of the Constitution, in this case court consider the 24th, 25th, 26thand 29th amendments of the Constitution. In this case Keshavananda Bharti, the head of the muth in Kerala filed a petition challenging the Kerala Land Reforms (Amendment) Act, 1969, which was a government attempt to impose restrictions on the religious property which was against the Article 26 of the Indian Constitution. In this case the bench comprises of 13 judges – the largest bench ever to sit in the Supreme Court. In this judgment was given that the power which is given to the Parliament under the Article 368 of the Indian Constitution is not absolute thought the Parliament have the right to amend the Constitution but without effecting its basic structure, which is the soul of the Indian Constitution and it was further held in this case that the Preamble is the very part of the Constitution. It was not specify in the case what constitute basic structure, leaving it open for the courts to decide it with respect to different cases. It was interpreted by the courts the doctrine of basic structure includes
- Supremacy of the Constitution
- Rule of law
- Independence of judiciary
- Fair elections
- Welfare state.
So the Supreme Court simply held that the basic structure of the Constitution cannot be altered.
Similarly Article 13 of the Indian Constitution also provides that all laws, whether pre-constitutional or post-constitutional, void, if they are inconsistent with the fundamental rights provided in the part III of the Constitution. Article 13 secures the importance of the Constitution.
Now the question is what would happen to the Constitution of India without keshavananda Bharti. Keshavananada Bharti was born on 9 December, 1940; he served as head of the mutt (a Hindu monastery) in Kasaragod district, Kerala. He was the petitioner in Keshvannanda Bharti case where he filed petition against the Kerala Land Reforms (Amendment) Act, 1963 through which Kerala Government was acquiring the religious property, he in his petition seeks that this action of the government was violating his fundamental right guaranteed under Article 26 i.e. religious right, he argued, along with his lawyer Nani Palkhivala and court passed the judgment that Parliament cannot amend the basic structure of the Constitution while amending the it .Keshvananada Bharti has saved the real essence of the democracy, as we know that India has a parliamentary form of the government and if in the Keshvananda Bharti case Supreme court had given the absolute power to the Parliament to amend the Constitution without any restriction then the India would possibly lose his democratic value and turned into totalitarian state where the Parliament would makes laws and rules according to their comfort and certainly the Constitution would have lost its supremacy ,the 39th amendment under Indira Gandhi prohibited any challenge to the election of the Prime Minister, President, Vice President irrespective of the election malpractice and the 41th amendment made under Indira Gandhi government prohibited any kind of civil or criminal proceedings against the Prime Minister, President, Vice-President or the Governor and this not only during their term of office but forever, if the doctrine of Basic Structure was not passed by the court in Keshvananada Bharti case and Parliament would indeed be supreme, these amendments would have become the Part of the Indian Constitution and this would directly or indirectly effected the people of the country.
After the Keshavananda Bharti case an emergency was proclaimed in 1975, by the Indira Gandhi government to overturn the judgment given by the Supreme Court in the case and amend the doctrine of basic structure so that the parliament would get the absolute power in amending the Constitution but again Palkhivala argued so eloquently and the bench dismantled within two days. Later the doctrine of Basic Structure was reaffirmed by the Supreme Court in the case of Minerva Mills case and Waman Rao Case.
So it can be concluded that Keshavananada Bharti a simple and ordinary man protected the basic principle of our Constitution and the dignity of the individual from the power of the Parliament which can be used by them for their own benefit, without him the situation today would be totally different he fought strongly protecting the sovereignty, secularism, democracy the pillars of the Indian Constitution. A big thanks to Swami Kesahavananada Bharti Ji for their great contribution towards the welfare of the country. On 6 September 2020, we lost the Swami ji but he will be always remembered by the whole country for protecting the democracy and honour of the people of his country.
- Narender kumar, Constitutional Law of India, Allahabad Law Agency (9th Edition 2015).
Arvind P.Datar, The case that saved Indian democracy, The Hindu.
 AIR 1973 SC 1461.
 AIR 1951 SC 458.
 AIR 1965 SC 845
 AIR 1967 SC 1643
 Freedom to manage religious affairs.
 AIR 1980 SC 1789
 AIR 1981 SC 271