Context: Recently, the Main petitioner, Kesavananda Bharati, of Kesavananda Bharati Sripadagalvaru and Ors v State of Kerala Case, 1973 (known for the basic structure doctrine of the Supreme Court), passed away.

• The ruling is considered among the most consequential decisions by the Supreme Court as it set out the “basic structure” of the Constitution that Parliament cannot amend.

Background

• The Supreme Court conceded absolute power to Parliament in amending the Constitution, as was seen in the verdicts in Shankari Prasad case (1951) and Sajjan Singh case (1965).
• In both the cases the court had ruled that the term “law” in Article 13 must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power under Article 368.
• This means Parliament had the power to amend any part of the Constitution including Fundamental rights.
• But Article 13(2) reads - "The State shall not make any law which takes away or abridges the right conferred by this Part (i.e. Part-III) and any law made in contravention of this clause shall, to the extent of contravention, be void."
• However, in the Golaknath case (1967), the Supreme Court held that Parliament could not amend Fundamental Rights, and power to amend the Constitution would be only with a Constituent Assembly.
• The Court held that an amendment under Article 368 is "law" within the meaning of Article 13 of the Constitution and therefore, if an amendment "takes away or abridges" a Fundamental Right conferred by Part III, it is void.

To dis-effect the judgments of the Supreme Court in the Golaknath case (1967), RC Cooper case (1970), and Madhavrao Scindia case (1970), the then government enacted major amendments to the Constitution. Most notably:

• 24th Constitutional (Amendment) Act, 1971- Parliament had also given itself the power to amend any part of the Constitution.
• 25th Constitutional (Amendment) Act, 1972- The right to property had been removed as a fundamental right.

Who was Kesavananda Bharati? 

• Kesavananda Bharati was the head seer of the Edneer Mutt in Kasaragod district of Kerala since 1961. He left his signature in one of the significant rulings of the Supreme Court when he challenged the Kerala land reforms legislation in 1970. 
• A 13-judge Bench was set up by the Supreme Court, the biggest so far, and the case was heard over 68 working days spread over six months.  
• The Bench gave 11 separate judgments that agreed and disagreed on many issues but a majority judgment of seven judges was stitched together by then Chief Justice of India S M Sikri on the eve of his retirement.  
• However, the basic structure doctrine, which was evolved in the majority judgment, was found in the conclusions of the opinion written by one judge — Justice H R Khanna. 

What was the case about? 

• The case was primarily about the extent of Parliament’s power to amend the Constitution. First, the court was reviewing a 1967 decision in Golaknath v State of Punjab which, reversing earlier verdicts, had ruled that Parliament cannot amend fundamental rights. 
• Second, the court was deciding the constitutional validity of several other amendments. Notably, the right to property had been removed as a fundamental right, and Parliament had also given itself the power to amend any part of the Constitution and passed a law that it cannot be reviewed by the courts. 
• The executive vs judiciary manoeuvres displayed in the amendments ended with the Kesavananda Bharati case, in which the court had to settle these issues conclusively. 
• Politically, the case represented the fight for supremacy of Parliament led by then Prime Minister Indira Gandhi. 

What did the court decide? 

• In its majority ruling, the court held that fundamental rights cannot be taken away by amending them. While the court said that Parliament had vast powers to amend the Constitution, it drew the line by observing that certain parts are so inherent and intrinsic to the Constitution that even Parliament cannot touch it. 
• However, despite the ruling that Parliament cannot breach fundamental rights, the court upheld the amendment that removed the fundamental right to property. The court ruled that in spirit, the amendment would not violate the “basic structure” of the Constitution. 
• Kesavananda Bharati, in fact, lost the case. But as many legal scholars point out, the government did not win the case either. 

What is the basic structure doctrine? 

• The origins of the basic structure doctrine are found in the German Constitution which, after the Nazi regime, was amended to protect some basic laws.  
• The original Weimar Constitution, which gave Parliament to amend the Constitution with a two-thirds majority, was in fact used by Hitler to his advantage to made radical changes.  
• Learning from that experience, the new German Constitution introduced substantive limits on Parliament’s powers to amend certain parts of the Constitution which it considered ‘basic law’. 
• In India, the basic structure doctrine has formed the bedrock of judicial review of all laws passed by Parliament. No law can impinge on the basic structure.  
• What the basic structure is, however, has been a continuing deliberation. While parliamentary democracy, fundamental rights, judicial review, secularism are all held by courts as basic structure, the list is not exhaustive. 

What was the fallout of the verdict? 

• Politically, as a result of the verdict, the judiciary faced its biggest litmus test against the executive. The Indira Gandhi-led government did not take kindly to the majority opinion and superseded three judges —J M Shelat, A N Grover and K S Hegde — who were in line to be appointed CJI after Justice Sikri. 
• Justice A N Ray, who had dissented against the majority verdict, was instead appointed CJI. The supersession resulted in a decades-long continuing battle on the independence of the judiciary and the extent of Parliament’s power to appoint judges. 
• But the ruling has cemented the rejection of majoritarian impulses to make sweeping changes or even replace the Constitution and underlined the foundations of a modern democracy laid down by the makers of the Constitution. 

Implications of the Judgement

• Politically, as a result of the verdict, the judiciary faced its biggest litmus test against the executive. The government ignored the opinion and superseded three judges.
• Within less than two years of the restoration of Parliament's amending powers to near absolute terms, the Forty-second amendment was challenged before the Supreme Court by the owners of Minerva Mills (Bangalore) a sick industrial firm which was nationalised by the government in 1974. Basic structure doctrine was reaffirmed in the Minerva Mills and later in the Waman Rao case, 1981.
• Hence the doctrine forms the basis of power of the Indian judiciary to review and override amendments to the Constitution of India enacted by the Indian parliament.