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Tags Current Affairs

Kesavananda Bharati case and Basic structure of constitution

Date: 07 September 2020 Tags: Constitution

Issue

Kesavananda Bharati, the seer behind the iconic case of Fundamental Rights, passed away at Kerala’s Edneer Mutt in Kasargod district.

 

Background

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.

 

Details

  • 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.

  • 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.

  • 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.

  • Despite the ruling that Parliament cannot breach fundamental rights, the court upheld the amendment that removed the fundamental right to property.

 

Basic structure

  • 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.

  • 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.

  • The proponents of Basic structure have hailed the concept as a safety valve against majoritarianism and authoritarianism.

 

The ‘basic structure’ doctrine has since been interpreted to include
 

  • the supremacy of the Constitution,

  • the rule of law,

  • Independence of the judiciary,

  • doctrine of separation of powers,

  • sovereign democratic republic,

  • the parliamentary system of government,

  • the principle of free and fair elections,

  • welfare state, etc.

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