History:-
We all know that the framers of the Constitution of India had given 2 types of rights to the citizens of India. One was justiciable and another non-justiciable. Part-III the Fundamental Right sis justiciable right and if it is abridged one can knock the doors of Supreme Court under article 32 or High Court under Article 226. Another in Part-IV is non-justiciable rights and no one can go to court if abridged.
When India got its independence the distribution of land was totally uneven as Zamindars were having most of the lands while the peasants were left with small chunk or even no land of their own. The most visionary leader and our First PM Shri J L Nehru was a socialist leader and socialism always asks for an egalitarian state i.e.:- Equal Distribution of Wealth.
Article 31:- Right to Property became the bone of contention.
Government started making laws which gave government the right to acquire the lands of the Zamindars and distribute it amongst the poor. Obviously these laws took away the right conferred upon the Zamindars by the Constitution under Article 31 (Right to Property).
So the Zamindars started going to SC and HC as their FR under Atricle-31 was being violated. Courts got flooded with these types of petitions.
First Case:-
Kameshwar Singh V State of Bihar: Kameshwar Singh, an aggrieved Zamindar challenged the Bihar Land Reforms Act 1950 which gave the state of Bihar, the power to acquire Singh’s land without giving fair compensation. The Patna High Court in its judgment held this piece of legislation ‘ultra vires’ as it abridged Fundamental Rights and so it became null and void.
Always remember. When Judiciary makes any law illegitimate as it is ultra vires, the legislator tries to make it legitimate by going for a Constitutional amendment and changing that provision of Article itself to accommodate that law.
Ninth Schedule
After the judgement, everyone including J L Nehru, our socialist Prime Minister, was worried that how their Agrarian Reforms would take place. First Constitutional (Amendment) Act 1951 was passed and a one new schedule, the IX th Schedule, which clearly stated that if any law is put under IX th schedule it will get a special power and no one can challenge it in the court of law was added.
This saved all the Agrarian Reforms Laws from judicial review. Ninth Schedule was the direct consequence of the judgment in Kameshwar Singh V State of Bihar.
Controversy:- Can Fundamental Rights be amended?
As the time passed, some more amendments were made in the Fundamental Rights by Constitutional amendment under Article 368. Controversy started brewing with the question that Fundamental Rights can be amended or not.
Article 13 states that any LAW that abridges or takes away the Fundamental Right will be null and void but now the question arises that whether the Constitutional Amendment which changes the Fundamental Right itself will fall under the category of law or not, as mentioned in Article 13.
In Shankari Prasad vs. Union of India and Sajjan Singh vs. State of Rajasthan SC clearly stated that Constitutional Amendment is not law so this will not fall in the ambit of Article 13. With this, legislature became the superpower and it started amending the Fundamental Rights too.
But those were the times of L B Shastri and J L Nehru when everything was with a noble motive of empowering the common man, the poor and the destitute. Judiciary and Legislature were working in harmony.
With Smt. Indira Gandhi this harmonious relationship ended and in case of Golaknath V State of Punjab, 1967 the Apex Court took stricter view and overruled the judgement of Shankari Prasad vs. Union of India and Sajjan Singh vs. State of Rajasthan and stated that Constitutional Amendment also falls under the definition of LAW under Article 13. So if any amendment abridges or takes away a fundamental right guaranteed by Part III of the Constitution, the amending act itself was void, in other words, Parliament has no power from now onwards to amend or take away the fundamental rights enshrined under Part III of the Constitution . With this judgment, judiciary clipped the wings of legislature i.e. The Parliament.
The Land mark Judgement in Keshvanadan Bharti vs. State of Kerala:-
Till now we have seen that in Shankari Prasad vs. Union of India and Sajjan Singh vs. State of Rajasthan our Honorary SC was of the opinion that FR under PART-III can be amended under constitutional amendment (ART-368) but in Golaknath V State of Punjab, 1967 SC made U –Turn. It termed FR as sacrosanct and snatched all the powers of legislature to amend FR under Aticle-368.
Earlier, in Shankari Prasad and Sajjan Singh case, SC was too liberal with legislature but in Golaknath case, too strict.
What is Keshavnandan Bharti ns. State of Kerala, 1973 Case?
Keshavanandan Bharti was a Hindu pontiff and head of a Math. Govt. of Kerala had made legislation which took away the rights of Keshavanandan Bharti to manage religious affairs of his Math. But Article 26 of the Constitution of India confers the right on all religious institution to manage their own affairs. This legislation was taking away the right of Keshavanandan Bharti under Article 26. Nani Palkhivala the greatest lawyer assisted by Fali S Nariman convinced Keshavnandan Bharti into filing petition under Article 26.
Supreme Court CJI Mr. Sikri made largest constitutional bench of 13 judges to review the earlier judgment of Golak Nath. A long debate took place for 5 months. Finally the judgement day came and SC and the bench announced its judgment with 7:6. The Judgment in this case changed the face and definition of Republic of India forever. This judgment promulgated a Doctrine of Basic Structure which was appreciated in the whole world.
A fine balance between the rigidness and no rigidness of the Constitution was put in place. The Bench gave the power that legislature can change any part of the constitution including the Fundamental Right and overruled the Golak Nath case by stating that the Constitutional Amendment doesn’t fall under the category of Law as mentioned in Article 13. But it made a restriction that Constitutional Amendment should not take away the basic structure of the constitution.
Now here the catch is What is Basic Structure? The judgment did not clearly define the Basic Structure. Every judge was having different opinion about it. If we try to consolidate the opinion of different judges, we find that sovereignty, democracy, Republic, Secular, Judicial Review of any law, mandate to build a welfare state (i.e. Socialist idea of thought) etc. are some of the basic structures and so Constitutional Amendment cannot take away these rights. But judiciary kept the gates wide open and didn’t fix the boundaries of Basic Structure. It kept all the powers to define the basic structure with it.
Everyone appreciated the fine balance as Legislature was given the power to amend the constitution but keeping the Basic Structure intact. Judiciary became the whole and sole authority to decide what will be the Basic Structure.
Aftermath of Keshavnandan Bharti
Indira Gandhi, the then Prime Miniter became very sore on the whole episode and thought of teaching Supreme Court judges a lesson. Supreme Court was having a tradition that only the senior most judge will be elevated to the post of CJI. Indira Gandhi ignored three senior judges Shelat, Grover and Hegde and made A N Ray, the dissenter in Keshavnandan Bharti v State of Kerala case the CJI. With this a lot of hue and cry took place. Shelat, Grover and Hegde all gave their resignation.
This was the start of the darkest era of Indian Democracy and a Big Fight was about to take place between the Supreme Court and Indira Gandhi.
The other important and interesting events will be covered in the subsequent articles.
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