Attempt To Extract Ratio of Kesavananda Bharati v. State Of Kerala
The basic structure theory of the Constitution which was evolved by the majority judgments of the Supreme Court in the now famous Kesavananda Bharati case. That theory in substance is this. There are certain basic features in the Constitution established by the people of India and those features cannot be altered or changed substantially by Parliament, in its constituent capacity under Article 368 of the Constitution. These basic features include, in the language of Chief Justice Sikri, the supremacy of the Constitution, the republican and democratic form of Government, the secular and federal character of Government, the demarcation of powers amongst the legislature, the executive and the judiciary, the freedoms and rights enshrined in Part III and the mandate to build a welfare State in Part IV. The other judgments of the majority, after characterising most of these features and some others also as basic, have left it to the trained, intuitive perception of succeeding generation of judges to evolve new basic features as and when deemed expedient or necessary.
If one goes through the opinions of Hegde, Ray, Jaganmohan Reddy, Palekar, Khanna, Mathew, Beg, Dwivedi, Mukherjea and Chandrachud, JJ., one cannot fail to realise that they base their decision on the proposition that the word “law” in Article 13(2) does not include amendments to the Constitution.
A proposition enunciated, by a majority consisting of Sikri, C.J., and Shelat, Hegde, Grover, Jaganmohan Reddy, Khanna, and Mukherjea, JJ., is that the power to amend does not include the power to alter the basic structure or framework of the Constitution to the extent of changing its identity. It is this proposition that will be applied in testing the validity of a constitutional amendment in the future.
Palekar, Beg, Dwivedi and Chandrachud, JJ., expressed the view that the power of amendment under Article 368 is plenary with no implied or inherent limitations and that it includes the power to add, alter or repeal the various Articles of the Constitution not excluding those relating to fundamental rights. Khanna, J., while agreeing with this view has stated that the power, however, does not extend to altering the basic structure or framework of the Constitution. Ray and Mathew, JJ., also subscribe to the view of plenary powers, but they think that there cannot be a total abrogation of the Constitution which will result in a constitutional void. Any amendment, according to them, should leave behind a mechanism of Government for the making, interpretation and implementation of laws.
An important proposition enunciated by a majority of Judges in the Kesavananda Bharati case is that the power to amend does not include the power to alter the basic structure or framework of the Constitution to the extent of changing its identity. That this ratio is common in the opinions of seven Judges is as follows:
|Sikri, C.J.||The expression ‘amendment of this Constitution’ does not enable Parliament … to completely change the fundamental features of the Constitution so as to destroy its identity.|
|Shelat and Grover, JJ||…the power in Article 368 is wide enough to permit amendment of each and every Article of the Constitution by way of addition, variation or repeal so long as its basic elements are not abrogated or denuded of their identity.
|Hegde and Mukherjea, JJ||If one or more of the basic features of the Constitution are taken away to that extent the Constitution is abrogated or repealed. If all the basic features of the Constitution are repealed and some other provisions inconsistent with those features are incorporated, it cannot still remain the Constitution referred to in Article 368. The personality of the Constitution must remain unchanged|
|Jaganmohan Reddy, J||Parliament could amend Article 368 and Article 13 and also all the fundamental rights and though the power of amendment is wide, it is not wide enough to totally abrogate or emasculate or damage any of the fundamental rights or the essential elements in the basic structure of the Constitution or of destroying the identity of the Constitution.|
|Khanna, J.||The word ‘amendment’ postulates that the old Constitution survives without loss of its identity despite the change and continues even though it has been subjected to alterations. As a result of the amendment, the old Constitution cannot be destroyed or done away with; it is retained though in the amended form. What then is meant by the retention of the
old Constitution? It means the retention of the basic structure or framework of the old Constitution … it is not permissible to touch the foundation or to alter the basic institutional pattern. The words ‘amendment of the Constitution’ with all their wide sweep and amplitude cannot have the effect of destroying or abrogating the basic structure or framework of the Constitution. The power of amendment under Article 368 does not include the power to abrogate the Constitution nor does it include the power to alter the basic structure or framework of the Constitution. Subject to the retention of the basic structure or framework of the Constitution, the power of amendment is plenary and includes within itself the power to amend the various Articles of the Constitution, including those relating to fundamental rights as well as those which may be said to relate to essential features. No part of a fundamental right can claim immunity from amendatory process by being described as the essence or core of that right. The power of amendment would also include within itself the power to add, alter or repeal the various Articles.”
In the Golak Nath decision, the Court addressed itself to the question of abrogation or abridgment of the fundamental rights through a process of amendment. In the Kesavananda Bharati case, larger issues were involved. The majority decision has held that the basic structure of the Constitution cannot be destroyed by means of amendment. What constitutes the basic structure is not clearly made out. Khanna, J., by way of illustration, lists the following democratic and republican form of Government, bicameral legislature at the centre, and secular character of the State.
These items he lists begin with the words “as for instance”, so that they are not exhaustive. Whether what he has not listed along with what he has will correspond to Sikri, C.J.’s similar list of the basic or fundamental features is anybody’s guess. But it appears from the general trend of thought that there is bound to be some approximation. Sikri, C.J., sets down the following as forming what he calls the “basic structure” or “fundamental features” of the Constitution.
“(1) Supremacy of the Constitution;
(2) Republican and democratic form of Government;
(3) Secular character of the Constitution;
(4) Separation of powers between the legislature, the executive and the judiciary;
(5) Federal character of the Constitution.”
The concept of democratic government would necessitate the retention of a large number of Articles in the Constitution. Most of the fundamental rights will have to be retained, albeit in an attenuated form, though it would tax the ingenuity of man a little too hard to discover possible attenuation in a few instances. Quite a good number of the directive principles may be considered to be inviolable in view of the Preamble which sets out the aims and objects of the Constitution. Articles relating to the Union of States, elections and judicial review cannot be repealed. It may therefore be said that the Kesavananda decision has forged more fetters on the powers of Parliament to amend the Constitution.
In spite of its lengthiness, it is known that many things are left unsaid in the Indian Constitution. These things are to be supplied either by conventions which we build up and by judicial decisions. It may be of interest to note that much of what has been done by the Kesavananda decision has been set down in the basic law of the Federal Republic of Germany.
Article 79(3) of the Basic Law lays down:
“An amendment of this Basic Law affecting the division of the Federation into Laender, the participation in principle of the Laender in legislation or the basic principles laid down in Articles 1 and 20 shall be inadmissible.”
Sometime in the future when the basic structure of the Constitution will have to be spelt out, it may be that the Basic Law of the Federal Republic will provide us with some guidelines.