SOOTHSAYER’S STORY: REVISITING THE KESAVANANDA BHARATI CASE

On September 6, the nation mourned the demise of the prominent spiritual leader- Kesavananda Bharati, Head of Edneer Mutt at Kerala’s Kasaragod. His death rekindled the discussions around one of the iconic cases in the Indian constitutional history named after the Swami (Kesavananda Bharati).

Swami Kesavananda Bharati took charge of the Mutt in 1970 and challenged the state government’s attempt under the two-state land reform acts to press restrictions on the administration of church property. With the help of famous jurists- JB Dadachanji and NA Palkhivala, Bharati fought the case under Article 29 of the Constitution which was about right to manage religiously-owned property without the interference of the government. What makes this case unique is also the fact that its hearing lasted for more than seventy days and was decided by thirteen judges- largest bench to sit in the Supreme Court (SC) to date.
The stir caused by this seer petitioner has resulted in a historical judgment. It is impassable for any government to amend the constitution in a way that might cause harm to its democratic soul and its regard of the fundamental rights of denizens. The Supreme Court held that the Parliament can amend the fundamental right only to an extent and in doing so “freedom of the individual needs to be preserved for all times to come and that it could not be amended out of existence”. In doing so, the apex court also reviewed a 1967 decision in Golaknath vs. State of Punjab which had ruled that Parliament cannot amend fundamental rights. Interestingly, with a thin majority of 7:6, the court held that the Parliament could amend any part of the Constitution as long as the basic structure is unharmed. It said that the basic structure is “inviolable”. “By a stroke of judicial creativity, the amendatory provision of Article 368 was justly handcuffed in Kesavananda Bharati”, said VR Krishna Iyer, one of the most regarded judges in India. It is to note that the SC upheld the previous amendment that removed the fundamental right to property. [Bharati might have lost the case but the government did not win it either.] The historic judgment did not go well with the totalitarian government led by Indira Gandhi which was hellbent at unsettling Constitutional supremacy. A lot many senior judges had to suffer because they defied the odds and formulated the basic structure doctrine. The iconic case also resulted in a long battle on the independence of the judiciary and the extent of Parliament’s powers to appoint judges. On his demise, the Soothsayer must be remembered for his legacy.

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