Kesavananda Bharati, seer behind ‘basic structure of Constitution’ case, dies aged 79 at his Kerala ashram
Kesavananda Bharati, who filed the famous constitutional case leading to birth of the legal doctrine of “Basic Structure”, passed away on Sunday morning at his ashram, Sri Edneer Mutt ,in the Kasaragod district of north Kerala. Bharati, who had been suffering breathing and heart ailments, was 79.
Over the years, the name of Bharati had become synonymous with constitutional law after a 13-judge bench of the Supreme Court on April 24, 1973 delivered its historic verdict in the case known as Kesavananda Bharati v. State of Keralam in which it was held that the powers of Parliament to amend the Constitution of India is circumscribed by what is known as Basic Structure of the Constitution.
In other words, the court ruled that Parliament can amend any part of the Constitution, but such amendment cannot in any manner deface or distort the basic features of the charter such as democracy, federalism, supremacy of the Constitution, secularism, and separation of powers between legislature, executive and judiciary.
Bharati took over as the pontiff of Sri Edneer Mutt, a Hindu monastic institution, when he was 19. Bharati was in his late 20s or early 30s when the mutt’s properties were sought to be acquired by the Kerala government, triggering the landmark case.
“He spent his entire life as a religious leader but he has left back for the country a legal doctrine which has endured to keep the country together in the face of a lot of autocratic governments with a huge majority,” senior counsel Sanjay Hegde told HT.
“Very rarely does a litigant attain immortality for the cause he or she espoused and the redefining moment brought by the judgment. His Holiness Kesavananda will be to India, what (Oilver) Brown is to the US (judgment against racial segregation in public schools) and (May) Donoghue to the United Kingdom (judgment on negligence which empowered consumers). Swamiji may have departed, but the doctrine of Basic Structure will remain forever (hopefully),” senior advocate KV Viswanathan told HT.
“Bharati was revered as a God-like figure. He treated everyone with much affection and care. My stay at the Mutt afforded me the opportunity to experience his hospitality and affection,” said advocate Raghul Sudheesh, a Kerala high court lawyer who had visited the mutt in 2011 to interview Bharati.
What did Bharati challenge?
He initiated the case on March 21, 1970 challenging the Kerala Land Reforms (Amendment) Act 1969. Later, three constitutional amendments – 24th, 25th and 29th – were passed by the Parliament and they became a subject matter of challenge on the grounds that they violated his fundamental right to practice and propagate religion (Article 25), freedom of religious denomination to manage its religious affairs including managing and administering its property (Article 26) and right to property (Article 31) and right to acquire and hold property [Article 19(1)(f)].
He had mounted the challenge after the land reforms law enacted by the Kerala government threatened to strip his mutt of its property, which was the source of income for the ashram.
“His petition before the Supreme Court was part of his battle for survival of the mutt which he headed. The government was going to acquire the properties of the mutt which was its main source of income,” Sudheesh said.
Noted lawyer Nani Palkhivala appeared for Bharati before a 13-judge bench of the Supreme Court. However, it was senior counsel MK Nambiar, father of current attorney general KK Venugopal ,who managed the case on behalf of Bharati and who engaged lawyers in Delhi to argue the case. It marked the only instance in the Supreme Court when a bench of 13 judges (which was the full strength of the apex court at that point of time) sat to decide a case.
The case remains the longest heard before the Supreme Court; it lasted for 69 days between October 31, 1972 and March 23, 1973.
Significance of the case
How did a property case become a watershed moment in the constitutional jurisprudence of the country?
The case assumed significance due to the debate which started around 10 years prior to it relating to the extent of the power possessed by Parliament to amend the Constitution of India.
Two Articles in the Constitution were at the centre of this debate – Articles 13 and 368. Article 13 states that Parliament cannot make any law which violates fundamental rights guaranteed under Part III of the Constitution. Article 368 empowers Parliament to make amendments to the Constitution.
The issue, which came up before the court as early as 1964 in the case of Sajjan Singh v. State of Rajasthan, was whether the word “law” under Article 13 included within its scope a constitutional amendment under Article 368.
If a constitutional amendment under Article 368 is “law” within the meaning of Article 13, then it would automatically follow that Parliament cannot amend the Constitution to take away any fundamental right.
In Sajjan Singh, a five-judge Constitution bench of the Supreme Court ruled that the word “law” in Article 13 does not include a constitutional amendment under Article 368. This meant Parliament has unfettered power to amend the Constitution.
This position was overturned in 1967 by an 11-jugde bench of the Supreme Court in the landmark case of Golaknath v. State of Punjab. In this judgment, it was held that an amendment under Article 368 is “law” within the definition of Article 13.
This was seen as a major erosion of Parliament’s rights to implement the people’s mandate. The Indira Gandhi government saw this stance as a challenge to the will of the elected majority.
In 1971, it enacted the Constitution (Twenty-Fourth Amendment) Act which expressly provided that the bar under Article 13 will not apply to any amendment made to the Constitution under Article 368. This meant that Parliament could amend any part of the Constitution, including fundamental rights.
Later, by the 25th amendment to the Constitution, Parliament in 1972 curtailed the right to property under Article 31, which was a fundamental right back then (Article 31 was later removed from the list of fundamental rights).
The 29th amendment put the Kerala land reforms law beyond the purview of judicial review
The court upheld the validity of all the three constitutional amendments - 24th, 25th and 29th – which were under challenge.
It also overruled the judgment in Golaknath case and held that a constitutional amendment is not “law” within the meaning of Article 13. Thus, it was ruled that Parliament has the power to amend any part of the Constitution.
This seemed to be a victory for the government. However, it was not. The power to amend any part of the Constitution, which the court said that Parliament possessed, came with a rider -- it should not infringe upon the Basic Structure of the Constitution.
Thus, the takeaway from the judgment was that Parliament could not do as it pleases with the Constitution. Any law made by it, including constitutional amendments, should not violate the ethos and basic features of the Constitution and the Supreme Court will be the final arbiter on whether there is any such transgression into the Basic Structure.
The court also did not given any exhaustive list of what would constitute the Basic Structure of the Constitution. This was left open-ended and has been time and again used to strike down constitutional amendments that the Supreme Court felt distorted the Constitution.
“Kesavananda doctrine swung against the government by the narrowest of majorities of 7:6 with justice HR Khanna signing against the government in favour of the doctrine. It foreshadowed the coming of the Emergency because soon after the judgment, justices KS Hegde, AN Grover and JM Shelat were superseded for the post of Chief Justice of India and justice AN Ray who was junior to them was appointed to the post,” Sanjay Hegde said.
Justice Hegde, Shelat and Grover had ruled against the government while justice Ray had favoured the government.
As for Bharati, the mutt lost its properties since the laws challenged by it were upheld.
“He believed that the outcome of the case was destiny and God’s decision. What concerned him most was that he mutt lost its source of income and had to depend on donations. He was, however, happy that the case became landmark judgment and felt good about fighting to protect the Mutt and its properties,” Sudheesh said.
A Carnatic and Hindustani vocalist, he wrote many devotional songs and plays and was also a patron of Kannada art and culture. The mutt manages many educational institutions. It also runs a Veda Pathasala which imparted lessons in Advaitha and Vedic lessons to many students. In 2018, Bharati was honoured with the justice V R Krishna Iyer award.
Kerala chief minister Pinarayi Vijayan expressed his condolences. “He was a revolutionary who made rich contributions in cultural and educational spheres,” Vijayan said in a message. Minister of state for external affairs V Muraleedharan tweeted that the nation will always remember “his valuable contributions and teachings and they will continue to enlighten people.”
(K Ramesh Babu contributed to this story)