The acclaimed basic structure doctrine, which clipped the widest power of Parliament to amend the Constitution and simultaneously gave judiciary the authority to review any amendment, came into being in 1973 while deciding a case of Kerala seer Kesavananda Bharati.
Bharati, the petitioner in the landmark judgement in Indian legal history, died in Kerala on Sunday.
In 1970, Bharati, the hereditary head of Edneer Hindu Matha in Kasaragod district of Kerala, had moved the top court challenging the state government’s two land reform Acts meant to restrict the management of religious properties.
The case had a number of firsts to its credit. It was heard by the largest bench ever of 13 judges for maximum number of days till date that is 68 and the judgement was 703-page long. The arguments commenced on October 31, 1972, and ended on March 23, 1973.
However, the most important takeaway of the historic judgement was that the principle that Parliament has all the power under the sun to amend every bit of the Constitution was shattered by a wafer-thin majority of 7:6 bench headed by Chief Justice S M Sikri with Justice H R Khanna leading from the front.
The then sharply-divided verdict, which later found many supporters in eminent jurists, had held that though Parliament has power to amend under Article 368 of the Constitution, it did not have the power to emasculate its basic features.
It said every provision of the Constitution can be amended but they will be subject to judicial review to ascertain that the basic foundation and structure of the Constitution remains the same.
Justice Khanna used the term basic structure, in his judgement and said that judiciary has the power to review and strike down constitutional amendments and Acts which are not in conformity with the doctrine.
The top court had given the broad outline as to what would be the part of the basic structure of the Constitution and had said that concept of secularism and democracy would be its part. It also left this issue wide open for future benches to decide as to what will be the part of the doctrine.
Bharti, whose case was argued by the one of the most eminent jurist Nani Palkhivala, had challenged the validity of Kerala Land Reforms Amendment Acts of 1969 and 1971.
These two laws were put in the 9th Schedule of the Constitution to keep them beyond the judicial review power of courts.
However, later it became a case where the width and scope of Parliament to amend the Constitution under Article 368 was discussed and decided for all times to come.
The 13-judge bench had delivered 11 separate judgements in which they agreed on some points and differed on some.
But the basic structure principle was supported by 7 out of 13 judges which later became ground of setting aside several constitutional amendments and the recent has been the quashing of the Constitutional amendment and corresponding NJAC Act on appointment of judges in higher judiciary.
It has been held that the independence of the judiciary has been the part of the basic structure of the Constitution and hence, not amendable.