Law for the Man or Man for the Law? : A discussion in light of the 50th anniversary of Kesavananda Bharati case

Law for the Man or Man for the Law? : A discussion in light of the 50th anniversary of Kesavananda Bharati case

66 days. 701 pages worth of judgment, with a unique yet equally fundamental opinion for 11 of the 13 judges that presided over the case. Needless to say, Kesavananda Bharati vs. State of Kerala was the most important landmark case that made it to the pages of Indian history.


The case was concluded on 24th April, 1973 with the judge's ruling acting as a temporary fix for the long running disputes between the State and the Court and aiming to provide an answer for two principal questions; these namely being a) How far can the government work for the welfare of the society when it is at the expense of an individual's fundamental rights? And b) How far reaching is the government’s right to amend our Constitution that is deemed to be a ‘living document’?


The deliberation remains, did the ruling manage to provide us with a satisfactory answer? Well the answer is both yes and no.


A cumulation of the concerns represented in cases including Golaknath vs. State of Punjab and Sajjan Singh vs State of Rajasthan, the Kesavananda Bharati case came up in light of the land reforms proposed by the Indira government that aimed to abolish all land capitalized by ‘zamindars’ and ‘maharajas’ and as a consequence, eliminate the then fundamental right to property.

The Indira government argued that their actions were aimed at cultivating a better, more egalitarian society while increasing efficiency by collectivizing land holdings. This social revolution, albeit being a move that would supplement societal development, overstepped the jurisdiction of the fundamental right to property.


As a cascading effect, this led to extreme animosity between the Court and the government with the Judiciary resisting any such reforms since day one and the Parliament constantly looking to overturn and demerit the courts judgment through subsequent amendments.


Case in point, the ruling derived from the Golaknath case stated that any legislation curtailing the provisions of article 13 would be deemed as null and void. However, following this, the parliament moved to pass the 24th amendment which ‘ clarified the Parliament's power to amend every part of the constitution and intended to wipe out the effect of Golaknath’ 


Therefore, the Kesavananda ruling helped, in a way, find a middle ground where it was ruled that the court may amend any part of the constitution, including our fundamental rights, as long as it is not altering the basic structure or the fundamental pillars of the constitution.

This later came to be known as the ‘basic structure doctrine’ which paved the way for the deletion of right to property from the fundamental rights which was then included as an ordinary right under 300(A).


While on the surface the doctrine seems to be an effective tool in ensuring our constitution is not robbed of its identity, the doctrine actually leaves us in a thick fog of ambiguity, for it is for one to note that the term ‘ basic structure’ is one that has not appeared in the constitution even once.


This brings us back to the questions I proposed earlier.

As the constitution fails to define this term, we remain stuck in a grey area of what comes under its precedent. Contrary to belief that the basic structure is ‘cemented’ in our constitution and therefore its violation is intuitive, the basic structure is exposed to be misused.


On one hand, the doctrine is subjected to being belittled and its jurisdiction being questioned by the Parliament allowing them to pass legislations that encroach the will of the people.


On the other hand, the doctrine is open to being expanded by the Courts leading to judicial absolutism and imperialism. While our people seem to cling on to the idea of judicial preservation, emphasizing on the belief that the court can alone resolve a misuse of power, it is a matter of fact that the judiciary too is capable of exercising unlimited authority and has failed to protect our liberties in the past.

Therefore, who is it who gets to decide what is beyond the jurisdiction of the government? In an ideal democracy, everyone would agree the citizens lie at the center of it. That begs the question, is there something more basic than the will of the people and do we have the capacity to decide what rights are set in stone? What if one fine day, public consensus forms against a particular clause of these rights, do they have a right to ask for the removal of them?


It remains to be seen.


To conclude, while employed as a practical and rational tool to spread peace and harmony, the lack of a legal working definition for the ‘basic structure doctrine’ will lead to a cross fire between the Court and the Government, leaving the principles of constitution far more subdued.

As we celebrate the 50th anniversary for this case it is important that we come to terms with this uncertainty, and as citizens deliberate on what defines our ‘inalienable’ principles.