1973: Kesavananda Bharati case

Bharati’s petition led to the judgment which set forth the “basic structure doctrine”.

Kesavananda Bharati. | Photo Credit: By Special Arrangement

In an interview a few years before his passing in 2020, Kesavananda Bharati, the pontiff of the Edneer Mutt in Kasaragod in Kerala, said that when he challenged the Kerala Land Reforms Act he never thought that the subsequent Supreme Court judgment (in Kesavananda Bharati vs State of Kerala) would become such a landmark event in the annals of the Indian judiciary. “I approached the court not because I lost my property but due to the feeling that what the government did was not right,” he said.

Nonetheless, Bharati’s petition led to the Kesavananda judgment, which set forth the “basic structure doctrine”. The Supreme Court pronounced on April 24, 1973—by a razor-thin majority of 7:6—that although Parliament had the power to amend any part of the Constitution of India, it could not use this power to alter or destroy the “basic structure” of the Constitution. Considering the salience of the issue, the Supreme Court had constituted a 13-judge bench that heard the case continuously for almost five months to flesh out the relationship between the three conventional branches of government. The judgment meant that all constitutional amendments made henceforth would have to pass the Supreme Court’s “basic structure filter”.

While the basic structure of the Constitution is not defined, Chief Justice S.M. Sikri identified what it constituted, according to him, in his judgment: the supremacy, secular character, and federal character of the Constitution; the republican and democratic form of government; and the separation of powers between the legislature, the executive, and the judiciary. The other judges on the bench prepared their own lists of what constituted the basic structure of the Constitution.

If one were to indulge in a counterfactual exercise, it would perhaps not be too fantastical to imagine India descending into an authoritarian form of governance with even the sanctity of the Constitution itself sacrificed at the altar of untrammelled political power if the judgment had allowed Parliament to amend any part of the Constitution.