The man behind the one of the most referred Supreme Court judgement, Kesavananda Bharati who had challenged the Kerala land reform law –because of its implication was falling on the land of his Ashram– died on Sunday. The case has eventually led to the landmark Supreme Court judgement that laid down that parliament cannot alter the basic structure of the constitution.
It is widely hailed as a judgment which saved the Indian democracy since it gave a powerful weapon to fight majoritarianism. The case was heard by a record 13-member bench for 68 days and the 7-6 verdict was delivered on April 24, 1973.
Senior advocate Kaleeswaram Raj told The Telegraph on Sunday: “The 1973 judgment is an ideological and theoretical weapon against majoritarianism and electoral populism. It is a safeguard against the majoritarian onslaught that tries to destroy the very base of Indian democracy.”
“It added something very important to the text of the Constitution — the basic structure. Neither in the Constituent Assembly debates nor in the draft of the fundamental law would one find such a phrase. The Constitution of India lacked such a phrase, or omitted it willfully, as many believe,” Raj who practices in the Supreme Court added.
Bharati was the pontiff of Edneer Mutt in Kasaragod in north Kerala. As the Supreme Court pronounced the judgement against Bharati many believed that the court did not show the faith of providing sweeping powers to elected representatives.
But the course was soon reversed when Indira Gandhi imposed the Emergency in 1975 and through adding 4th clause in the 39th Amendment which was to save the offices of the President, Vice President, Prime Minister and the Speaker beyond the ambit of the courts.
However, the clause was eventually struck down and “the doctrine of basic structure” restored. The esteemed jurist, Nani Palkhivala was given credit for enlarging the scope of the argument which triggered this landmark judgement.
Raj further added: “I would call the judgment the first predominant instance of judicial activism in India. It added something very important to the text of the Constitution — the basic structure. Neither in the Constituent Assembly debates nor in the draft of the fundamental law would one find such a phrase.”
Though the seer did not get the respite he sought, the case became a landmark as it led to the cutting of Parliament’s powers to amend the Constitution and simultaneously gave the judiciary the authority to review any amendment.
–With Inputs from The Telegraph
