Kesavananda Bharati and basic structure doctrine

Recently Kesavananda Bharati Swamiji of Edneer Mutt passed away at 80.

Keshavananda Bharati:

The seer, known as Srimad Jagadguru Sri Sri Sankaracharya Thotakacharya Kesavananda Bharati Sripadaganlavaru, headed the Edneer Mutt since 1961.

A proponent of the Advaita philosophy, the seer belonged to the lineage of Thotakacharya, one of the first four disciples of reformer Adi Sankaracharya.

He promoted a ‘Yakshagana Mela’ (troupe) for nearly 15 years and this Mela performed programmes in Karnataka and Kerala.

Know about Yakshagana Yakshagana is a traditional theatre form of Karnataka. It is a temple art form that depicts mythological stories and Puranas. It is performed with massive headgears, elaborate facial make-up and vibrant costumes and ornaments. Usually recited in Kannada, it is also performed in Malayalam as well as Tulu. It is performed with percussion instruments like chenda, maddalam, jagatta or chengila (cymbals) and chakratala or elathalam (small cymbals). Yakshagana is traditionally presented from dusk It is believed to have evolved from pre-classical music and theatre during the period of the Bhakti movement

Advaita Philosophy

It is a school of Hindu philosophy, and is a classic system of spiritual realization in Indian tradition.

Propounded by Shankaracharya (Adi Shankara) ( Born in Kaladi, Kerala in 788 CE.)

He established four Math (Monastery) at Shingeri, Puri, Dwaraka and Badrinath– for propagation of Sanathana Dharma.

Sri Hastamalakacharya as the Acharya of the Govardhana Math in the East.

Sri Sureshwaracharya as the Acharya of Sringeri Sharada Peetham in the South.

Sri Padmapadacharya as the Acharya of the Dwaraka Math in the West.

Sri Totakacharya as the Acharya of Jyotir Math in the North.

His major work is Brahmasutrabhasya (Bhashya or commentary on the Brahma Sutra).

His most famous stotra is Bhajagovinda Stotra. He also composed the Nirvana Shatakam.

The basic theme of Advaita is that the one unchanging entity (Brahman) alone is real, while changing entities do not have absolute existence. The world is Maya or illusion and only the Self is real. A person who realises this attains moksha (liberation of the soul).

The doctrine says that there is no difference between the Atman and the Brahman. The individual soul is not different from Brahman. Hence, its name Advaita meaning non-duality.

Kesavananda Bharati and basic structure doctrine

Exactly 47 years ago, the Supreme Court passed its landmark judgment in Kesavananda Bharati vs State of Kerala, considered among the most significant constitutional cases in India’s judicial history.

By a 7-6 verdict, a 13-judge Constitution Bench ruled that the ‘basic structure’ of the Constitution is inviolable, and could not be amended by Parliament. The basic structure doctrine has since been regarded as a tenet of Indian constitutional law.

The Constitution of a country is the fundamental law of the land. It is based on this document that all other laws are made and enforced. Under some Constitutions, certain parts are immune from amendments, and are given a special status compared to other provisions.

Since the Indian Constitution was first adopted, debates have raged as to the extent of power that Parliament should have to amend key provisions.

In the early years of Independence, the Supreme Court conceded absolute power to Parliament in amending the Constitution, as was seen in the verdicts in Shankari Prasad (1951) and Sajjan Singh (1965).

The reason for this is believed to be that in those initial years, the apex court had reposed faith in the wisdom of the then political leadership, when leading freedom fighters were serving as Members of Parliament.

In subsequent years, as the Constitution kept being amended at will to suit the interests of the ruling dispensation, the Supreme Court in Golaknath (1967) held that Parliament’s amending power could not touch Fundamental Rights, and this power would be only with a Constituent Assembly.

The tussle between Parliament and the judiciary

In the early 1970s, the government of then Prime Minister Indira Gandhi had enacted major amendments to the Constitution (the 24th, 25th, 26th and 29th) to get over the judgments of the Supreme Court in RC Cooper (1970), Madhavrao Scindia (1970) and the earlier mentioned Golaknath.

In RC Cooper, the court had struck down Indira Gandhi’s bank nationalisation policy, and in Madhavrao Scindia it had annulled the abolition of privy purses of former rulers.

All the four amendments, as well as the Golaknath judgment, came under challenge in the Kesavananda Bharati case– where relief was sought by the religious figure Swami Kesavananda Bharati against the Kerala government vis-à-vis two state land reform laws.

Since Golaknath was decided by eleven judges, a larger bench was required to test its correctness, and thus 13 judges formed the Kesavananda bench.

Noted legal luminaries Nani Palkhivala, Fali Nariman, and Soli Sorabjee presented the case against the government.

The judgment in Kesavananda Bharati

The Constitutional Bench, whose members shared serious ideological differences, ruled by a 7-6 verdict that Parliament should be restrained from altering the ‘basic structure’ of the Constitution.

The court held that under Article 368, which provides Parliament amending powers, something must remain of the original Constitution that the new amendment would change.

The court did not define the ‘basic structure’, and only listed a few principles — federalism, secularism, democracy — as being its part. Since then, the court has been adding new features to this concept.