Kesavanand Bharti vs the State of Kerala, more known as the Fundamental Rights case, as decided by the Supreme Court of India, way back in 1973, has again come into focus, due to the death of Swami ji. I pay my respectful tribute to Swami ji. This case, without doubt, brought a paradigm change in judicial history. It is the longest judgement by the largest bench till date. However, with the greatest of deference, it must be said that it is totally erroneous judgment and therefore, needs to be revisited and reconsidered. Firstly, this case was not decided by all 13 judges of the bench as it was signed only nine judges. Four judges outrightly refused to sign on the judgement.
Thus, the wafer-thin majority of 7:6 in this judgement was obtained by dubious means. Chief Justice S M Sikri wrote a summary on behalf of the judges to assert the principle of the basic structure, which was dealt at length by Justice H R Khanna. There is no concept of writing the summary of the judgement and hence the ratio decidendi is missing. Every judge is supposed to write his/ her own judgement or concur with the judgement authored by a fellow judge. But how can one judge write the summary of the judgement?
Out of nine judges, who signed on the judgement, two had categorically spoken about the supremacy of the Parliament, which had unfettered powers to amend the constitution. Since Chief Justice Sikri was to retire in a day so the judges could not get time to write their own independent judgement. It was the reason that four of the judges did not at all append their signatures on the judgement. So, how can it be treated to be a bench of 13 judges? Even otherwise also, it is the Will of the people that are represented through Parliament, which is supreme and that cannot be shackled. Courts cannot usurp or appropriate the powers of Parliament from legislating any law which reflects the people’s Will. Unfortunately, this tendency has more grown in the courts after the Kesavanand Bharti case.
The concept of ‘basic structure’ is very vague and ambiguous. We find that it has been increasing like the ‘Saari of Draupadi’ depending on the caprices of the judges. Here is a hypothetical question if some people say that Westminster form of democracy is unfit for this country and they seek the vote of the public of the country on this plank itself. Suppose for a moment that the overwhelming majority positively responds to in favour of discarding the Westminster form of democracy. Then can anybody stop them from changing the so-called basic structure of the constitution?
This theory of ‘basic structure’ is hogwash and fallacious theory. The constitution is a living organism and it has to constantly evolve itself as per the changing social, economic and political needs of the people. The scientific and technological developments must provide the push to the constitution, which cannot remain tethered to the rigidity. Hence, the basic structure does not fall in the domain of the Courts, it is the sole prerogative of the Parliament. What we have seen in the NJAC case is nothing but the negation of the Will of the people. The Parliament will have to take a call to ensure that the freedom obtained after a long struggle and sacrifices of countless heroes remains well preserved. It cannot be left to be the subject matter of the skullduggery of the judges and the obfuscation created by the luxury-loving advocates.