Kesavananda Bharati Judgment Played A Pivotal Role In Developing Socio-Economic Justice, Independence Of Judiciary : Justice BR Gavai

Citing landmark judgments and emphasizing the pivotal role of the Kesavananda Bharati case in the evolution of socio-economic justice and the independence of the judiciary in the country, Justice B.R. Gavai delivered a lecture commemorating the 50th anniversary of the Kesavananda Bharati judgment. The lecture was delivered on the occasion of celebrating the 40th anniversary of the establishment of the High Court of Bombay in Goa.

“Though all of us know that the case of Kesavananda Bharati is known for establishing the basic structure doctrine in this country, another aspect which needs to be considered is that this is the first judgement which has played a pivotal role in marching towards social and economic justice as envisaged by framers of the constitution,” he said.

Commencing his speech with the historical background, he mentioned that during the Constitutional Assembly debates, Dr. Ambedkar faced criticism from both sides regarding the provision of the power to amend. Some argued that it was too liberal, while others believed it to be too stringent. Justice Gavai said that Dr. Ambedkar justified the provisions for constitutional amendment saying that the constitution cannot be static or merely a government document. The reason being, future generations may encounter different needs and challenges, so they must be allowed the freedom to amend the constitution accordingly, Dr. Ambedkar added.

He further elaborated that Dr. Ambedkar emphasized that the Constitution should not be rigidly tied to its original form but should have the capacity to adapt to the changing times. However, Dr.Ambedkar also expressed concern that allowing the Parliament to amend the constitution too liberally might lead to political parties in power using it as a tool to further their own political agendas, said Justice Gavai.

He further referred that at the same time Dr. Ambedkar believed that, “constitution cannot be allowed to be amended liberally because today constitutional assembly is sitting as an independent body without any political agenda which can provide a strong constitution for the generations to come and therefore it will be providing a strong constitution for generations to come and if we enable the parliament to amend the constitution liberally there is a strong possibility that the political party who is in power will use it as an umbrella or as a weapon to put its political agenda into action.”

Referring to various landmark judgments, including Shankari Prasad v. UOI, Sajjan Singh v. State of Rajasthan, and I.C. Golakhnath & Ors. v. State of Punjab & Anr., Justice Gavai traced back the evolution of the "basic structure doctrine" in the Kesavananda Bharati case.

Underlining the importance of Kesavnanda Bharati case he said, “It is a milestone in legal history wherein it was held that though the Parliament has power to take away the fundamental right but no power to amend the basic structure. The specific features which are laid down in the judgement as the basic structure are: supremacy of constitution, secular character, the republic and democratic form of the government, democracy, executive, legislature, judiciary, federal structure of the Constitution, securing the dignity of the individual while maintaining the unity and integrity of nation, duty to construct a welfare state in accordance with the mandate of the directive principles…”

He elaborated that prior to Kesavananda Bharati, the view taken by the Supreme Court in the cases were that when there is a dispute between Fundamental Rights and Directive Principles of State Policies (DPSP), it is the Fundamental Rights that will prevail over DPSP. It is for the first time in Kesavananda Bharati that we find almost all the judges have spoken for giving equal importance to DPSP and fundamental rights. It was held that DPSP and Fundamental Rights are together, the soul of the constitution, he added.

Citing Minerva Mills Ltd. and Ors. v. Union Of India, he quoted Justice YV Chandrachud wherein he said, “Fundamental Rights and DPSP are like two wheels of golden chariot of the Constitution, if we snap one the other will lose its efficacy.”

Justice Gavai further emphasized that the stance of all Courts after the Kesavananda Bharati case regarding the importance of DPSP and socio-economic justice has been very positive.He stated that various labour enactments have been deemed valid by different Courts in multiple judgments, even though they may have violated Fundamental Rights.

Justice Gavai further cited landmark judgements on independence of judiciary. Referring to S.P. Gupta v. Union of India, Supreme Court Advocates on Record Association (SCARA) v.Union of India, In re: Special Reference 1 of 1998 he highlighted that these judgements have played an important role in ensuring the independence of the judiciary.

“Therefore, we find that these judgements have played an important role in ensuring the independence of the judiciary. Finally, as all of us know that the government brought judicial appointment appointment act and amended the Constitution that was also set aside by for the reason that involvement of executive in the appointment of judiciary is infringed upon Independence of judiciary and also violated the supremacy of judiciary as far as appointment of judges are concerned. It was held that separation of judiciary from executive is one of the important facet of basic features of the Constitution of India,” he added.

While concluding the speech he said, “and therefore we find that judgement of Kesavananda Bharati has stood the test of time and for the last 50 years we are celebrating...we find that there are some criticism that it requires reconsideration but it is the judgement of Kesavananda Bharati which held that basic structure of the constitution has to be maintained, the independence of judiciary and to maintain balance between Fundamental Rights and DPSP.”

It is pertinent to note that Vice President Jagdeep Dhankhar had recently criticised the Kesavananda Bharati judgement, saying it set a wrong precedent. However, Chief Justice of India Dr DY Chandrachud has called the ‘basic structure doctrine’ a north star “which guides and gives a certain direction to the interpreters and implementers of the Constitution when the path ahead is convoluted.”

Justice Gavai ended his speech by quoting Dr. Ambedkar’s speech which he gave on 25th January 1950 while representing the final draft of the Constitution.

“He said, " On 26th January, 1950 we are entering into an era of contradictions, he said we have ensured ourselves the promise of liberty, equality and fraternity. He further said, that liberty, equality fraternity not independently but they are together the soul of the constitution. If we only provide for liberty the stronger will overpower the powerless, if we provide for only for equality then there will be no initiatives for a man to excel, therefore liberty and equality together are the soul of the constitution for ensuring that liberty and equality are provided together then fraternity has to act as a policeman...we are entering into contradictions as on one hand we are providing one person one vote, one value, so far economic justice is concerned the entire wealth is concentrated in few hands the vast majority lives in abject poverty, he said. So far as social justice is concerned we have a society which is divided into four compartments and such compartment which are so closed that one person cannot enter into another, he said if you do not make an attempt to eradicate these inequalities then democracy will collapse like a house of cards.”

At last, he said “It is the judgement of Kesavananda Bharati which ensured that the three wings of the constitution (executive, legislature, judiciary) should act in their own fields. If we see in the last 50 years...and compare our democracy with the neighbouring country we will find that we are far more superior to them, it is all because of our constitution makers and authors of Kasavnanda Bharati judgement.”