“Kesavananda Bharati — the petitioner who saved democracy, but lost his case in Supreme Court” reads the heading of an article from a prominent news organisation. Another news organisation proclaims “Hindu seer Kesavananda Bharati, who ensured basic structure of Constitution cannot be altered, dies”. These are just two of the countless articles that have popped up on the internet in the aftermath of the death of Head of Jagadguru Shankaracharya Samsthanam Edneer Mutt of Shankaracharya tradition.

Shri Keshvananda Bharati came into national recognition when he challenged the Kerala Government’s attempt to seize the Edneer Mutt’s property through Kerala Land Reforms act in The Supreme Court. The case eventually took a wider form and became a debate on the Power of the Parliament to amend the Constitution.

While the verdict that came out of the 13 judge bench of the Supreme Court did not protect the Property Rights of the Mutt, it did help bring about what is known as the “Basic Structure Doctrine” of the Indian Constitution. This doctrine limits the extent to which the Parliament can amend the Constitution. It states that the Constitution of India has a basic structure which cannot be changed even by the Parliament. Secularism, Federalism, Judicial review, Holding Free and Fair elections, Individual Freedoms, and the nature of state as a Welfare State, are some features that are part of the Basic Structure. This list is said to be “not exhaustive”, meaning, the Supreme Court can add more features to it as and when it sees fit.

However, the much celebrated Basic Structure Doctrine has a few problems. While the Basic Structure Doctrine supposedly prevents the Parliament (which is a democratic body) from enjoying unrestricted power, it gives unrestricted power to the Supreme Court (which is an undemocratic body). The Basic Structure is vaguely defined non-exhaustive list. The features that it includes, namely Secularism and Welfare State are also vague. They mean different things to different people. This gives the Supreme Court 1 power to define Basic Structure according to its own liking and extend the extent of its power however it likes. This also poses an important question. Can the Supreme Court preside over a decision to define the powers of the Parliament, and by proxy, a decision to define the powers of the Supreme Court itself ? This is a conflict of Interest.

Another problem with the Basic Structure Doctrine is the very presumption that there is a basic structure of the Constitution and the Founders of the Constitution meant for there to be a Basic Structure. But if that were the case, then they would’ve said so explicitly. A few more lines wouldn’t have made a difference to the weight of what was already a gigantic document. But it would’ve given us a much needed clarity.

One can argue that perhaps they meant for the Preamble to be the Basic Structure, and what they couldn’t put in the Preamble (due to unavailability of space), they put that with the adjective “fundamental”. And this argument would’ve been valid, had the fundamental rights not been violated through the First Amendment, not on Day 0, but on Day -1 in 1951, before even the first General election was held. If they can change their mind after just one year, why can’t we change our minds after 70 years ? Even the Preamble wasn’t spared. The sanctity of the Preamble was violated with the addition of words “secular” and “socialist” to it. Additionally, the words “secular” or “welfare state” or “socialist”, which are supposedly part of the Basic Structure, were not even mentioned in the Constitution by the founders. In fact, the founders explicitly rejected these words. Claiming that “even though they’re not part of the Constitutional Document, the founders meant for us to interpret the constitution this way”, we’d have to assume that they were playing riddles with us, which is very unlikely. Basically, you say whatever suits your agenda, call it the sacred wisdom of the Founders of the Constitution, and interpret it as the Basic structure.

So, what is THE Problem with the Basic structure doctrine ? The fact that there is no basic structure. If there were a basic structure, it was already crushed in 1951 and in 1976 thereafter. We have given unrestricted power to an undemocratic body of the state i.e. the Supreme Court in the name of a non-existent entity.

Shots were fired at Democracy from a gun sitting on the shoulders of now Swargiya Shri Keshvananda Bharati. These shots severely wounded Democracy. His Mutt lost rights to its property and he gained a legacy that one wonders…., Did he even desire such a legacy ?

DISCLAIMER: The author is solely responsible for the views expressed in this article. The author carries the responsibility for citing and/or licensing of images utilized within the text.