Preliminary Details of the Case

Court: Supreme Court of India
Bench: 13 Judges Case Citation: (1973) 4 SCC 225
Date of Judgement: 24 April 1973
Petitioner/Appellant: Kesavananda Bharati
Respondent: State of Kerala
Constitution Involved: Constitution of India
Important Articles Involved: Articles 13, 368, 31C

Abstract

The Kesavananda Bharati case established the basic structure doctrine of the Indian Constitution. By a thin majority of 7:6, the Supreme Court held that parliament has the power to amend any provision of the Constitution under Article 368, but this amending power does not enable parliament to alter or destroy the basic structure or framework of the Constitution. The basic structure constitutes the core fundamental features that provide identity and coherence to the Constitution. This historic case marked a defining moment in Indian constitutional law by upholding rule of law and limiting arbitrary exercise of power by parliament through judicial review.

Keywords: basic structure, constitutional amendment, parliament’s amending power, judicial review, rule of law

Facts of the Kesavananda Bharati Case

In 1970, Swami Kesavananda Bharati, head of a Hindu mutt in Kerala, challenged land reform laws enacted by the Kerala government that imposed restrictions on management of religious properties. The challenge was made under Article 26 of the Constitution that protects the right to manage religiously-owned property.

The main legal question raised was whether parliament’s power to amend the Constitution under Article 368 was unlimited and extends to altering fundamental rights. Article 368 provides the procedure for amendment but does not specify any limitations on the amending power.

A 13-judge Constitution Bench of the Supreme Court, the largest ever constituted at the time, heard arguments in the case. The key issues involved were the scope and extent of parliament’s amending power, whether it was subject to any implied limitations, and if fundamental rights could be abridged or taken away by a constitutional amendment.

By overruling the Golaknath case (1967), parliament sought to regain unlimited amending powers through the 24th Constitutional Amendment in 1971. Other amendments like 25th and 29th were also enacted to overcome previous judgements that had struck down land reform and bank nationalization laws.

Legal Issues Raised in Kesavananda Bharati Case

The main legal issues raised before the Court were:

• Scope of amending power under Article 368 – whether unlimited or subject to implied limitations.
• Whether parliament can amend, abrogate or alter fundamental rights under Part III.
• Nature of Article 368 – does it confer power or only procedure for amendment.
• Validity of 24th, 25th and 29th Constitutional Amendment Acts.
• Constitutional validity of Article 31C inserted by Section 3 of 25th Amendment.

Petitioner’s Arguments

On behalf of the petitioner, it was argued that:

• Article 368 does not confer power to alter, amend or abrogate fundamental rights or basic features of the Constitution.[1]
• The word ‘amendment’ implies that the identity or framework of the Constitution cannot be changed or destroyed by the exercise of amending power.[2]
• Article 368 merely prescribes the procedure for amendment. The power to amend flows from the Constitution itself and is subject to inherent and implied limitations.[3]
• Parliament cannot exercise Article 368 powers to damage or emasculate the basic elements or fundamental principles of the Constitution.[4]
• Constitutional amendments under Article 368 are ‘law’ within the meaning of Article 13. An amendment violating fundamental rights would be void.[5]

Respondent’s Arguments

On behalf of the respondents, it was contended that:

• Article 368 confers unlimited and absolute power on parliament to amend any part of the Constitution without any exception.[6]
• The term ‘amendment’ in Article 368 encompasses the power to add, alter, repeal or abrogate any provision of the Constitution.[7]
• The only limitations on the amending power are procedural as laid down in Article 368. There are no implied or inherent limitations.[8]
• Parliament is fully competent to abrogate or abolish fundamental rights by a constitutional amendment in exercise of its constituent power.[9]
• Parliament represents the supreme will of the people and can reshape the fundamental law according to the requirements of the times.[10]

Related Legal Provisions and Doctrines

The relevant legal concepts and doctrines involved were:

• Basic structure doctrine – certain basic features of the Constitution are unamendable.[11]
• Article 13(2) – Laws inconsistent with or in derogation of fundamental rights are void.[12]
• Article 368 – Power of parliament to amend the Constitution and procedure therefor.[13]
• Doctrine of implied limitations on amending power as laid down in I.C. Golak Nath vs State of Punjab (1967).[14]
• Principle of constitutional supremacy and rule of law.[15]
• Theory of prospective overruling as propounded in Golak Nath case.[16]
• Principle of separation of powers between legislature, executive and judiciary.[17]

Judgement (Ratio Decidendi) of Kesavananda Bharati Case

By a thin majority of 7:6, the Court held that:

• Parliament has wide powers to amend the Constitution under Article 368 but it does not have absolute power to alter or destroy the basic structure or framework of the Constitution. [18]
• The Constitution contains certain basic features that are its foundational principles giving it identity and overall coherence. These constitute the basic structure which cannot be abrogated even by exercise of amending power under Article 368. [19]
• Though there are no express limitations on the amending power, there are implied limitations arising from the very nature of the Constitution. The basic structure binds and limits parliament’s amending powers. [20]
• Principles like supremacy of the Constitution, republican and democratic form of government, secular character of the Constitution, separation of powers etc. are part of the basic structure and cannot be amended. [21]
• Judicial review is part of basic structure. Article 31C was unconstitutional since it excluded judicial review and violated basic structure. [22]
• 24th and 29th Amendments were held valid. Section 2 and first part of Section 3 of 25th Amendment were upheld while the second part of Section 3 was struck down. [23]

Majority upheld Golak Nath prospectively and overruled it only for future amendments. Constitutional amendments were to be tested on the anvil of basic structure from Kesavananda Bharati onwards.

Though there were concurrent findings on certain broad principles, there was divergence over the concept, scope and content of the basic structure doctrine due to conflicting reasoning given by different judges. The case did not deliver a single unanimous ratio decidendi but laid down guiding principles.

Conclusion and Comments

Kesavananda Bharati was a significant milestone in the evolution of constitutional law and judicial review in India. The case marked a power shift in favor of the judiciary by checking unfettered parliamentary power and upholding rule of law and supremacy of the Constitution.

The doctrine of basic structure strengthened judicial review of constitutional amendments by subjecting parliament’s amending powers to inherent limitations. It enabled the Supreme Court to strike down any amendment altering or violating the basic structure of the Constitution. This ensured that the core foundational principles were protected despite changing Needs and circumstances.[24]

However, critics argue that the doctrine is undemocratic and hinders social reform by restricting parliament’s powers. Lack of clarity on basic structure allows for subjective interpretation by judges. Conflicting opinions in Kesavananda have resulted in confusion and uncertainty regarding the scope and application of the doctrine.[25]

Over the years, the doctrine has been reaffirmed in cases like Indira Gandhi v. Raj Narain, Minerva Mills v. Union of India etc. and applied to strike down amendments that violated democracy, judicial independence, secularism and other basic features. It remains a cornerstone of constitutional interpretation.

The innovative judicial craftsmanship and constitutional statesmanship demonstrated by the Supreme Court in Kesavananda Bharati significantly bolstered the Constitution’s resilience and durability. It established rule of law and constitutional supremacy as enduring basic norms.[26]

References

[1] Kesavananda Bharati v State of Kerala, para 296, 316.

[2] Ibid, para 567.

[3] Ibid, para 787.

[4] Ibid, para 1256.

[5] Ibid, para 233.

[6] Ibid, para 676.

[7] Ibid, para 682.

[8] Ibid, para 672.

[9] Ibid, para 701.

[10] Ibid, para 700.

[11] Ibid, para 316.

[12] The Constitution of India, Article 13(2).

[13] The Constitution of India, Article 368.

[14] I.C. Golak Nath v State of Punjab, AIR 1967 SC 1643.

[15] Kesavananda Bharati, para 811.

[16] Ibid, para 1643.

[17] Ibid, para 686.

[18] Ibid, para 316.

[19] Ibid, para 567.

[20] Ibid, para 787.

[21] Ibid, para 29.

[22] Ibid, para 1256.

[23] Ibid, Headnote.

[24] Granville Austin, Working A Democratic Constitution (1999).

[25] Pratap Bhanu Mehta, ‘The Inner Conflict of Constitutionalism: Judicial Review and the Basic Structure’ in India’s Living Constitution (2002).

[26] UPENDRA BAXI, THE INDIAN SUPREME COURT AND POLITICS (Eastern Book Company, 1980).