Authored By: Laxita Raju Hawelikar
ILS Law College , Pune
CASE NAME: KESAVANANDA BHARATI v. STATE OF KERALA (1973)
Citation: His Holiness Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr., AIR 1973 SC 1461; (1973) 4 SCC 225; Writ Petition (Civil) 135 of 1970
Court: Supreme Court of India
Bench: 13-Judge Constitution Bench (Largest in Indian judicial history)
Chief Justice: S.M. Sikri
Other Judges: J.M. Shelat, K.S. Hegde, A.N. Grover, A.N. Ray, P. Jaganmohan Reddy, D.G. Palekar, H.R. Khanna, K.K. Mathew, M.H. Beg, S.N. Dwivedi, A.K. Mukherjee, and Y.V. Chandrachud
Date of Judgment: April 24, 1973
Decision: 7:6 majority upholding the Basic Structure Doctrine
- INTRODUCTION
The Kesavananda Bharati case stands as the most celebrated and consequential judgment in the history of Indian constitutional jurisprudence. This landmark decision fundamentally transformed the constitutional landscape of India by introducing the doctrine of “Basic Structure,” which established that while Parliament possesses extensive powers to amend the Constitution under Article 368, it cannot alter or destroy the Constitution’s fundamental framework and essential features. This judgment resolved the long-standing conflict between parliamentary sovereignty and judicial supremacy, ultimately safeguarding the Constitution from potential legislative overreach while preserving democratic flexibility for necessary reforms. The case was heard for an unprecedented 68 days from October 31, 1972, to March 23, 1973, with arguments presented by constitutional luminaries including Nani Palkhivala for the petitioners and H.M. Seervai for the respondent state. The resulting 703-page judgment comprised eleven separate opinions, reflecting the complexity and significance of the constitutional questions at stake.
2. FACTUAL BACKGROUND
2.1 The Petitioner and the Dispute
His Holiness Kesavananda Bharati was the chief pontiff and senior spiritual leader of the Edneer Mutt (also spelled Edaneer Mutt), a Hindu religious monastery located in the Kasaragod district of Kerala. The Mutt, a centuries-old religious institution, owned substantial agricultural land which was managed for religious and charitable purposes. The Kerala State Government, as part of its agrarian reform agenda, enacted the Kerala Land Reforms Act, 1963, which was subsequently amended in 1969 and 1971. These legislative measures imposed severe restrictions on the ownership, management, and alienation of
property held by religious institutions, including provisions for compulsory acquisition of land exceeding prescribed ceiling limits.
In February 1970, Swami Kesavananda Bharati challenged these land reform enactments before the Supreme Court of India under Article 32 of the Constitution, which guarantees the right to constitutional remedies. The petition was filed under Article 26 of the Constitution, which protects the right of religious denominations to manage their own affairs in matters of religion, including the administration of property held for religious purposes. The renowned jurist Nanabhoy Palkhivala convinced the pontiff to expand the scope of the challenge beyond Article 26 to encompass broader constitutional questions regarding the amending power of Parliament.
2.2 Historical Context and Preceding Cases
The Kesavananda Bharati case did not emerge in a vacuum but was the culmination of a series of constitutional confrontations between the judiciary and the legislature during the 1950s and 1960s. The roots of this conflict can be traced to the tension between the commitment to fundamental rights enshrined in Part III of the Constitution and the socialist transformation envisaged in the Directive Principles of State Policy contained in Part IV.
Shankari Prasad v. Union of India (1951): The Supreme Court held that Parliament’s power to amend the Constitution under Article 368 extended to fundamental rights, and such amendments were not subject to judicial review under Article 13.
Sajjan Singh v. State of Rajasthan (1965): The Court reaffirmed the Shankari Prasad decision, though Justice Mudholkar dissented, suggesting that there might be implied limitations on Parliament’s amending power.
I.C. Golaknath v. State of Punjab (1967): In a historic 6:5 decision, the Supreme Court overruled its earlier judgments and held that Parliament could not amend Part III of the Constitution containing fundamental rights. This decision created a constitutional impasse as it completely barred Parliament from amending fundamental rights, even for implementing progressive social reforms.
In response to the Golaknath judgment, Parliament enacted the 24th Constitutional Amendment Act in 1971, which sought to restore Parliament’s power to amend fundamental rights. Article 13(4) was inserted to clarify that constitutional amendments are not “laws” within the meaning of Article 13, and therefore not subject to judicial review on grounds of violating fundamental rights. Article 368 was also amended to expressly state that Parliament had the power to amend any provision of the Constitution, including fundamental rights, and to make it mandatory for the President to give assent to constitutional amendment bills.
Simultaneously, Parliament enacted the 25th Amendment Act, which amended Articles 31 and 39 to give primacy to Directive Principles over the right to property, and introduced Article 31-C to shield laws implementing certain Directive Principles from judicial scrutiny. The 29th Amendment Act placed the Kerala Land Reform Acts in the Ninth Schedule of the Constitution, thereby granting them immunity from judicial review.
It was in this charged constitutional atmosphere that the Kesavananda Bharati case reached the Supreme Court, requiring the Court to definitively resolve the fundamental question: What is the extent and nature of Parliament’s power to amend the Constitution?
3. LEGAL ISSUES
The Supreme Court was called upon to adjudicate several interrelated constitutional questions of far-reaching significance:
- Extent of Amending Power: Whether Parliament’s power to amend the Constitution under Article 368 is absolute and unlimited, or whether there are inherent limitations on this power?
- Validity of Constitutional Amendments: Whether the 24th, 25th, and 29th Constitutional Amendment Acts were constitutionally valid and within the competence of Parliament?
- Fundamental Rights vs. Directive Principles: Whether laws enacted to implement Directive Principles of State Policy could abrogate or abridge fundamental rights guaranteed under Part III of the Constitution?
- Review of Golaknath: Whether the Supreme Court’s decision in I.C. Golaknath v. State of Punjab (1967), which completely prohibited amendments to fundamental rights, should be reconsidered?
- Judicial Review: Whether judicial review of constitutional amendments is permissible, and if so, on what grounds?
- Meaning of “Amendment”: What is the true meaning and scope of the word “amendment” in Article 368 of the Constitution?
- Constitutional Structure: Whether the Constitution has an underlying structure or framework that is inviolable and cannot be destroyed even by way of constitutional amendment?
4. ARGUMENTS ADVANCED
4.1 Petitioner’s Arguments
The petitioners, led by senior advocate Nani Palkhivala, presented a sophisticated constitutional argument that sought to establish inherent limitations on Parliament’s amending power:
Violation of Fundamental Rights: The 24th, 25th, and 29th Amendments violated the fundamental rights guaranteed under Articles 14 (equality before law), 19(1)(f) (right to property, which existed at that time), 25 (freedom of religion), and 26 (right to manage religious affairs) of the Constitution. These amendments were not mere modifications but
amounted to abrogation of fundamental rights, which contradicted the very purpose of enshrining such rights in a written Constitution.
Limits on Amending Power: The power to “amend” the Constitution does not extend to altering, destroying, or abrogating its basic structure or essential features. The word “amendment” implies modification or improvement, not destruction or replacement. Therefore, Article 368 must be interpreted as conferring power to amend within the broad framework and basic structure of the Constitution, not unlimited power to rewrite it entirely.
Basic Structure Doctrine: Certain fundamental features constitute the basic structure or framework of the Constitution, including democracy, federalism, secularism, separation of powers, judicial review, supremacy of the Constitution, rule of law, and fundamental rights. These features are so integral to the Constitution that they cannot be amended or destroyed even by following the procedure prescribed in Article 368. To permit their alteration would be to replace the Constitution with an entirely different document.
Judicial Review is Inviolable: Judicial review is an essential feature of the Constitution flowing from its supremacy and the rule of law. The Constitution is the supreme law, and the judiciary must have the power to determine whether legislative or executive actions, including constitutional amendments, conform to constitutional requirements. Removing or curtailing judicial review would undermine the very foundation of constitutional governance.
Harmonious Construction: Fundamental Rights (Part III) and Directive Principles of State Policy (Part IV) are complementary parts of the Constitution and must be harmoniously construed. One cannot be given absolute primacy over the other. The 25th Amendment’s attempt to give unchecked supremacy to Directive Principles over fundamental rights would destroy this constitutional balance.
Intent of Framers: The founding fathers of the Constitution intended to create a Constitution that would be adaptable but not destructible. They established a difficult amendment procedure under Article 368 to balance the need for constitutional flexibility with the requirement of stability and continuity.
4.2 Respondent’s Arguments
The State of Kerala, represented by eminent jurist H.M. Seervai, and the Union of India advanced the following counter-arguments:
Absolute Amending Power: Article 368 grants Parliament unlimited and absolute power to amend any provision of the Constitution, including fundamental rights. The plain language of the Article does not impose any restrictions or limitations on the amending power. If the framers had intended to place any restrictions, they would have expressly stated so in the Constitution.
Supremacy of Parliament: In a democratic polity, the elected representatives of the people must have the sovereign power to amend the Constitution to meet changing social, economic, and political circumstances. Parliament, being directly accountable to the people, is best
positioned to determine what amendments are necessary for the nation’s progress and development.
Judicial Overreach: Imposing limitations on Parliament’s amending power through judicial interpretation would amount to judicial legislation and usurpation of legislative functions. The doctrine of separation of powers requires the judiciary to respect the domain of the legislature. Courts cannot create restrictions that are not found in the constitutional text.
Flexibility Required: The Constitution is a living document that must evolve with changing times. Rigid restrictions on the amending power would make the Constitution inflexible and unable to respond to the dynamic needs of Indian society. The extensive amendment process already built into Article 368 provides adequate safeguards against hasty or ill-considered
amendments.
Social Justice Objectives: The challenged amendments were enacted to implement crucial social welfare objectives and to effectuate distributive justice as envisaged in the Directive Principles. Land reforms were essential for addressing agrarian inequality and poverty. Judicial impediments to such progressive legislation would frustrate the constitutional commitment to establishing a socialist pattern of society.
Golaknath Should Stand: The Golaknath decision, which prohibited amendments to fundamental rights, represented sound constitutional interpretation and should be upheld. Alternatively, if Golaknath was to be overruled, Parliament should be recognized as having absolute and unlimited amending power.
5.JUDGMENT AND REASONING
5.1 Majority Opinion (7:6 Decision)
The Supreme Court delivered a historic judgment on April 24, 1973, with the majority comprising Chief Justice S.M. Sikri, and Justices J.M. Shelat, K.S. Hegde, A.N. Grover, P. Jaganmohan Reddy, H.R. Khanna, and B.K. Mukherjea. The majority introduced and established the doctrine of “Basic Structure,” which fundamentally reshaped Indian constitutional law.
Parliament’s Power to Amend: The Court overruled the Golaknath decision and held that Parliament does possess the power under Article 368 to amend any provision of the Constitution, including fundamental rights. The 24th Amendment was upheld in its entirety, validating Parliament’s power to amend Part III of the Constitution.
The Basic Structure Doctrine: While affirming Parliament’s extensive amending power, the Court introduced a crucial limitation by holding that Parliament cannot use its amending power to alter, damage, destroy, or abrogate the “basic structure” or “basic features” or “essential features” or “fundamental framework” of the Constitution. The Court held that the power to “amend” does not include the power to completely rewrite or replace the Constitution.
Rationale for Basic Structure: The majority reasoned that the Constitution is supreme, not Parliament. The Constitution derives its authority from the people of India, and the amending power conferred on Parliament is a delegated and limited power, not constituent power. The Constitution has an identity and a basic framework that must be preserved. To permit Parliament to destroy this basic structure would be to allow the donee of limited power to exercise unlimited power, which is conceptually impossible.
Components of Basic Structure: While the judges did not exhaustively enumerate all elements of the basic structure, they identified several features that form part of it:
- Supremacy of the Constitution
- Republican and democratic form of government
- Secular character of the Constitution
- Separation of powers among the legislature, executive, and judiciary • Federal character of the Constitution
- Unity and integrity of the nation
- Welfare state (Directive Principles)
- Judicial review
- Freedom and dignity of the individual
- Parliamentary system
- Rule of law
- Harmony and balance between Fundamental Rights and Directive Principles • Equality of status and opportunity
- Free and fair elections
- Independence of the judiciary
- Effective access to justice
- Limited power of Parliament to amend the Constitution
Judicial Review Preserved: The Court held that judicial review is an integral part of the basic structure and cannot be taken away by constitutional amendment. Courts have the power and duty to examine whether a constitutional amendment violates the basic structure, and if so, to declare it void.
Validity of Challenged Amendments: The 24th Amendment was upheld in its entirety. The 25th Amendment was partially upheld: while Parliament could amend Article 31 concerning property rights, the provision removing judicial review of the adequacy of compensation (Article 31(2)(b)) was struck down as violating basic structure. The Court validated the first
clause of Article 31-C (protecting laws implementing certain Directive Principles from challenge under Articles 14 and 19) but struck down the second clause which ousted judicial review entirely.
5.2 Test for Determining Basic Structure
The Court laid down that to determine whether a particular feature is part of the basic structure, one must examine:
- Whether the feature is so essential that without it the Constitution would lose its identity;
- Whether the feature is fundamental to the constitutional scheme;
- Whether the feature relates to the objectives set out in the Preamble;
- Whether removing or altering the feature would change the character of the Constitution.
The Court emphasized that the basic structure is not immutable or frozen in time. As the Constitution evolves, courts may identify additional features as being part of the basic structure based on contemporary constitutional values and requirements. However, once identified, such features cannot be destroyed by amendment.
5.3 Minority Opinion
The minority, comprising Justices A.N. Ray, D.G. Palekar, K.K. Mathew, M.H. Beg, S.N. Dwivedi, and Y.V. Chandrachud, dissented from the majority view. They held that:
- Parliament has unlimited power to amend the Constitution, including its fundamental features;
- The concept of basic structure lacks textual foundation in the Constitution;
- Imposing limitations on the amending power through judicial interpretation amounts to rewriting the Constitution;
- The amending procedure in Article 368 itself provides adequate safeguards;
- In a democratic system, the elected representatives must have supreme power to amend the Constitution.
The minority feared that the basic structure doctrine would lead to judicial supremacy and make the Constitution rigid and unamendable in crucial respects.
6.SIGNIFICANCE AND IMPACT
6.1 Constitutional Law
The Kesavananda Bharati judgment revolutionized Indian constitutional law and has had profound and enduring impacts:
Preservation of Constitutional Identity: The basic structure doctrine ensures that the Constitution maintains its fundamental character and identity despite numerous amendments. Since independence, India has enacted over 100 constitutional amendments, yet the core values and principles of the Constitution remain intact, largely due to this doctrine.
Check on Legislative Majoritarianism: The doctrine prevents temporary parliamentary majorities from making fundamental changes to the Constitution that could undermine democracy, secularism, federalism, or individual rights. It serves as a bulwark against constitutional dictatorship and protects minority rights against majoritarian excesses.
Judicial Supremacy in Constitutional Matters: The judgment established the Supreme Court as the ultimate interpreter and guardian of the Constitution. The power of judicial review cannot be taken away, and courts have the final say on whether a constitutional amendment violates basic structure.
Balance of Powers: The judgment struck a careful balance between parliamentary sovereignty and constitutional supremacy, between flexibility and stability, and between the need for progressive legislation and the protection of fundamental values. It recognized that the Constitution must be both stable and adaptable.
Evolution of Basic Structure: Subsequent judgments have identified additional components of the basic structure, demonstrating that the doctrine is not static but evolves with constitutional development:
- Indira Nehru Gandhi v. Raj Narain (1975): Free and fair elections
- Minerva Mills v. Union of India (1980): Limited amending power of Parliament itself; judicial review
- Waman Rao v. Union of India (1981): All amendments post-Kesavananda subject to judicial review
- S.R. Bommai v. Union of India (1994): Secularism; federalism
- I.R. Coelho v. State of Tamil Nadu (2007): Re-examination of Ninth Schedule laws • Indra Sawhney v. Union of India (1992): Equality
6.2 Comparative Impact
The basic structure doctrine has influenced constitutional jurisprudence beyond India’s borders. Courts in several Commonwealth countries have adopted or considered similar doctrines:
- Bangladesh: Expressly adopted the basic structure doctrine in Anwar Hossain Chowdhury v. Bangladesh (1989)
- Pakistan: Applied a similar doctrine in various judgments
- Malaysia: Courts have referred to the basic structure concept
- Nepal: The Constitution explicitly incorporates an unamendable basic structure • Belize: The Privy Council invoked basic structure principles
- Germany: Has a similar “eternity clause” protecting certain constitutional provisions
The doctrine has been studied and debated by constitutional scholars worldwide as an innovative mechanism for protecting constitutional fundamentals.
6.3 Practical Consequences
Protection of Democracy: The basic structure doctrine has prevented several attempts to undermine democratic governance. During the Emergency (1975-1977), when the 42nd Amendment attempted to curtail judicial review and fundamental rights, the doctrine provided the constitutional foundation for subsequently invalidating objectionable provisions.
Federalism Safeguards: The doctrine has protected the federal structure of the Constitution by preventing excessive centralization of power. States’ rights and autonomy have been preserved as part of the basic structure.
Judicial Independence: The independence of the judiciary has been secured as part of basic structure, preventing legislative attempts to control or dominate the judicial branch.
Rights Protection: Fundamental rights have been shielded from complete abolition or emasculation. While rights can be reasonably restricted or modified, their essential content cannot be destroyed.
Ninth Schedule Review: In I.R. Coelho v. State of Tamil Nadu (2007), the Supreme Court held that laws placed in the Ninth Schedule after April 24, 1973 (the date of Kesavananda judgment) are subject to judicial review if they violate basic structure. This brought hundreds of laws under potential scrutiny.
6.4 Criticisms and Debates
Despite its significance, the basic structure doctrine has faced criticism:
Democratic Concerns: Critics argue that unelected judges should not have the power to invalidate decisions of elected representatives regarding constitutional amendments. This raises questions about democratic legitimacy and accountability.
Textual Absence: The doctrine has no textual basis in the Constitution. Critics contend that courts have essentially rewritten the Constitution by reading in limitations that the framers did not explicitly include.
Uncertainty: The doctrine does not provide an exhaustive or definitive list of basic features. This creates uncertainty as to which features are protected and which are not. Different judges have identified different features as part of basic structure.
Judicial Supremacy: The doctrine gives the judiciary enormous power over constitutional development, potentially leading to judicial activism or overreach.
Rigidity: Some scholars argue that the doctrine makes the Constitution too rigid and prevents necessary constitutional evolution and adaptation.
Lack of Procedural Clarity: The judgment does not clearly specify the procedure for determining whether an amendment violates basic structure or what remedies are available.
CONCLUSION
The Kesavananda Bharati case represents a defining moment in Indian constitutional history and stands as a testament to the resilience of constitutional democracy. The introduction of the basic structure doctrine was a creative judicial innovation that reconciled two competing constitutional imperatives: the need for constitutional adaptability and the necessity of preserving constitutional fundamentals.
The judgment demonstrated the Supreme Court’s institutional courage and wisdom in standing up to potential legislative overreach while respecting democratic values. By recognizing Parliament’s power to amend the Constitution but limiting it with the basic structure doctrine, the Court ensured that India’s Constitution would remain a living document capable of evolution without losing its soul.
Fifty years after its pronouncement, the Kesavananda Bharati judgment continues to shape constitutional discourse in India. It has prevented authoritarian tendencies, protected fundamental rights, preserved federalism, and maintained judicial independence. The doctrine has proven sufficiently flexible to accommodate changing social needs while remaining firm enough to protect core constitutional values.
The case illustrates that constitutional law is not merely a technical legal exercise but involves fundamental questions about the nature of democracy, the limits of political power, and the relationship between the state and its citizens. It shows that a written constitution is more than words on paper; it embodies the values, aspirations, and identity of a nation.
As India continues its democratic journey, the basic structure doctrine established in Kesavananda Bharati remains a cornerstone of constitutional governance, ensuring that the promise of the Constitution—to secure justice, liberty, equality, and fraternity for all citizens—remains inviolable despite the changing tides of political fortune. The judgment stands as a monument to judicial statesmanship and constitutional wisdom, securing its place as perhaps the most important judicial decision in independent India’s history.
BIBLIOGRAPHY
Cases Cited:
- His Holiness Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr., AIR 1973 SC 1461
- I.C. Golaknath v. State of Punjab, AIR 1967 SC 1643
- Shankari Prasad v. Union of India, AIR 1951 SC 458
- Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845
- Minerva Mills v. Union of India, AIR 1980 SC 1789
- Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299
- I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1
- S.R. Bommai v. Union of India, (1994) 3 SCC 1
- Waman Rao v. Union of India, AIR 1981 SC 271
Books and Articles:
- T.R. Andhyarujina, The Kesavananda Bharati Case: The Untold Story of Struggle for Supremacy by Supreme Court and Parliament (Universal Law Publishing, 2011)
- Granville Austin, Working a Democratic Constitution: A History of the Indian Experience (Oxford University Press, 1999)
- H.M. Seervai, Constitutional Law of India (4th edn, Universal Law Publishing, 2009)
- M.P. Singh & Arun K. Thiruvengadam (eds), Basic Structure Constitutionalism: Revisiting Kesavananda Bharati (Eastern Book Company, 2011)
- Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine (Oxford University Press, 2009)
