Kesavananda Bharati v State of Kerala

1. Case Citation and Basic Information

Case Name: Kesavananda Bharati v State of Kerala

Citation: AIR 1973 SC 1461; (1973) 4 SCC 225

Court: Supreme Court of India

Date of Decision: 24 April 1973

Bench Composition: Thirteen- Judge Constitutional Bench comprising Chief Justice S.M. Sikri and Justices J.M. Shelat, K.S. Hedge, A.N. Grover, A.K. Mukherjea, P. Jaganmohan Reddy, H.R. Khanna, A.N. Ray, D.G. Palekar, K.K. Mathew, M.H. Beg, S.N. Dwivedi and Y.V. Chandrachud.

2. Introduction

Kesavananda Bharati v State of Kerala stands as the most consequential constitutional judgment in the history of Indian law. Pronounced by the Supreme Court of India on 24 April 1973, the judgment decisively altered the power dynamic between Parliament’s amending power and judges’ supervisory power over the Constitution. The case was prompted by challenges to constitutional amendments assuring immunity from judicial review to land reform legislation, but essentially forced the Court to answer the question whether Article 368 of the Constitution gave Parliament unlimited amending power or whether there were any basic limits on it.[1]

The decision is best known for establishing the Basic Structure Doctrine, under which Parliament may amend any provision of the Constitution but cannot alter or destroy its essential features. This doctrine has become one of the cornerstones of Indian constitutional law and has influenced constitutional jurisprudence in several other jurisdictions. The judgment continues to shape debates concerning constitutional supremacy, separation of powers, judicial review and democratic governance, making it one of the most influential constitutional decisions of the twentieth century.[2]

3. Facts of the Case

His Holiness (Shankaracharya) Kesavananda Bharati Sripadagalvaru, petitioner, was the head of the Edneer Mutt (a Hindu religious institution) located in Kasaragod district in the State of Kerala. The Mutt owned agricultural land, which was an important source of revenue for its religious and charitable work. As a result of the Kerala Land Reforms Act, 1963 (as amended), large parts of the Mutt’s property became subject to acquisition by the State under the land ceiling provisions. The petitioner claimed that these acts violated the Mutt’s rights to property, which are protected under the Constitution, and it impeded the Mutt’s freedom to administer its religious affairs.[3]

The petitioner initially, filed before the Supreme Court under Article 32 of the Constitution, quashing the validity of the Kerala Land Reforms legislation under Article 13 as unconstitutional. The proceedings were pending when the Twenty-fourth, Twenty-fifth and Twenty-ninth Constitutional Amendments were passed by the Parliament, augmenting the amendment powers of the Parliament, curtailing the power of judicial review, byproviding that certain statutes including the Kerala Land Reforms Actionwould fall under the Ninth Schedule and there should be no judicial review of these laws for contravention of the provisions of the Constitution.[4]

Consequently, the issue before the Court spread beyond the validity of land reform legislation. The chief concern was whether Parliament had an unfettered power to amend all provisions of the Constitution, including provisions that protected fundamental rights. The petitioner said that, while Parliament had a power to amend the Constitution under Article 368, such power was not absolute, and it could not be used to strip the Constitution of its essential character.[5]

In view of extensive constitutional implications, the Supreme Court set up its largest bench in its history, of thirteen judges, to decide the extent of Parliament’s amending power. The argument took several months, with both sides presenting detailed arguments and considering constitutional provisions, the intention of the Constituent Assembly, comparative constitutional law, and earlier Supreme Court cases. The result ultimately would decide the ultimate balance between parliamentary sovereignty and constitutional supremacy in the country, and thus would have consequences far beyond the immediate land reform question.

4. Legal Issues

The Supreme Court was asked to resolve many constitutional questions of great importance. The primary legal questions were:

Issue 1: Whether the power of Parliament to amend the Constitution under Article 368 is unlimited or its exercise is subject to implied Limitations under the Constitution.

Issue 2: Whether the 24^th Constitutional Amendment Act, 1971, recognizing the power of Parliament to amend any provision of the Constitution, including Fundamental Rights, is constitutionally valid.

Issue 3: Whether the 25^th Constitutional Amendment Act, 1971, and the Twenty-ninth Constitutional Amendment Act, 1972, violate the Constitution by preventing the constitution of State laws from being challenged in terms of the Constitution and, thereby, shielding certain State laws from judicial review by including them in the Ninth Schedule.

Issue 4: Whether Parliament could enact or abrogate the Fundamental Rights in a manner that affects the identity, structure and essential aspects of the Constitution.[6]

To resolve the issues, the Court was compelled to balance two important and compelling constitutional commitments. First, the divisions of Parliament and the Government maintained that democratic legislation was needed to bring about socio-economic reforms in the country and the directives and principles contained in the Directive Principles of State Policy could be effectively implemented only through constitutional amendment. On the other hand, the petitioner contended that the Constitution delegated limited powers to the legislature and that envisaged powers including those relating to constitutional amendments could not be amended because the basic structure of the Constitution is unalterable and contains essential principles such as constitutional supremacy, the right to judicial review of laws of Parliament, rule of law, separation of powers and protection of fundamental rights.

Thus the Court had to explore the various constitutional limits of the power of amending the Constitution under Article 368 within the broad context of balancing democratic self-government and constitutional supremacy.[7]

5. Arguments Presented

5.1 Petitioner’s Arguments

The petitioner argued that, although Article 368 provides Parliament the power to amend the Constitution, the power is not unlimited. The petitioner said that, the Constitution impressed upon Parliament a responsibility to restrain itself not to destroy the principles on which the Constitution has been based by constituting a framework of limited government, which should not be smeared depleting its core. The petitioner said that Parliament has derived its powers emanating from the Constitution itself and therefore it cannot enjoy the powers to free themselves from it.

The petitioner argued that, under the 24^th Constitutional Amendment Parliament was granted with huge amending power, which was very broad. Also, under the 25^th Constitutional Amendment Parliament was deprived of its right of judicial review and Fundamental Rights which had to be protected were weakened and could be stripped away. Furthermore, the petitioner argued that, under the 29^th Constitutional Amendment legislation could be put under the Ninth Schedule even if it has the effect of negating the Constitution.[8]

Even if the Constitution’s core was damaged by legislation put under the Ninth Schedule, the Constitution may not be protected from the extraordinary power of the Constitution. The petitioner based his arguments on prior constitutional decisions such as I.C. Golak Nath v State of Punjab.[9]

5.2 Respondent’s Arguments

The State of Kerala and the Union of India maintained that Parliament enjoys plenary power under Article 368 to amend any provision of the Constitution, including the Fundamental Rights chapter. The respondents maintained that the Constitution did not contain any express restriction on the amending power and it was untenable for the Judges to impose any implied restrictions.

They further argued that the constitutionally challenged amendments were made to facilitate land reforms for promoting socio-economic justice as per the Directive Principles of State Policy. They held that the reforms were necessary to minimize disparities, redistribute land and realize the objective of a just social order as in the constitution.

Finally, the respondents held that amendments to the constitution made following the required procedure were the unqualified expression of the sovereign will of Parliament. Hence the courts should not interfere with Parliament’s constitutional lead except where the procedure was improperly followed.[10]

6. Court’s Reasoning and Analysis

In a decision that is, so far, the narrowest in the history of our judicial democracy, the Supreme Court, by a 7:6 majority, reached its judgment. The Court embarked upon a comprehensive scrutiny of the Constitution, the proceedings of the Constituent Assembly, past decisions by the judiciary and the realities of constitutional democracy. Rather than adopting an either/or methodology with regards to Parliament’s amending power, the majority followed a balanced constitutional perspective.[11]

The Court held that while Article 368 does indeed give Parliament wide powers to amend the Constitution, those powers do not include the power to destroy the Constitution. The judges explained that, as it is the Constitution which is the supreme law of the country, Parliament is a creature of the Constitution and cannot enjoy powers which would demolish the building on whose foundation its powers rest.[12]

A substantial part of the Court’s reasoning lies in differentiating between the “destruction” and the “amendment” of the Constitution. The Court defined amendment as an improvement, a modification or an adaptation, which nevertheless preserves the identity of the governing document. If an amendment strips the fundamental attributes or the structure of the Constitution, it is not an amendment under Article 368.[13]

The Court further held that some features of the Constitution are of such a fundamental nature that they cannot be abrogated, even by the amendment process. The judges did not exhaustively enumerate these features, but regarded as being part of the Constitution’s Basic Structure the supremacy of the Constitution, the republican and democratic form of state, secularism, federalism, separation of powers, judicial review, the rule of law, and the protection of the dignity and liberty of individuals; these principles help maintain the identity and continuity of the constitutional order.[14]

In arriving at the conclusion, the Court weighed Parliament’s obligation to make social and economic changes against the duty of the judiciary to protect constitutional governance. The majority acknowledged that the Constitution must be amended for the living Constitution to adapt to changing circumstances. However, democratic aims do not provide adequate grounds for amendments that would unravel the Constitution’s essential structure or undermine the institutional safeguards in place to protect citizens from the arbitrary exercise of governmental power.[15]

Thus the Court upheld the validity of the 24^th Constitutional Amendment on the basis that it served only to clarify the power of Parliament to amend the Constitution. The Court, however, read into the 25^th Amendment a limited scope. And the Court upheld the validity of the 29^th Amendment to the Constitution although it clarified that Parliament cannot immunise all legislation from judicial review if the legislation contravenes that part of the Constitution which define the “Basic Structure” thereof.[16]

The current decision through its reasoning, conceived the Basic Structure Doctrine, arguably the most potent principle of contemporary constitutional law. This doctrine sustains the ordinary power of Parliament to amend the Constitution and simultaneously protects its basic features against alteration. In effect, this doctrine has nurtured a constitutional equilibrium between democratic law-making endowment and judicial safeguarding of the constitutional scheme, which thereafter has been reflected in Indian constitutional jurisprudence for over five decades.[17]

7. Judgement and Ratio Decidendi

Judgement

The Supreme Court, in a majority of 7:6, ruled that the Parliament can use its broad power under Article 368 to amend the Constitution, including the provisions concerning the Fundamental Rights. Nonetheless, the Court further observed that such power is not absolute. Parliament cannot use its amending power to destroy, abrogate, or disturb the essential features of the Constitution.[18]

The Court held that the 24^th Constitutional Amendment Act, 1971 was constitutional and that Parliament has power to amend any part of the Constitution in accordance with the procedure as prescribed in Article 368. The Court also held that the exercise of such power, however, is not beyond the power and control of the Constitution and is subject to certain substantive constitutional limitations.[19]

In regard to the 25^th Constitutional Amendment Act, 1971, the Court held that the amendment was valid in part but read its provisions so as to preserve the power of judicial review. The Court went on to hold that Parliament could not intend to exclude such review, in cases where the Constitution was alleged to have been exceeded, by a corrupt intent.[20]

The Court upheld also the 29^th Constitutional Amendment Act, 1972 with a definition that ensuring legislation placed in the Ninth Schedule will not be immune from challenge on constitutional grounds, if it contravened the Constitution’s Basic Structure. This definition made clear that constitutional amendments and legislation protected under Ninth Schedule were not beyond judicial scrutiny where the Constitution’s essential nature was under threat.[21]

Consequently, the petition was dismissed recognizing the plenary power of Parliament to amend the Constitution while at the same time placating the constitutional limitation meant to safeguard the Constitution´s integrity.[22]

Ratio Decidendi

The high constitutional principle stated in Kesavananda Bharati v State of Kerala, that power of Parliament to amend the Constitution by means of Article 368 extends to every provision of the Constitution, including Fundamental Rights, but does not permit Parliament to vary, destroy or damage Constitution’s Basic Structure, is the binding legal principle.[23]

The Basic Structure Doctrine therefore serves as an implied constitutional constraint on the amending power. The Constitution can be altered by the amendment to keep pace with changing political, social and economic conditions. However, the core principles of the Constitution such as constitutional supremacy, the rule of law, judicial review, democracy, secularism, federalism, separation of powers and the protection of fundamental rights must remain intact.[24]

The doctrine also has become a significant part of Indian constitutional law as it is reiterated in many a later judgment. It remains relevant and operational providing guidance towards judicial scrutiny of constitutional amendments and has also preserved the balance between the democratic mandate vested in the Parliament and the constitutional obligation of the judiciary.

8. Critical Analysis

8.1 Significance of the Decision

Kesavananda Bharati v State of Kerala is generally considered to be among the most significant constitutional judgements in contemporary history. The greatest achievement of the judgement was to outline the Basic Structure Doctrine, according to which the power to amend the Constitution is not unlimited, but is limited in substance even where Article 368 is complied with in procedure. The significance of this doctrine is that it limits the power of Parliament, thereby upholding the supremacy of the Constitution, and the concept that it is not just a document but a limiting instrument in law.

The Supreme Court’s decision has the effect of bolstering, or at least validating, the role of the courts in their capacity as guardians of the Constitution. The Supreme Court has, in its decision, also confirmed the validity of judicial review of constitutional amendments when such amendments may contravene the Constitution’s basic principles. Thus, the decision will contribute greatly to maintaining the system of democratic governance, the rule of law and the separation of powers in the midst of political and constitutional transformations.

8.2 Implications and Impact

The Basic Structure Doctrine has become the most important doctrine that has influenced the subsequent constitutional litigation. It has been invoked by the Supreme court in many later cases to strike down extensions of the powers of constitutional amendment that dilute the Constitution. The doctrine has become an important instrument to protect the Constitution from the misuse of constitutional amendment powers and has become an essential and a permanent feature of the constitutional democracy of India thus far.

The judgment has also attracted the attention of scholars and courts in other democratic countries. Though it has been adopted more readily in some jurisdictions, it has impacted thoughts and reasoning on issues such as the supremacy of constitution, exercise of judicial review, limits of legislative power etc. Thus, the case has become a case making a mark on the comparative constitutional theory and practice.

8.3 Critical Evaluation

Although the judgment has not been free of criticism, the chief criticism has been that the Supreme Court failed to provide a clear-cut definition of what constitutes the Constitution’s ‘Basic Structure’ and that the doctrine has evolved in pieces over time through later judgements. It has been suggested that the result has been that the doctrine has granted prodigious discretion to the judiciary in reviewing constitutional amendments, and that ‘judicial cattiness’ has resulted in judges imposing their preferred version of the Constitution on Parliament.

In contrast, its proponents argue that a more rigid or exhaustive definition would have rendered this doctrine ineffective in dealing with future challenges to the Constitution. By establishing a pliant concept, the Court fostered an evolving system of constitutional principles that, however, upheld the Constitution’s essential character. Such pliancy has empowered the judicial branch to grapple with new constitutional problems without compromising compound survival.

In general, there is no doubt that the judgment delivers the right balance between the constitutional stability and the democratic imperatives. Parliament is vested with wide powers to amend the Constitution in response to changing social, political and economic realities. The role of the judiciary, through its own individual exercise of power of judicial review, is to protect the Constitution from its own destruction by Parliament, by preventing such amendments that would entirely efface the Constitution’s underlying values and principles. Though the debate remains and perhaps, so far, the Basic Structure Doctrine remains a matter of jurisprudential contentions; nevertheless, the judgment has been invaluable in protecting India’s democratic constitutional order.

9. Conclusion

The decision in Kesavananda Bharati v State of Kerala created a watershed moment in Indian constitutional law. The Supreme Court decided that the Parliament enjoys wide powers to amend the Constitution but set bounds on this authority by recognising and reinforcing certain substantive constitutional limits. In doing so, the Court resolved a constitutional dispute that had been warring for years by recognising that while the Constitution is a living Constitution, it is not an instrument of destruction.

The Basic Structure Doctrine promulgated by the Court has emerged as one of the most enduring doctrines of Indian constitutional jurisprudence. It has thwarted attempts to erode the rule of law, judicial review, separation of powers, federalism, secularism and other basic constitutional values via constitutional amendments. For the last five decades, the doctrine has been revalidated several times and continues to be invoked in contemporary constitutional adjudication in India and comparative constitutional scholarship abroad.[25]

Although debate persists regarding the precise scope of the Basic Structure Doctrine and the extent of judicial review, the judgment successfully balances parliamentary sovereignty with constitutional accountability. It ensures that constitutional change remains possible while safeguarding the core principles upon which the Constitution is founded. For these reasons, Kesavananda Bharati v State of Kerala continues to be regarded as one of the most significant constitutional judgments ever delivered and remains indispensable to understanding the development of constitutional democracy in India.[26]

10. References (OSCOLA)

Cases

I.C. Golak Nath v State of Punjab AIR 1967 SC 1643.

Kesavananda Bharati v State of Kerala AIR 1973 SC 1461.

Minerva Mills Ltd v Union of India AIR 1980 SC 1789.

Waman Rao v Union of India AIR 1981 SC 271.

Legislation

Constitution of India 1950.

Constitution (24^th Amendment) Act 1971.

Constitution (25^th Amendment) Act 1971.

Constitution (29^th Amendment) Act 1972.

Kerala Land Reforms Act 1963.

Books

Jain MP, Indian Constitutional Law (8th edn, LexisNexis 2018).

Seervai HM, Constitutional Law of India (4th edn, Universal Law Publishing 1996).

Shukla VN, Constitution of India (13th edn, Eastern Book Company 2017).

[1] Kesavananda Bharati v State of Kerala AIR 1973 SC 1461, Paras 1112 – 1116, 1480 – 1482.

[2] Kesavananda Bharati v State of Kerala AIR 1973 SC 1461, paras 1480 – 1484.

[3] Kerala Land Reforms Act 1963.

[4] Constitution of India 1950, art 32; Constitution (24^th Amendment) Act 1971; Constitution (25^th Amendment) Act 1971; Constitution (29^th Amendment) Act 1972.

[5] Constitution of India 1950, art 368.

[6] Kesavananda Bharati v State of Kerala AIR 1973 SC 1461, paras 509-512.

[7] Kesavananda Bharati v State of Kerala AIR 1973 SC 1461, paras 694-696; paras 1285-1286.

[8] Kesavananda Bharati v State of Kerala AIR 1973 SC 1461, paras 509-512, 694-696.

[9] I.C. Golak Nath v State of Punjab AIR 1967 SC 1643; Kesavananda Bharati v State of Kerala AIR 1973 SC 1461, paras 617-626.

[10] Kesavananda Bharati v State of Kerala AIR 1973 SC 1461, paras 509-512, 1285-1286.

[11] Kesavananda Bharati v State of Kerala AIR 1973 SC 1461, paras 1480-1482.

[12] Kesavananda Bharati v State of Kerala AIR 1973 SC 1461, paras 1480-1484.

[13] Kesavananda Bharati v State of Kerala AIR 1973 SC 1461, paras 1481-1485.

[14] Kesavananda Bharati v State of Kerala AIR 1973 SC 1461, paras 1482-1487.

[15] Kesavananda Bharati v State of Kerala AIR 1973 SC 1461, paras 694-696, 1482-1487.

[16] Kesavananda Bharati v State of Kerala AIR 1973 SC 1461, paras 1108-1112, 2233-2235.

[17] Kesavananda Bharati v State of Kerala AIR 1973 SC 1461, paras 1480-1485.

[18] Kesavananda Bharati v State of Kerala AIR 1973 SC 1461, paras 1480-1485.

[19] Kesavananda Bharati v State of Kerala AIR 1973 SC 1461, paras 2038-2045.

[20] Kesavananda Bharati v State of Kerala AIR 1973 SC 1461, paras 2058-2066.

[21] Kesavananda Bharati v State of Kerala AIR 1973 SC 1461, paras 2233-2235.

[22] Kesavananda Bharati v State of Kerala AIR 1973 SC 1461, paras 1480-1485, 2233-2235

[23] Kesavananda Bharati v State of Kerala AIR 1973 SC 1461, paras 1480-1485.

[24] Kesavananda Bharati v State of Kerala AIR 1973 SC 1461, paras 1482-1487.

[25] Minerva Mills Ltd v Union of India  AIR 1980 SC 1789; Waman Rao v Union of India AIR 1981 SC 271.

[26] Minerva Mills Ltd v Union of India  AIR 1980 SC 1789.