Kesavananda Bharati Sripadagalvaru v. State of Kerala (AIR 1973 SC 1461)

Introduction

The Supreme Court of India (Constitution Bench of 13 judges) scrutinized the limits of Parliament’s constituent power in Kesavananda Bharati Sripadagalvaru v. State of Kerala (decided 24 April 1973).[1] Kesavananda Bharati, the head of a religious institution, filed a writ petition under Article 32 challenging Kerala’s land reform laws. He subsequently also challenged the 24th, 25th, and 29th Constitutional Amendments, which Parliament had enacted to shield those laws from judicial review.[2] In a historic 7–6 decision, the Court articulated the “Basic Structure” doctrine — the principle that certain fundamental components of the Constitution, such as democracy, secularism, federalism, and the rule of law, lie beyond Parliament’s amending power. This ruling is of momentous significance because it affirms that ultimate constitutional authority in India rests with the people, not with Parliament alone.[3]

Facts

In March 1970, Kesavananda Bharati filed Writ Petition (Civil) No. 135 of 1970 under Article 32 of the Constitution.[4] He contended that certain provisions of the Kerala Land Reforms Act, 1963 (and its 1969 Amendment) violated his fundamental rights under Articles 25 and 26 (freedom of religion), Article 19(1)(f) (right to property), and related provisions. A Rule Nisi was issued.[5]

While the case was pending, Kerala enacted another Land Reforms Amendment in 1971, prompting the petitioner to seek leave to challenge it as well. Concurrently, Parliament passed the 24th, 25th, and 29th Constitutional Amendments (1971–72) to protect these land laws from judicial review.[6] The 24th Amendment expanded Article 368 (Parliament’s amending power) and excluded constitutional amendments from the scope of Article 13.[7] The 25th Amendment substituted the word “compensation” with “amount” in Article 31(2) and introduced a new Article 31C to protect laws giving effect to certain Directive Principles. The 29th Amendment inserted the Kerala Land Acts into the Ninth Schedule.[8] The petitioner amended his writ petition to challenge these amendments as well, and a full Constitution Bench was constituted to examine the validity of the 24th through 29th Amendments.

Legal Issues

I. Fundamental Issues
1) Whether Parliament can amend any provision of the Constitution under Article 368, or whether there are inherent limitations on its amending authority; and whether Article 13(2), which prohibits laws that abrogate or abridge fundamental rights, applies to constitutional amendments made under Article 368.[9]

2) What is the extent of the power conferred on Parliament by Article 368? Does it permit Parliament to amend the Constitution’s fundamental structure, or do certain essential principles remain beyond its reach? And does the incorporation of laws in the Ninth Schedule via the 29th Amendment immunize them from judicial scrutiny for violation of fundamental rights, or can such laws still be challenged if they infringe upon the Constitution’s basic structure?[10]

3) Whether the concept of “basic structure” constitutes a valid judicial construct, and if so, what are the distinguishing characteristics of the basic structure of the Indian Constitution that are immune to amendment? Can the inclusion of Article 31C by the 25th Amendment — which shields laws relating to Directive Principles from judicial scrutiny — be defended as consistent with the Constitution’s basic framework, or does it contravene the principle of judicial review?[11]

4) Whether the 24th Amendment, which excludes Article 13(2)’s applicability to amendments under Article 368, constitutes an overextension of legislative authority or a necessary modification to ensure Parliament’s full constituent capacity; and how the Court ought to reconcile the power of judicial review with Parliament’s right to amend the Constitution, given that judicial review may itself be an integral component of the basic structure.[12]

II. Comprehensive Questions Raised by the Court
The central question was how far Parliament’s constituent power extended under Article 368. Chief Justice Sikri posed the question: “What is the nature of the amendment authority conferred on Parliament through Article 368?” — a function he treated as distinct from and unaffected by Article 13(2).[13] The Court had to determine whether Parliament could amend any provision of the Constitution, including Fundamental Rights and the basic structure, or whether unwritten limitations existed.

The State and Union argued that Parliament’s amending power was absolute: an amendment under Article 368 could curtail even foundational rights such as freedom of expression and religion, effectively dismantling India’s democratic republic.[14] The petitioners countered that the Constitution enshrines enduring freedoms and values — a “freedom from tyranny” — and that certain fundamental provisions granted by the people cannot be taken away. They stressed that Article 31C (introduced by the 25th Amendment) would vest Parliament and State Legislatures with arbitrary power over citizens’ rights, contrary to the Constitution’s purpose.[15]

Applicable Law and Provisions

Article 368, in its pre-24th Amendment form, prescribed the procedure for making amendments but did not expressly limit which amendments were permissible. Article 13(2) originally provided that the State shall not make any law that takes away or abridges the rights conferred by Part III. In I.C. Golak Nath v. State of Punjab (1967), the Supreme Court held that a “law” for the purposes of Article 13(2) included constitutional amendments, thereby rendering Fundamental Rights unamendable.[16]

The 24th Amendment (1971) revised Article 368 to clarify that “Parliament may amend by way of addition, variation or repeal any provision of this Constitution,” and inserted Article 13(4) to provide that “nothing in Article 13 shall apply to any amendment made under Article 368,” thereby effectively overruling Golak Nath.[17] The 25th Amendment (1972) modified Article 31(2) (the property clause) and added Article 31C, which had two limbs: the first protected laws implementing Directive Principles under Articles 39(b) and 39(c) from challenge under Articles 14, 19, or 31;[18] the second barred courts from questioning such laws on the ground that they did not give effect to those Directive Principles. The 29th Amendment (1972) inserted the Kerala Land Acts into the Ninth Schedule, thereby placing them beyond ordinary judicial review.[19] Accordingly, the provisions before the Court encompassed both the original Articles 368 and 13 and their amended forms, particularly Article 13(4) and Article 31C.[20]

Contentions of the Parties

Petitioners
Counsel for the petitioners, notably Nani Palkhivala, argued that notwithstanding the expansive language of Article 368, the Constitution’s “basic structure” — its fundamental identity — remained immutable. The constituent power vested in the people, as reflected in the Preamble and Part III, imposed an implied limitation on Parliament’s amending authority. They contended that the protection of rights under Article 13 should be read as inherent in any conception of constitutional amendment, consistent with the position urged in Golak Nath regarding the inalienable character of Fundamental Rights.[21] If the broad non-obstante clause in Article 31C were upheld in its entirety, Parliament would acquire the power to virtually consume any fundamental right.[22]

The petitioners argued that the Constitution was designed to prevent future tyranny while guaranteeing that essential values — including democracy, the rule of law, and judicial review — would be preserved. They further maintained that implied constraints rooted in the Preamble’s objectives should limit the scope of amendments, so as to protect the enduring freedoms and dignity the Constitution was meant to secure for all generations.[23]

Respondents
The Union and State Governments contended that the 24th Amendment had expressly confirmed Parliament’s plenary constituent power. Since Article 13 had been amended to exclude its application to constitutional amendments, Article 368 had to be given full effect without restriction. They submitted that if the framers had intended any provision to be beyond amendment, they would have said so explicitly, and pointed out that even the Preamble and certain federal provisions could be amended provided the requisite state ratification under Article 368’s proviso was obtained.[24] From this perspective, the Court’s role was confined to ensuring procedural compliance with Article 368, and not to sit in judgment on the substantive merit of constitutional amendments.

The respondents defended the 24th and 29th Amendments as proper exercises of Parliament’s constituent authority, and additionally maintained that Article 31C (introduced by the 25th Amendment) was a legitimate means of advancing social justice through the Directive Principles and should be upheld in full.[25]

Interpretation of Law

The Court conducted a thorough textual and purposive analysis of the Constitution. The majority rejected the contention — advanced by some — that Article 368 was a purely procedural provision. Instead, the majority read Article 368 alongside the Preamble and the Constitution as a whole. Chief Justice Sikri noted that, after the 24th Amendment, Article 368 opens with the phrase “notwithstanding anything in this Constitution,” which on its face suggests plenary amending authority.[26] He nonetheless reasoned that all constituent power must be exercised in a manner consonant with the Constitution’s essential character.

The Preamble was accorded paramount interpretive weight. Chief Justice Sikri queried whether, so long as the words “sovereign democratic republic” appear in the Preamble, the Constitution could be amended in a manner contrary to those commitments.[27] He concluded that the Preamble’s ideals of justice, liberty, and equality impose a constraint on the amending power.

The majority acknowledged that, prior to the 24th Amendment, Articles 13(2) and 368 were in tension with each other. The 24th Amendment clarified that Article 13(2) does not apply to constitutional amendments. This meant that amendments made under Article 368 could not be invalidated as “law” within the meaning of Article 13. However, the Court held that the term “amendment” must be understood in its proper sense: it means an improvement or modification within the Constitution’s existing framework, not a transformation of that framework itself.[28]

The two limbs of Article 31C were examined separately. The first limb — immunizing laws genuinely implementing Directive Principles under Articles 39(b) and (c) from challenge under Articles 14, 19, or 31 — was upheld as a valid saving clause. The Court accepted it because it still permitted judicial scrutiny of whether a law genuinely gave effect to those Directive Principles, thereby preserving a measure of judicial oversight.[29] However, the second limb — which declared that any such law “shall not be called in question in any court” — was struck down. The majority held that this provision gave the Legislature absolute immunity and made it the sole judge of its own purposes, exceeding the permissible limits of constitutional amendment by granting Parliament “carte blanche” to override Articles 14, 19, and 31 and placing such laws entirely beyond judicial reach. This limb violated the basic structure of the Constitution.[30]

Court and Jurisdiction

The petition was filed in the Supreme Court of India under Article 32 as a writ petition. Given that the questions raised concerned the validity of constitutional amendments and the scope of Parliament’s constituent authority — matters of the highest constitutional importance — the case was placed before the largest Constitution Bench in Indian history, comprising 13 judges presided over by Chief Justice Sikri.[31]

Legal Analysis

The majority in Kesavananda Bharati struck a careful balance between textualism and purposivism. On one hand, it acknowledged Parliament’s broad amending power under the post-24th Amendment Article 368, which permits amendment “by way of addition, variation or repeal” of any provision. On the other hand, it identified an implicit limitation: any amendment must preserve the Constitution’s vital foundation. Justice H.R. Khanna famously observed that every part of the Constitution can be amended, provided that the basic structure and foundation of the Constitution remain intact.[32] He identified certain essential features — grounded in the dignity and freedom of the individual — that cannot be destroyed by any form of amendment, including the supremacy of the Constitution, a republican and democratic form of government, secularism, the separation of powers, and federalism.

This reasoning posited that an amendment is valid only if it sustains the Constitution’s basic spirit. Chief Justice Sikri, writing for the majority, made clear that this standard was derived from the Preamble read in conjunction with the Constitution as a whole. Since the Preamble declares India to be a sovereign democratic republic, amendments that would terminate democracy or the republican form of government would not be permissible. The majority further held that an amendment cannot abrogate judicial review or Fundamental Rights, as these are essential mechanisms through which the people exercise and safeguard their constitutional sovereignty.[33]

The Court declined to enumerate an exhaustive list of “basic features,” and different judges in the majority articulated different lists in their concurring opinions. This demonstrates that the doctrine is simultaneously flexible and principled: any amendment that damages or destroys the Constitution’s identity — its “basic structure” — is ultra vires.[34] In reading Article 368, the Court situated it within the broader framework of Article 13, the Preamble, and the Constitution’s historical and philosophical background — including the need to balance Fundamental Rights with Directive Principles — thereby affirming that the Constitution represents an enduring covenant between the people and the State.[35]

Final Judgment

The Bench voted 7 to 6 to sustain most of the challenged amendments, subject to the basic structure limitation. The 24th Amendment and the 29th Amendment (to the extent they were actually applied) were upheld, as was the first limb of Article 31C.[36]

In summary, the majority held that Parliament may amend any part of the Constitution but cannot alter its basic structure. On this basis, the 24th and 29th Amendments — which merely clarified the amending procedure and placed laws in the Ninth Schedule respectively — were found to be valid.[37] The amendment to Article 31(2) (substituting “compensation” with “amount”) and the first limb of Article 31C (preserving laws implementing Directive Principles) were likewise upheld. However, the second limb of Article 31C — which placed such laws beyond any form of judicial challenge — was struck down as violating the basic structure limitation. The Court emphasized that judicial review is an essential and non-derogable component of the constitutional system, and cannot be abrogated by amendment. As a consequence, the petitioners’ original challenges to the Kerala Acts remained cognizable, although those Acts were still subject to the general constitutional limits that applied to all legislation.[38]

Criticism

The Kesavananda Bharati judgment has attracted sustained scholarly and political criticism. Some commentators argue that the majority improperly appropriated plenary constituent authority — which properly belongs to the people and their elected representatives — by fashioning the vague “basic structure” criterion. They contend that this blurs the separation of powers, since unelected judges may strike down amendments enacted by a democratically elected Parliament on broad grounds of principle. Critics have also noted that each majority judge produced a different enumeration of inviolable features, revealing the doctrine’s indeterminacy. This ambiguity affords courts considerable latitude in defining what is and is not “basic,” without any textual anchor.

Others have argued that the majority gave insufficient weight to democratic legitimacy: if the electorate and Parliament continue to enact popular reforms, the judicial imposition of extra-constitutional ideals may amount to an unwarranted intrusion. Critics further suggest that if certain provisions were truly meant to be unamendable, the framers or Parliament should have made that explicit — as the proviso to Article 368 does for federal concerns — rather than leaving the matter to judicial implication. An alternative approach would have been for Parliament to entrench specific rights or values through a formal amendment process, rather than having the Court read in implied limitations. In short, critics favour adherence to the text and structure of Article 368 and its express exceptions, and respect for democratically enacted constitutional entrenchment, rather than reliance on open-ended judicial theories.[39]

Conclusion

Kesavananda Bharati established that India’s Constitution is a solemn trust reposed in the nation by its people, and not merely a legal instrument susceptible to unlimited revision. Its foundational proposition — that the “basic structure” of a constitutional republic cannot be abrogated even by formal amendment — has become an enduring and central feature of Indian constitutional law. While the doctrine’s open-ended character continues to generate debate, the ruling firmly established that the Constitution’s enduring identity must prevail over transient majoritarian preferences. In this sense, the Supreme Court affirmed its role as the guardian of constitutional values, protecting the democratic, secular, and rights-protecting foundations that render the Constitution a living document faithful to its own noble purpose.

References

[1] Kesavananda Bharati Sripadagalvaru v. State of Kerala, (1973) 4 S.C.C. 225; A.I.R. 1973 S.C. 1461 (India), https://indiankanoon.org/doc/257876/
[2] The Constitution of India, 1950, art. 32 (as amended).
[3] Kesavananda Bharati, (1973) 4 S.C.C. at 225.
[4] The Constitution of India, 1950, art. 32.
[5] The Kerala Land Reforms Act, 1963 (Act 1 of 1964) (Ker.); The Constitution of India, 1950, arts. 19(1)(f), 25, 26.
[6] Kesavananda Bharati, (1973) 4 S.C.C. at 225.
[7] The Constitution of India, 1950, arts. 13, 368.
[8] The Constitution of India, 1950, arts. 31(2), 31C.
[9] The Constitution of India, 1950, arts. 13(2), 368.
[10] The Constitution of India, 1950, art. 368.
[11] The Constitution of India, 1950, art. 31C.
[12] The Constitution of India, 1950, arts. 13(2), 368.
[13] The Constitution of India, 1950, arts. 13(2), 368.
[14] The Constitution of India, 1950, art. 368.
[15] Kesavananda Bharati, (1973) 4 S.C.C. at 225.
[16] I.C. Golak Nath v. State of Punjab, A.I.R. 1967 S.C. 1643 (India); The Constitution of India, 1950, arts. 13(2), 368.
[17] The Constitution of India, 1950, arts. 13, 368.
[18] The Constitution of India, 1950, arts. 14, 19, 31, 31(2), 31C, 39(b), 39(c).
[19] The Kerala Land Reforms Act, 1963 (Act 1 of 1964) (Ker.); The Constitution of India, 1950, Ninth Schedule.
[20] The Constitution of India, 1950, arts. 13, 13(4), 31C, 368.
[21] The Constitution of India, 1950, arts. 13, 368.
[22] The Constitution of India, 1950, art. 31C. Note: The original text cited “Article 13C,” which appears to be a typographical error for Article 31C.
[23] Kesavananda Bharati, (1973) 4 S.C.C. at 225.
[24] The Constitution of India, 1950, arts. 13, 368.
[25] The Constitution of India, 1950, arts. 31C, 368.
[26] The Constitution of India, 1950, art. 368.
[27] Kesavananda Bharati, (1973) 4 S.C.C. at 225.
[28] The Constitution of India, 1950, arts. 13, 13(2), 368.
[29] The Constitution of India, 1950, arts. 14, 19, 31, 31C, 39(b), 39(c).
[30] The Constitution of India, 1950, arts. 14, 19, 31.
[31] The Constitution of India, 1950, art. 32; Kesavananda Bharati, (1973) 4 S.C.C. at 225.
[32] Kesavananda Bharati, (1973) 4 S.C.C. at 225.
[33] Ibid.
[34] Ibid.
[35] The Constitution of India, 1950, arts. 13, 368.
[36] The Constitution of India, 1950, art. 31C.
[37] Kesavananda Bharati, (1973) 4 S.C.C. at 225.
[38] The Constitution of India, 1950, arts. 31(2), 31C.
[39] The Constitution of India, 1950, art. 368.