Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461

Introduction

The judgment in Kesavananda Bharati v. State of Kerala is widely regarded as a constitutional watershed in Indian jurisprudence. Delivered by a 13-judge bench of the Supreme Court—the largest bench ever assembled in India—the decision settled a long-standing tension between parliamentary supremacy and constitutional supremacy. At the heart of the dispute lay the question: Does Parliament possess unlimited power to amend the Constitution under Article 368, or are there inherent limitations?

By a narrow margin of 7–6, the Court held that while Parliament’s power to amend the Constitution is wide, it is not absolute. It cannot alter or destroy the “basic structure” or “essential features” of the Constitution. This doctrine, though not explicitly mentioned in the constitutional text, has since become the bedrock of Indian constitutional law.

Background & Key Facts

In 1970, Swami Kesavananda Bharati, the head of the Edneer Mutt in Kerala, challenged the Kerala Land Reforms Act, 1963 (as amended in 1969), which imposed restrictions on the management of religious property. The petitioner invoked his rights under Articles 25, 26, 14, 19(1)(f), and 31 of the Constitution, claiming that the Act violated his fundamental rights, particularly the right to property and religious freedom.

By this time, the tension between Parliament and the judiciary over the scope of constitutional amendments had already surfaced in earlier cases:

• In Shankari Prasad v. Union of India, AIR 1951 SC 458, the Supreme Court upheld Parliament’s power to amend fundamental rights.
• In Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845, this position was reaffirmed.
• However, in I.C. Golaknath v. State of Punjab, AIR 1967 SC 1643, a majority held that Parliament could not amend or abridge fundamental rights under Part III.

To nullify Golaknath, Parliament enacted the 24th and 25th Constitutional Amendments (1971), expanding its amending powers under Article 368 and curtailing judicial review of laws implementing Directive Principles. The 29th Amendment (1972) placed the Kerala Land Reforms Act in the Ninth Schedule, immunizing it from judicial scrutiny.

Swami Kesavananda’s petition thus became the occasion for a larger constitutional battle on the validity of these amendments.

Issues before the Court

The 13-judge bench, led by Chief Justice S.M. Sikri, framed several constitutional questions:

1. Does Article 368 confer unlimited power upon Parliament to amend any part of the Constitution, including fundamental rights?
2. Are there implied limitations on the amending power?
3. Can Parliament abrogate or alter the “basic structure” of the Constitution?
4. What is the validity of the 24th, 25th, and 29th Constitutional Amendments?

Arguments of the Petitioners

The petitioners, represented by eminent counsel including Nani Palkhivala, argued:

1. Limited Amending Power: Article 368 allows amendments, but not destruction of the Constitution’s identity. Parliament is a creature of the Constitution; it cannot override the document that gives it existence.
2. Inviolability of Fundamental Rights: Fundamental Rights form the cornerstone of the Constitution. Permitting Parliament to amend or repeal them entirely would reduce them to mere statutory rights, defeating their purpose.
3. Doctrine of Constitutional Supremacy: India’s Constitution is supreme; sovereignty lies not in Parliament alone but in the people who adopted it. Therefore, Parliament cannot act as a sovereign constituent assembly.
4. Judicial Review: Exclusion of judicial review (as in the 25th Amendment’s Article 31C) violates the separation of powers and the rule of law, which are essential features of the Constitution.

Arguments of the Respondents (State of Kerala & Union of India)

The State, represented by Attorney General Niren De and others, countered:

1. Unlimited Amending Power: Article 368 confers plenary power on Parliament to amend “any provision” of the Constitution. This includes the power to amend or repeal fundamental rights.
2. Sovereignty of Parliament: In a democracy, the elected representatives express the will of the people. Judicial restrictions on Parliament’s amending power undermine democratic sovereignty.
3. Directive Principles over Fundamental Rights: Parliament has a duty to implement Directive Principles (Part IV). To achieve socio-economic justice, fundamental rights such as property can be restricted.
4. Political Question Doctrine: The question of constitutional amendments should be left to Parliament, not the judiciary. Courts should not interfere in the sovereign will of the legislature.

The Judgment

The Court delivered its decision on April 24, 1973, after one of the lengthiest hearings in its history. The outcome was a 7–6 majority.

1. Majority Opinion
   • Parliament’s power to amend the Constitution is wide and extends to all provisions, including Part III (Fundamental Rights).
   • However, this power is not unlimited. Parliament cannot alter or destroy the “basic structure” or “essential features” of the Constitution.
   • The 24th Amendment was upheld as valid.
   • The 25th Amendment was partly upheld: Article 31C was valid insofar as it sought to give primacy to Directive Principles, but the clause excluding judicial review was struck down.
   • The 29th Amendment was upheld, but subject to the Basic Structure Doctrine—laws placed in the Ninth Schedule remain open to review if they damage the basic structure.
2. Minority Opinion
   • The dissenting judges held that Parliament’s amending power was absolute and unlimited, extending even to the complete abrogation of the Constitution.
3. Basic Structure Doctrine
   The Court did not give an exhaustive list but indicated key features that constitute the basic structure:
   • Supremacy of the Constitution
   • Republican and democratic form of government
   • Secular character of the Constitution
   • Separation of powers between legislature, executive, and judiciary
   • Federal character of the Constitution
   • Rule of law and judicial review
   • Harmony between Fundamental Rights and Directive Principles

Impact and Significance

The Kesavananda judgment profoundly altered Indian constitutional law:

1. Judicial Safeguard against Authoritarianism: By limiting Parliament’s power, the Court ensured that core constitutional principles cannot be sacrificed at the altar of temporary political majorities.
2. Balance between Flexibility and Rigidity: The Constitution could still evolve through amendments, but its essential identity was protected.
3. Reaffirmation in Subsequent Cases:
   • Indira Gandhi v. Raj Narain, 1975 Supp SCC 1: The Court struck down the 39th Amendment excluding election disputes involving the Prime Minister from judicial review.
   • Minerva Mills v. Union of India, (1980) 3 SCC 625: Reiterated that limited amending power is itself part of the basic structure.
   • I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1: Laws placed in the Ninth Schedule after 1973 are subject to the Basic Structure Doctrine.
4. International Influence: The doctrine has influenced constitutional jurisprudence in countries like Bangladesh (Anwar Hossain Chowdhury v. Bangladesh, 1989) and has been studied widely as an Indian innovation.

Critical Analysis

The Kesavananda ruling has been both celebrated and criticized.

Strengths:

• It preserved the constitutional identity against majoritarian impulses.
• By ensuring that fundamental principles like democracy and rule of law remain unalterable, it prevented the possibility of India sliding into authoritarianism.
• It reconciled the conflict between Golaknath (which froze Parliament’s power) and earlier cases like Shankari Prasad (which gave absolute power), by striking a middle path.

Criticisms:

• The term “basic structure” is not found in the text of the Constitution, raising concerns about judicial creativity or overreach.
• The lack of a definitive list of “basic features” gives judges wide discretion, leading to unpredictability.
• Some argue that it undermines the principle of parliamentary sovereignty and places excessive power in unelected judges.

Continuing Relevance:
Despite criticisms, the doctrine has stood the test of time. Even in contemporary debates—such as reservations, judicial appointments, and federalism—the basic structure doctrine remains a guiding principle ensuring constitutional continuity.

Conclusion

The decision in Kesavananda Bharati v. State of Kerala remains the most significant milestone in Indian constitutional history. By asserting that the Constitution has a “basic structure” that Parliament cannot amend, the Court struck a delicate balance between change and continuity, between parliamentary supremacy and constitutional supremacy.

This doctrine continues to safeguard India’s constitutional democracy, ensuring that while laws and policies may evolve, the fundamental identity of the Constitution—the principles of democracy, secularism, rule of law, and judicial review—remain inviolable.

References (Bluebook, 20th ed.)

1. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
2. Shankari Prasad v. Union of India, AIR 1951 SC 458.
3. Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.
4. I.C. Golaknath v. State of Punjab, AIR 1967 SC 1643.
5. Indira Gandhi v. Raj Narain, 1975 Supp SCC 1.
6. Minerva Mills v. Union of India, (1980) 3 SCC 625.
7. I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1.
8. Granville Austin, Working a Democratic Constitution: A History of the Indian Experience (Oxford Univ. Press 1999).
9. H.M. Seervai, Constitutional Law of India (4th ed., Universal Law Publishing 2012).