Kesavananda Bharati v. State of Kerala and Others

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

INTRODUCTION

The case of *Kesavananda Bharati v. State of Kerala* represents perhaps the most significant constitutional judgment in Indian legal history. Decided by a 13-judge bench of the Supreme Court of India in 1973, it established the “Basic Structure Doctrine,” which limits Parliament’s power to amend the Constitution. This doctrine continues to serve as a fundamental principle of Indian constitutional law, protecting the essential features of the Constitution from legislative encroachment. The judgment, spanning over 700 pages with 11 separate opinions, stands as a testament to judicial independence and constitutional supremacy in India’s democratic framework.

FACTS OF THE CASE

His Holiness Kesavananda Bharati was the head (*Mathadhipathi*) of Edneer Mutt, a Hindu monastery in Kerala. In March 1970, he filed a petition under Article 32 of the Constitution challenging the Kerala government’s attempts to impose restrictions on the management of religious property under the Kerala Land Reforms Act, 1963 (as amended in 1969).[^1]

During the pendency of the petition, the case expanded significantly in scope. The Parliament had passed the 24th, 25th, 26th, and 29th Amendments to the Constitution, which sought to:

• Remove the fundamental rights-based limitations on the Parliament’s amending power (24th Amendment)
• Place certain laws in the Ninth Schedule to immunize them from judicial review (25th Amendment)
• Abolish various rights related to property ownership (26th Amendment)
• Implement land reforms by placing land ceiling acts beyond judicial scrutiny (29th Amendment)

The petitioner amended his writ petition to challenge the constitutional validity of these amendments.[^2] The central question evolved into whether there were inherent limitations on Parliament’s power to amend the Constitution under Article 368, particularly in relation to fundamental rights.

PROCEDURAL HISTORY

The case was initially heard by a bench of 11 judges. However, recognizing its constitutional significance, Chief Justice S.M. Sikri constituted a larger bench of 13 judges – the largest ever in India’s judicial history. The hearing commenced on October 31, 1972, and continued for 68 working days, concluding on March 23, 1973.[^3]

The case directly challenged the Supreme Court’s previous decision in *Golak Nath v. State of Punjab* (1967), which had held that Parliament could not amend the fundamental rights enshrined in Part III of the Constitution. The constitutional amendments under review were specifically enacted to overcome the restrictions imposed by the *Golak Nath* judgment.

LEGAL ISSUES 

The primary questions before the Court were:

1. Whether the 24th Amendment to the Constitution was valid?
2. Whether Article 368 of the Constitution empowered Parliament to amend any part of the Constitution, including Part III (Fundamental Rights)?
3. If so, whether this amending power was unlimited or subject to inherent limitations?
4. Whether the 25th, 26th, and 29th Amendments were constitutionally valid?
5. Whether the “Basic Structure Doctrine” as propounded in earlier cases should be upheld?

ARGUMENTS

Arguments for the Petitioner 

Led by renowned jurist Nani Palkhivala, the petitioners presented several arguments:

1. **Limited Amending Power**: Parliament’s power to amend the Constitution under Article 368 was limited and did not extend to altering the basic structure or essential features of the [^4]
2. **Natural Rights Theory**: Certain fundamental rights are inherent and natural rights that existed prior to the Constitution and cannot be abrogated by Parliament.
3. **Constitutional Supremacy**: The Constitution established a system where constitutional supremacy, not parliamentary supremacy, was the guiding principle.
4. **Implied Limitations**: Even without explicit limitations, there were implied limitations on the amending power to preserve the identity and continuity of the Constitution.
5. **Democratic Foundation**: The power to destroy or drastically alter the basic features of the Constitution would undermine the democratic foundation on which the Constitution was built.

Arguments for the Respondent

The Union of India and the States, represented by Attorney General Niren De and others, argued:

1. **Unlimited Amending Power**: Article 368 conferred an unlimited power of amendment upon Parliament, including the power to amend any part of the Constitution.
2. **Sovereignty of Parliament**: As representatives of the people, Parliament possessed sovereign power to amend the Constitution in any manner it deemed fit.
3. **No Implied Limitations**: There were no implied limitations on the amending power, and the Court should not read restrictions where none existed in the text.
4. **Distinction Between Amendment and Legislation**: The power to amend the Constitution was different from ordinary legislative power and hence should not be subject to the same
5. **Social Revolution**: Unlimited amending power was necessary to achieve the social revolution envisaged by the Constitution through land reforms and other progressive [^5]

JUDGMENT

The Supreme Court delivered its verdict on April 24, 1973, by a narrow majority of 7:6. The judgment produced seven different opinions on the majority side and six dissenting opinions, making it one of the most complex judgments in Indian legal history.

Majority View

The majority held:

1. **Basic Structure Doctrine**: Parliament’s power to amend the Constitution under Article 368 was not unlimited. While Parliament could amend any provision of the Constitution, it could not alter the “basic structure” or “essential features” of the Constitution.[^6]
2. **Overruling *Golak Nath***: The Court overruled the *Golak Nath* case to the extent that it had held that fundamental rights could not be amended at all. The Court recognized Parliament’s power to amend any part of the Constitution, including fundamental rights, but subject to the preservation of the basic structure.
3. **Validity of Amendments**:

• 24th Amendment: Valid as it merely clarified the position regarding Parliament’s amending
• 25th Amendment: Partially Section 2 inserting Article 31C was valid only to the extent it accorded primacy to Directive Principles in Articles 39(b) and (c), but the clause ousting judicial review was invalid.
• 29th Amendment: Valid, but subject to judicial review to ensure compliance with the basic structure doctrine.

What Constitutes “Basic Structure”?

Different judges in the majority identified various features as part of the “basic structure”:

• Chief Justice Sikri: Supremacy of the Constitution, republican and democratic form of government, secular character, separation of powers, federalism, and fundamental [^7]
• Justice Shelat and Justice Grover: The sovereignty of India, democratic character, unity of the nation, essential features of individual freedoms, and mandate to build a welfare state.
• Justice Hegde and Justice Mukherjea: Sovereignty of India, democratic nature of the polity, unity of the nation, dignity of the individual, and freedom of the individual.
• Justice Jaganmohan Reddy: A sovereign democratic republic, parliamentary democracy, and three organs of the state.
• Justice Khanna: Democracy and fundamental

Dissenting View 

The six dissenting judges (Ray, Palekar, Mathew, Beg, Dwivedi, and Chandrachud JJ.) held that:

1. Parliament’s amending power under Article 368 was unlimited and could extend to any part of the Constitution.
2. There were no inherent or implied limitations on the amending
3. The theory of basic structure had no juridical basis and would introduce uncertainty in constitutional law.
4. Fundamental rights were not immune from amendment, and Parliament, representing the will of the people, could amend any provision of the Constitution.[^8]

ANALYSIS AND SIGNIFICANCE

Constitutional Significance

The *Kesavananda Bharati* case is of monumental significance for several reasons:

1. **Basic Structure Doctrine**: It established the doctrine of basic structure, imposing implicit limitations on Parliament’s amending power. This doctrine has been reaffirmed in numerous subsequent cases, including *Indira Nehru Gandhi Raj Narain* (1975) and *Minerva Mills v. Union of India* (1980).[^9]
2. **Constitutional Supremacy**: It reinforced the principle of constitutional supremacy over parliamentary supremacy, ensuring that the essence of the Constitution remains protected from transient political majorities.
3. **Judicial Review**: It preserved the power of judicial review as an essential feature of the Constitution, allowing courts to strike down constitutional amendments that destroy the basic
4. **Political Context**: The judgment came during a period of political tension, with a government possessing an overwhelming majority in It acted as a check on potential authoritarian tendencies.
5. **Balance of Powers**: It struck a delicate balance between the need for constitutional stability and the requirement of flexibility to address changing societal needs.

Jurisprudential Impact 

The case had profound jurisprudential implications:

1. **Living Constitutionalism**: It embraced the concept of a living constitution that evolves while preserving its core identity.
2. **Natural Law Influence**: The judgment reflected natural law thinking by recognizing certain inalienable aspects of the constitutional framework.
3. **Creative Interpretation**: It demonstrated the Court’s willingness to engage in creative constitutional interpretation to safeguard democratic values.
4. **Global Influence**: The basic structure doctrine has influenced constitutional jurisprudence in several other countries, including Bangladesh, Nepal, and Pakistan.[^10]

Subsequent Developments

The basic structure doctrine established in *Kesavananda Bharati* has been applied and developed in numerous subsequent cases:

1. In *Indira Nehru Gandhi Raj Narain* (1975), the Supreme Court applied the doctrine to strike down the 39th Amendment that sought to validate the election of the Prime Minister.
2. *Minerva Mills Union of India* (1980) further developed the doctrine by holding that the balance between fundamental rights and directive principles was part of the basic structure.
3. *I.R. Coelho State of Tamil Nadu* (2007) extended the application of the doctrine to laws placed in the Ninth Schedule, subjecting them to basic structure review.
4. In *Supreme Court Advocates-on-Record Association Union of India* (2015), the Court held that judicial independence was part of the basic structure and struck down constitutional amendments altering the judicial appointment process.[^11]

CRITICAL EVALUATION

Strengths of the Judgment

1. **Constitutional Protection**: The judgment provided a robust mechanism to protect the Constitution against potential abuse of amendment power.
2. **Democratic Safeguard**: It serves as a safeguard against majoritarian excesses, protecting minority rights and democratic values.
3. **Adaptability with Stability**: The doctrine allows constitutional evolution while preserving fundamental constitutional values.
4. **Judicial Statesmanship**: The judgment represents a remarkable example of judicial statesmanship in balancing competing constitutional imperatives.

Criticisms of the Judgment

1. **Counter-Majoritarian Difficulty**: Critics argue that the doctrine gives unelected judges the power to overturn amendments passed by elected representatives.
2. **Doctrinal Uncertainty**: The lack of an exhaustive definition of “basic structure” introduces an element of unpredictability in constitutional adjudication.
3. **Textual Basis**: The doctrine has been criticized for lacking explicit textual foundation in the Constitution.
4. **Democratic Deficit**: It potentially constrains the democratic will as expressed through constitutional amendments.[^12]

CONCLUSION

The *Kesavananda Bharati* case remains the cornerstone of Indian constitutional jurisprudence. By establishing the basic structure doctrine, the Supreme Court created a unique constitutional innovation that has protected India’s democratic framework for nearly five decades. The doctrine serves as a testament to constitutional resilience, balancing the need for change with the imperative of preserving core constitutional values.

While valid criticisms exist regarding the democratic implications of the doctrine, its practical application has generally been measured and restrained. The Court has invoked the doctrine sparingly, acknowledging the primarily legislative nature of constitutional amendments while reserving the power to intervene when fundamental constitutional values are threatened.

As India continues to evolve as a constitutional democracy, the *Kesavananda Bharati* judgment stands as a judicial landmark that has contributed significantly to constitutional stability and the protection of democratic values. Its enduring legacy lies in its affirmation that even in a democracy, there are certain constitutional principles so fundamental that they remain beyond the reach of transient majorities.

REFERENCE(S) 

[^1]: Krishnaswamy, S. (2009). *Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine*. Oxford University Press, pp. 43-45.

[^2]: Sathe, S.P. (2002). *Judicial Activism in India: Transgressing Borders and Enforcing Limits*. Oxford University Press, pp. 65-70.

[^3]: Austin, G. (1999). *Working a Democratic Constitution: A History of the Indian Experience*. Oxford University Press, pp. 258-277.

[^4]: Palkhivala, N.A. (1974). *Our Constitution Defaced and Defiled*. Macmillan India, pp. 30-42.

[^5]: Baxi, U. (1985). *Courage, Craft and Contention: The Indian Supreme Court in the Eighties*. N.M. Tripathi, pp. 107-110.

[^6]: *Kesavananda Bharati v. State of Kerala*, (1973) 4 SCC 225, para 787 (per Sikri CJ). [^7]: Ibid., paras 280-281.

[^8]: Ibid., paras 1446-1450 (per Ray J., dissenting).

[^9]: Seervai, H.M. (1996). *Constitutional Law of India: A Critical Commentary*, 4th ed., Vol.

3. N.M. Tripathi, pp. 3099-3107.

[^10]: Khosla, M. (2020). *India’s Founding Moment: The Constitution of a Most Surprising Democracy*. Harvard University Press, pp. 191-198.

[^11]: Bhatia, G. (2018). *The Transformative Constitution: A Radical Biography in Nine Acts*. HarperCollins India, pp. 124-130.

[^12]: Suresh, M. & Narrain, S. (eds.) (2014). *The Shifting Scales of Justice: The Supreme Court in Neo-liberal India*. Orient BlackSwan, pp. 57-61.