Kesavananda Bharati v. State of Kerala
|Kesavananda Bharati Sripadagalvaru and Ors v. State of Kerala and Anr|
|Supreme Court of India|
|There are certain principles within the framework of Indian Constitution which are inviolable and hence cannot be amended by the Parliament. These principles were commonly termed as Basic Structure.|
|Majority by: Sikri C. J. Hegde and Mukherjea, JJ.; Shelat and Gover, JJ.; Jaganmohan Reddy, J.; Khanna, J.
Dissent by: Ray J.; Palekar J.; Khanna J.; Mathew J.; Beg J.; Dwivedi J.; Chandrachud J.
|Constitution of India, Criminal Procedure Code (CrPC), Indian Evidence Act, Indian Contract Act 1872|
|“||Kesavananda Bharathi is the case which saved Indian democracy; thanks to Shri Kesavananda Bharati, eminent jurist Nanabhoy Palkhivala and the seven judges who were in the majority.||”|
His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. (case citation: AIR 1973 SC 1461) is a landmark decision of the Supreme Court of India that outlined the Basic Structure doctrine of the Constitution. Justice Hans Raj Khanna asserted through this doctrine that the constitution possesses a basic structure of constitutional principles and values. The Court overruled the prior precedent Golaknath v. State of Punjab AIR 1967 SC 1643, which held that constitutional amendments pursuant to Article 368 were subject to fundamental rights review.
The Basic Structure doctrine forms the basis of a limited power of the Indian judiciary to review, and strike down, amendments to the Constitution of India enacted by the Indian parliament which conflict with or seek to alter this basic structure of the Constitution.
The 13-judge Constitutional bench of the Supreme Court deliberated on the limitations, if any, of the powers of the elected representatives of the people and the nature of fundamental rights of an individual. In a sharply divided verdict, by a margin of 7-6, the court held that while the Parliament has "wide" powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution.
Although the court upheld the basic structure doctrine by only the narrowest of margins, it has since gained widespread acceptance and legitimacy due to subsequent cases and judgments. Primary among these was the imposition of the state of emergency by Indira Gandhi in 1975, and the subsequent attempt to suppress her prosecution through the 39th Amendment. When the Kesavananda case was decided, the underlying apprehension of the majority bench that elected representatives could not be trusted to act responsibly was perceived to be unprecedented. However, the passage of the 39th Amendment proved that in fact this apprehension was well-founded. In Indira Nehru Gandhi v. Raj Narain, a Constitutional Bench of the Supreme Court used the basic structure doctrine to strike down the 39th amendment and paved the way for restoration of Indian democracy.
The Kesavananda judgment also defined the extent to which Parliament could restrict property rights, in pursuit of land reform and the redistribution of large landholdings to cultivators, overruling previous decisions that suggested that the right to property could not be restricted. The case was a culmination of a series of cases relating to limitations to the power to amend the Indian constitution.
The case originated in February 1970 when Swami HH Sri Kesavananda Bharati, Senior Pontiff and head of "Edneer Mutt" - a Hindu Mutt situated in Edneer, a village in Kasaragod District of Kerala, challenged the Kerala government's attempts, under two state land reform acts, to impose restrictions on the management of its property. Although the state invoked its authority under Article 31, a noted Indian jurist, Nanabhoy Palkhivala, convinced the Swami into fighting his petition under Article 26 (not Article 29), concerning the right to manage religiously owned property without government interference. Even though the hearings consumed five months, the outcome would profoundly affect India's democratic processes.     
The Supreme Court reviewed the decision in Golaknath v. State of Punjab, and considered the validity of the 24th, 25th, 26th and 29th Amendments. The case was heard by the largest ever Constitutional Bench of 13 Judges. The Bench gave eleven judgements, which agreed on some points and differed on others. Nani Palkhivala, assisted by Fali Nariman, presented the case against the government in both cases.
The Court held, by a margin of 7-6, that although no part of the constitution, including fundamental rights, was beyond the amending power of Parliament (thus overruling the 1967 case), the "basic structure of the Constitution could not be abrogated even by a constitutional amendment". The decision of the Judges is complex, consisting of multiple opinions taking up one complete volume in the law reporter "Supreme Court Cases". The findings included the following:
- All of the Judges held that the 24th, 25th and 29th Amendments Acts are valid.
- Ten judges held that Golak Nath's case was wrongly decided and that an amendment to the Constitution was not a "law" for the purposes of Article 13.
- Seven judges held that the power of amendment is plenary and can be used to amend all the articles of the constitution (including the Fundamental Rights).
- Seven judges held (six judges dissenting on this point) that "the power to amend does not include the power to alter the basic structure of the Constitution so as to change its identity".
- Seven judges held (two judges dissenting, one leaving this point open) that "there are no inherent or implied limitations on the power of amendment under Article 368".
Nine judges (including two dissentients) signed a statement of summary for the judgment that reads:
- Golak Nath’s case is over-ruled.
- Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.
- The Constitution (Twenty-fourth Amendment) Act, 1971 is valid.
- Section 2(a) and 2(b) of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid.
- The first part of section 3 of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid. The second part namely "and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy" is invalid.
- The Constitution (Twenty-ninth Amendment) Act, 1971 is valid.
The nine signatories to the above were Chief Justice S M Sikri, and Justices J.M. Shelat, K.S. Hegde, A.N. Grover, B. Jaganmohan Reddy, D.G. Palekar, H R Khanna, A.K. Mukherjee and Yeshwant Vishnu Chandrachud. The four judges who did not sign the statement were A.N. Ray, K.K. Mathew, M.H. Beg and S.N. Dwivedi.
Upholding the validity of clause (4) of article 13 and a corresponding provision in article 368(3), inserted by the 24th Amendment, the Court settled in favour of the view that Parliament has the power to amend the Fundamental Rights also. However, the Court affirmed another proposition also asserted in the Golaknath case, by ruling that the expression "amendment" of this Constitution in article 368 means any addition or change in any of the provisions of the Constitution within the broad contours of the Preamble and the Constitution to carry out the objectives in the Preamble and the Directive Principles. Applied to Fundamental Rights, it would be that while Fundamental Rights cannot be abrogated, reasonable abridgement of Fundamental Rights could be effected in the public interest. The true position is that every provision of the Constitution can be amended provided the basic foundation and structure of the Constitution remains the same. The ruling thus established the principle that the basic structure cannot be amended on the grounds that a power to amend is not a power to destroy.
S.M. Sikri, Chief Justice
S M Sikri, Chief Justice held that the fundamental importance of the freedom of the individual has to be preserved for all times to come and that it could not be amended out of existence. According to the learned Chief Justice, fundamental rights conferred by Part III of the Constitution of India cannot be abrogated, though a reasonable abridgement of those rights could be effected in public interest. There is a limitation on the power of amendment by necessary implication which was apparent from a reading of the preamble and therefore, according to the learned Chief Justice, the expression "amendment of this Constitution", in Article 368 means any addition or change in any of the provisions of the Constitution within the broad contours of the preamble, made in order to carry out the basic objectives of the Constitution. Accordingly, every provision of the Constitution was open to amendment provided the basic foundation or structure of the Constitution was not damaged or destroyed.
Shelat and Grover, JJ
Held that the preamble to the Constitution contains the clue to the fundamentals of the Constitution. According to the learned Judges, Parts III and IV of the Constitution which respectively embody the fundamental rights and the directive principles have to be balanced and harmonised. This balance and harmony between two integral parts of the Constitution forms a basic element of the Constitution which cannot be altered. The word 'amendment' occurring in Article 368 must therefore be construed in such a manner as to preserve the power of the Parliament to amend the Constitution, but not so as to result in damaging or destroying the structure and identity of the Constitution. There was thus an implied limitation on the amending power which prevented the Parliament from abolishing or changing the identity of the Constitution or any of its Basic Structure.
Hegde and Mukherjea, JJ
Held that the Constitution of India which is essentially a social rather than a political document, is founded on a social philosophy and as such has two main features basic and circumstantial. The basic constituent remained constant, the circumstantial was subject to change. According to the learned Judges, the broad contours of the basic elements and the fundamental features of the Constitution are delineated in the preamble and the Parliament has no power to abolish or emasculate those basic elements of fundamental features. The building of a welfare State is the ultimate goal of every Government but that does not mean that in order to build a welfare State, human freedoms have to suffer a total destruction. Applying these tests, the learned Judges invalidated Article 31C even in its un-amended form.
Jaganmohan Reddy, J
Held that the word 'amendment' was used in the sense of permitting a change, in contradistinction to destruction, which the repeal or abrogation brings about. Therefore, the width of the power of amendment could not be enlarged by amending the amending power itself. The learned Judge held that the essential elements of the basic structure of the Constitution are reflected in its preamble and that some of the important features of the Constitution are justice, freedom of expression and equality of status and opportunity. The word 'amendment' could not possibly embrace the right to abrogate the pivotal features and the fundamental freedoms and therefore, that part of the basic structure could not be damaged or destroyed. According to the learned Judge, the provisions of Article 31C, as they stood then, conferring power on Parliament and the State Legislatures to enact laws for giving effect to the principles specified in Clauses (b) and (c) of Article 39, altogether abrogated the right given by Article 14 and were for that reason unconstitutional. In conclusion, the learned Judge held that though the power of amendment was wide, it did not comprehend the power to totally abrogate or emasculate or damage any of the fundamental rights or the essential elements of the basic structure of the Constitution or to destroy the identity of the Constitution. Subject to these limitations, Parliament had the right to amend any and every provision of the Constitution.
H R Khanna
H R Khanna broadly agreed with the aforesaid views of the six learned Judges and held that the word 'amendment' postulated that the Constitution must survive without loss of its identity, which meant that the basic structure or framework of the Constitution must survive any amendment of the Constitution. According to the learned Judge, although it was permissible to the Parliament, in exercise of its amending power, to effect changes so as to meet the requirements of changing conditions, it was not permissible to touch the foundation or to alter the basic institutional pattern. Therefore, the words "amendment of the Constitution" in spite of the width of their sweep and in spite of their amplitude, could not have the effect of empowering the Parliament to destroy or abrogate the basic structure or framework of the Constitution.
Defining the basic structure
The majority had differing opinions on what the "basic structure" of the Constitution comprised.
Chief Justice Sikri, writing for the majority, indicated that the basic structure consists of the following:
- The supremacy of the constitution.
- A republican and democratic form of government.
- The secular character of the Constitution.
- Maintenance of the separation of powers.
- The federal character of the Constitution.
Justices Shelat and Grover in their opinion added three features to the Chief Justice's list:
- The mandate to build a welfare state contained in the Directive Principles of State Policy.
- Maintenance of the unity and integrity of India.
- The sovereignty of the country.
Justices Hegde and Mukherjea, in their opinion, provided a separate and shorter list:
- The sovereignty of India.
- The democratic character of the polity.
- The unity of the country.
- Essential features of individual freedoms.
- The mandate to build a welfare state.
Justice Jaganmohan Reddy preferred to look at the preamble, stating that the basic features of the constitution were laid out by that part of the document, and thus could be represented by:
- A sovereign democratic republic.
- The provision of social, economic and political justice.
- Liberty of thought, expression, belief, faith and worship.
- Equality of status and opportunity.
The interpretation of the basic structure has since evolved in numerous other court rulings since the Kesavananda judgment.
The government of Indira Gandhi did not take kindly to this implied restriction on its powers by the court. On 26 April 1973, Justice Ajit Nath Ray, who was among the dissenters, was promoted to Chief Justice of India superseding three senior Judges, Shelat, Grover and Hegde, which was unprecedented in Indian legal history. Advocate C.K. Daphtary termed the incident as "the blackest day in the history of democracy". Justice Mohammad Hidayatullah (previous Chief Justice of India) remarked that "this was an attempt of not creating 'forward looking judges' but 'judges looking forward' to the office of Chief Justice".
The 42nd Amendment, enacted in 1976, is considered to be the immediate and most direct fall out of the judgement. Apart from it, the judgement cleared the deck for complete legislative authority to amend any part of the Constitution except when the amendments are not in consonance with the basic features of the Constitution.
The basic structure doctrine was adopted by the Supreme Court of Bangladesh in 1989, by expressly relying on the reasoning in the Kesavananda case, in its ruling on Anwar Hossain Chowdhary v. Bangladesh (41 DLR 1989 App. Div. 165, 1989 BLD (Spl.) 1).
- T R Andhyarujina, who was a witness to the court proceedings wrote a book titled "The Kesavananda Bharati Case: The untold story of struggle for supremacy by Supreme Court and Parliament" to discuss the case and the politics involved during and after the judgment was pronounced. It has been published by Universal Law Publishing Company in 2011.          
- "Basic Structure Constitutionalism: Revisiting Kesavananda Bharati" was published by Eastern Book Company in 2011 which was edited by Sanjay S. jain and Sathya Narayan.   
- "The case that saved Indian democracy". The Hindu. Retrieved 12 August 2013.
- "Kesavananda Bharati ... vs State Of Kerala And Anr on 24 April, 1973". Indian Kanoon. Retrieved 2012-06-24.
- "Kesavananda Bharati ... vs State Of Kerala And Anr on 24 April, 1973". Indian Kanoon. para. 787. Retrieved 2012-06-24.
- "Revisiting a verdict". Frontline. Jan 14-27, 2012. Retrieved 2012-06-24.
- Austin, Granville (1999). Working a Democratic Constitution - A History of the Indian Experience. New Delhi: Oxford University Press. p. 258. ISBN 019565610-5.
- The case that saved Indian democracy - The Hindu
- KESAVANANDA BHARATI CASE | Legal Articles and Essays
- Kesavananda Bharati's Case | Arijit Pasayat, Ashok Bhan, Y.K. Sabharwal, S.H. Kapadia, C.K. Thakker, P.K. Balasubramanyan
- Kesavananda Bharati vs. State of Kerala
- Extraordinary Case Study - Indian Express
- Event - THE KESAVANANDA BHARATI CASE - LU November 2011
- Kesavananda Bharathi case saved constitution
- Revisiting a verdict
- 40 Years of Kesavananda Bharati! | subjudiced
- "Constitution Amendment: Nature and Scope of the Amending Process". Lok Sabha Secretariat. pp. 16–17. Retrieved 1 December 2013.
- Satya Prateek (2008). "Today's Promise, Tomorrow's Constitution: 'Basic Structure', Constitutional Transformations And The Future Of Political Progress In India". NUJS Law Review (West Bengal National University of Juridical Sciences) 1 (3). Retrieved 2012-07-17.
- Austin, Granville (1999). Working a Democratic Constitution - A History of the Indian Experience. New Delhi: Oxford University Press. pp. 258–277. ISBN 019565610-5.
- G. G. Mirchandani (01). Subverting the Constitution. Abhinav Publications. pp. 39–40. Retrieved 8 December 2013.
- Jasdeep Randhawa. "Understanding Judicialization Of Mega-Politics : The Basic Structure Doctrine And Minimum Core". Jus Politicum. Retrieved 2012-07-17.
- Supreme Court Bar Association
- Andhyarujina, T R (2012). The Kesavananda Bharati Case: The untold story of struggle for supremacy by Supreme Court and Parliament. India: Universal Law. ISBN 9788175341406 Check
- Book on Kesavananda Bharati case to be released on Tuesday - The Hindu
- The Kesavananda Bharati Case : The Untold Story of Struggle for Supremacy by Supreme Court and Parliament- Buy online now at Jain Book Agency, Delhi based book store
- Book on “Kesavananda Bharati case” - General Knowledge Today
- Book Review - THE KESAVANANDA BHARATI CASE - LU May 2012
- Kesavananda Bharati Case : The Untold Story Of Strugle For Supremacy By Supreme Court &: Tr Andhyarujina: Text Books at Sapna Online
- Buy Book: The Kesavananda Bharati Case: The untold story of struggle for supremacy by Supreme Court and Parliament by T.R.Andhyarujina (ISBN:9789350350997): in India: JustBook...
- Basic Structure Constitutionalism- Revisiting Kesavananda Bharati
- Eastern Book Company - Practical Lawyer