Kesavananda Bharati v. State of Kerala

The Kesavananda Bharati judgement or His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. (case citation: (1973) 4 SCC 225) is a landmark decision of the Supreme Court of India that outlined the basic structure doctrine of the Constitution.[2] Justice Hans Raj Khanna asserted through this doctrine that the constitution possesses a basic structure of constitutional principles and values. The Court partially cemented the prior precedent Golaknath v. State of Punjab, which held that constitutional amendments pursuant to Article 368 were subject to fundamental rights review, by asserting that only those amendments which tend to affect the 'basic structure of the Constitution' are subject to judicial review. At the same time, the Court also upheld the constitutionality of first provision of Article 31-C, which implied that any constitutional amendment seeking to implement the Directive Principles, which does not affect the 'Basic Structure', shall not be subjected to judicial review.

Kesavananda Bharati v. State of Kerala
CourtSupreme Court of India
Full case nameKesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr.
Citation(s)(1973) 4 SCC 225: AIR 1973 SC 1461
Holding
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.
Case opinions
MajorityS.M.Sikri C. J. Hegde and Mukherjea, JJ.; Shelat and Grover, JJ.; Jaganmohan Reddy, J.; Khanna, J.
DissentRay J.; Palekar J.; Mathew J.; Beg J.; Dwivedi J.; Chandrachud J.
Laws applied
Constitution of India, Criminal Procedure Code (CrPC), Indian Evidence Act, Indian Contract Act 1872

The basic structure doctrine forms the basis of 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 Constitution 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.[3]

Although the court upheld the basic structure doctrine by a narrow margin, 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 Constitution 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.[4]

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 act 1973

Facts
Kesavananda Bharati (center) at the Kumbh Mela in February 2013.

In February 1970 Swami Kesavananda Bharati, senior plaintiff and head of Edneer Matha - a Hindu Matha 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. A noted Indian jurist, Nanabhoy Palkhivala, convinced Swami into filing his petition under Article 26, 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 case had been heard for 68 days, the arguments commencing on October 31, 1972, and ending on March 23,1973, and it consists of 200 pages.[5][6][7][8][9][10][9][11] [10][12][13][14][15]

Judgment

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 Constitution Bench of 13 Judges. The bench gave eleven separate judgments, which agreed on some points and differed on others.[16] Nanabhoy Palkhivala, assisted by Fali Nariman and Soli Sorabjee, presented the case against the government in both cases.[17]

Majority judgement

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. 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 abridgment of fundamental rights could be affected 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.[16]

The nine signatories to the statement were

  1. Chief Justice S M Sikri
  2. J. M. Shelat
  3. K.S. Hegde
  4. A.N. Grover
  5. B. Jaganmohan Reddy
  6. D.G. Palekar
  7. H R Khanna
  8. A.K. Mukherjee
  9. Y.V. Chandrachud.

Four judges did not sign

  1. A.N. Ray,
  2. K.K. Mathew
  3. M.H. Beg
  4. S.N. Dwivedi.[18]

S.M. Sikri, Chief Justice

CJI S M Sikri 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 Chief Justice, fundamental rights conferred by Part III of the Constitution of India cannot be abrogated, though a reasonable abridgment 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 & 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 31d, as they hen, 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 J.

H R Khanna has given in his judgment that the Parliament had full power to amend the Constitution, however, since it is only a "power to amend", the basic structure or framework of the structure should remain intact. While as per the aforesaid views of the six learned Judges, certain "essential elements" ( which included fundamental rights) of the judgment cannot be amended as there are certain implied restrictions on the powers of the parliament.

According to the Judge, although it was permissible for the Parliament to effect changes in exercise of its amending power 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.

This gave birth to the basic structure doctrine, which has been considered as the cornerstone of the Constitutional law in India.[4] [19]

Significance

This judgement ruled that Article 368 does not enable Parliament in its constituent capacity to delegate its function of amending the Constitution to another legislature or to itself in its ordinary legislative capacity.[20] This ruling made all the deemed constitutional amendments stipulated under the legislative powers of the parliament as void and inconsistent after the 24th constitutional amendment. These are articles 4 (2), 169 (3)-1962, 239A2-1962, 244A4-1969, 356 (1)c, para 7(2) of Schedule V and para 21(2) of Schedule VI.[21] Also articles 239AA(7)b-1991, 243M(4)b-1992, 243ZC3-1992 and 312(4)-1977 which are inserted by later constitutional amendments and envisaging deemed constitutional amendments under legislative powers of the parliament, should be invalid. The Supreme Court declared in the case ‘A. K. Roy, Etc vs Union Of India And Anr on 28 December 1981’ that the article 368(1) clearly defines constituent power as 'the power to amend any provision of the constitution by way of an addition, variation or repeal'. it reiterated that constituent power must be exercised by the parliament itself in accordance with the procedure laid down in article 368.[22]

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".[23]

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 also 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).[24]

Books
  • T R Andhyarujina, who was a counsel in this case, 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.[11][14][25][25][26][27][28][29][30][31]
  • "Basic Structure Constitutionalism: Revisiting Kesavananda Bharati" was published by Eastern Book Company in 2011 which was edited by Sanjay S. jain and Sathya Narayan.[30]

See also

Notes
  1. Datar, Arvind P. (24 April 2013). "The case that saved Indian democracy". Chennai, India: The Hindu. Retrieved 12 August 2013.
  2. "Kesavananda Bharati ... vs State Of Kerala And Anr on 24 April, 1973". Indian Kanoon. Retrieved 24 June 2012.
  3. "Kesavananda Bharati ... vs State Of Kerala And Anr on 24 April, 1973". Indian Kanoon. para. 787. Retrieved 24 June 2012.
  4. "Revisiting a verdict". Chennai, India: Frontline. 14–27 January 2012. Archived from the original on 3 December 2013. Retrieved 24 June 2012.
  5. Datar, Arvind P. (24 April 2013). "The case that saved Indian democracy". The Hindu. ISSN 0971-751X. Retrieved 30 September 2018.
  6. Austin, Granville (1999). Working a Democratic Constitution - A History of the Indian Experience. New Delhi: Oxford University Press. pp. 258. ISBN 0-19-565610-5.
  7. Datar, Arvind P. (24 April 2013). "The case that saved Indian democracy". The Hindu. Chennai, India.
  8. KESAVANANDA BHARATI CASE | Legal Articles and Essays
  9. Kesavananda Bharati's Case | Arijit Pasayat, Ashok Bhan, Y.K. Sabharwal, S.H. Kapadia, C.K. Thakker, P.K. Balasubramanyan
  10. Kesavananda Bharati vs. State of Kerala
  11. Extraordinary Case Study - Indian Express
  12. "Event - THE KESAVANANDA BHARATI CASE - LU November 2011". Archived from the original on 4 March 2016. Retrieved 9 August 2013.
  13. Kesavananda Bharathi case saved constitution
  14. Revisiting a verdict
  15. 40 Years of Kesavananda Bharati! | subjudiced
  16. "Constitution Amendment: Nature and Scope of the Amending Process" (PDF). Lok Sabha Secretariat. pp. 16–17. Archived from the original (PDF) on 3 December 2013. Retrieved 1 December 2013. This article incorporates text from this source, which is in the public domain.
  17. Satya Prateek (2008). "Today's Promise, Tomorrow's Constitution: 'Basic Structure', Constitutional Transformations And The Future Of Political Progress In India" (PDF). NUJS Law Review. West Bengal National University of Juridical Sciences. 1 (3). Retrieved 17 July 2012.
  18. G. G. Mirchandani (1 January 1977). Subverting the Constitution. Abhinav Publications. pp. 39–40. Retrieved 8 December 2013.
  19. "Basic structure of the Constitution revisited". Delhi, India: The Hindu. 21 May 2007. Retrieved 25 May 2015.
  20. "Para 506e of Kesavananda Bharati v. State of Kerala, (AIR 1973 SC 1461)". 1973. Retrieved 1 December 2014.
  21. "Full text of the Constitution of India" (PDF). Archived from the original (PDF) on 9 September 2014. Retrieved 11 August 2014. This article incorporates text from this source, which is in the public domain.
  22. "Pages 311 & 312 of A. K. Roy, Etc vs Union Of India And Anr on 28 December, 1981". 1981. Retrieved 1 December 2014.
  23. Supreme Court Bar Association Archived 2009-10-04 at the Wayback Machine
  24. "Archived copy". Archived from the original on 20 December 2010. Retrieved 2 December 2013.CS1 maint: archived copy as title (link)
  25. Andhyarujina, T R (2012). The Kesavananda Bharati Case: The untold story of struggle for supremacy by Supreme Court and Parliament. India: Universal Law. ISBN 978-93-5035140-6.
  26. Venkatesan, J. (16 October 2011). "Book on Kesavananda Bharati case to be released on Tuesday". The Hindu. Chennai, India.
  27. 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
  28. Book on "Kesavananda Bharati case" - General Knowledge Today
  29. "Book Review - THE KESAVANANDA BHARATI CASE - LU May 2012". Archived from the original on 2 May 2014. Retrieved 18 August 2013.
  30. "Revisiting a verdict". The Hindu. Chennai, India.
  31. Kesavananda Bharati Case : The Untold Story Of Struggle For Supremacy By Supreme Court &: Tr Andhyarujina: Text Books at Sapna Online
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