Kesavananda Bharati v.

State of Kerala

1

Kesavananda Bharati v. State of Kerala
Kesavananda Bharati Sripadagalvaru and Ors v. State of Kerala and Anr

Supreme Court of India

Full case name: His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. Citations: 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 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. Laws applied 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.

€The Hindu - in April 2013, on the occasion of the 40th Anniversary,

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.

Nani Palkhivala. 2. the passage of the 39th Amendment proved that in fact this apprehension was well-founded. that although no part of the constitution.[1][2][3][4][5] [6] [7][8] [9] The Supreme Court reviewed the decision in Golaknath v. 25th and 29th Amendments Acts are valid. a noted Indian jurist. the underlying apprehension of the majority bench that elected representatives could not be trusted to act responsibly was perceived to be unprecedented.a Hindu Mutt situated in Edneer. State of Punjab. € Seven judges held (two judges dissenting. and the subsequent attempt to suppress her prosecution through the 39th Amendment. including fundamental rights. Majority judgement The Court held. by a margin of 7-6. 1971 is valid. it has since gained widespread acceptance and legitimacy due to subsequent cases and judgments. was beyond the amending power of Parliament (thus overruling the 1967 case). convinced the Swami into fighting his petition under Article 26 (not Article 29). When the Kesavananda case was decided. € 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). overruling previous decisions that suggested that the right to property could not be restricted. challenged the Kerala government's attempts. a village in Kasaragod District of Kerala. The Kesavananda judgment also defined the extent to which Parliament could restrict property rights. consisting of multiple opinions taking up one complete volume in the law reporter "Supreme Court Cases". The case was a culmination of a series of cases relating to limitations to the power to amend the Indian constitution. under two state land reform acts. Senior Pontiff and head of "Edneer Mutt" . Primary among these was the imposition of the state of emergency by Indira Gandhi in 1975. the outcome would profoundly affect India's democratic processes. . The case was heard by the largest ever Constitutional Bench of 13 Judges. Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution. However. Nine judges (including two dissentients) signed a statement of summary for the judgment that reads: 1. 2 Case The case originated in February 1970 when Swami HH Sri Kesavananda Bharati. The decision of the Judges is complex. Raj Narain. assisted by Fali Nariman. Nanabhoy Palkhivala. which agreed on some points and differed on others. Although the state invoked its authority under Article 31. and considered the validity of the 24th. presented the case against the government in both cases. Even though the hearings consumed five months. In Indira Nehru Gandhi v. concerning the right to manage religiously owned property without government interference. to impose restrictions on the management of its property. 3. Golak Nath•s case is over-ruled. the "basic structure of the Constitution could not be abrogated even by a constitutional amendment". € 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. The Bench gave eleven judgements. The findings included the following: € All of the Judges held that the 24th. 25th. 26th and 29th Amendments. State of Kerala Although the court upheld the basic structure doctrine by only the narrowest of margins. The Constitution (Twenty-fourth Amendment) Act. in pursuit of land reform and the redistribution of large landholdings to cultivators. one leaving this point open) that "there are no inherent or implied limitations on the power of amendment under Article 368". € 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". 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.Kesavananda Bharati v.

6.N. every provision of the Constitution was open to amendment provided the basic foundation or structure of the Constitution was not damaged or destroyed.N. fundamental rights conferred by Part III of the Constitution of India cannot be abrogated. However. Chief Justice S M Sikri. The four judges who did not sign the statement were A. though a reasonable abridgement of those rights could be effected in public interest. the Court affirmed another proposition also asserted in the Golaknath case.M. according to the learned Chief Justice. Ray. The building of a welfare State is the . A. 3 S. 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. According to the learned Judges. is founded on a social philosophy and as such has two main features basic and circumstantial. 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. K. 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. 1971 is valid. Dwivedi. JJ Held that the preamble to the Constitution contains the clue to the fundamentals of the Constitution. 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. K. it would be that while Fundamental Rights cannot be abrogated. Jaganmohan Reddy. 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. There is a limitation on the power of amendment by necessary implication which was apparent from a reading of the preamble and therefore.H. 1971 is valid. 5. in Article 368 means any addition or change in any of the provisions of the Constitution within the broad contours of the preamble. The basic constituent remained constant. Shelat.M. Palekar. the Court settled in favour of the view that Parliament has the power to amend the Fundamental Rights also. Applied to Fundamental Rights. inserted by the 24th Amendment. Mukherjee and Yeshwant Vishnu Chandrachud. Accordingly. The Constitution (Twenty-ninth Amendment) Act. The first part of section 3 of the Constitution (Twenty-fifth Amendment) Act. H R Khanna.Kesavananda Bharati v. Mathew. Grover. According to the learned Judges.S. and Justices J. Section 2(a) and 2(b) of the Constitution (Twenty-fifth Amendment) Act. M.G. 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.K. Hegde. Beg and S. This balance and harmony between two integral parts of the Constitution forms a basic element of the Constitution which cannot be altered. 1971 is valid.K. State of Kerala 4. B. A. Upholding the validity of clause (4) of article 13 and a corresponding provision in article 368(3). but not so as to result in damaging or destroying the structure and identity of the Constitution. reasonable abridgement of Fundamental Rights could be effected in the public interest. JJ Held that the Constitution of India which is essentially a social rather than a political document.N. Parts III and IV of the Constitution which respectively embody the fundamental rights and the directive principles have to be balanced and harmonised. D. 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. Hegde and Mukherjea. the circumstantial was subject to change. the expression "amendment of this Constitution". The nine signatories to the above were Chief Justice S M Sikri. 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. According to the learned Chief Justice. Shelat and Grover. made in order to carry out the basic objectives of the Constitution. Sikri.

it was not permissible to touch the foundation or to alter the basic institutional pattern. Justices Hegde and Mukherjea. which the repeal or abrogation brings about. The word 'amendment' could not possibly embrace the right to abrogate the pivotal features and the fundamental freedoms and therefore. The secular character of the Constitution. 4 Jaganmohan Reddy. 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. that part of the basic structure could not be damaged or destroyed. According to the learned Judge. the provisions of Article 31C. 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. in exercise of its amending power. Chief Justice Sikri. Defining the basic structure The majority had differing opinions on what the "basic structure" of the Constitution comprised. provided a separate and shorter list: € The sovereignty of India. € The democratic character of the polity. could not have the effect of empowering the Parliament to destroy or abrogate the basic structure or framework of the Constitution. the words "amendment of the Constitution" in spite of the width of their sweep and in spite of their amplitude. Parliament had the right to amend any and every provision of the Constitution. Therefore. The federal character of the Constitution. € Maintenance of the unity and integrity of India. 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. as they stood then. 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. human freedoms have to suffer a total destruction. which meant that the basic structure or framework of the Constitution must survive any amendment of the Constitution. in their opinion. to effect changes so as to meet the requirements of changing conditions. According to the learned Judge. altogether abrogated the right given by Article 14 and were for that reason unconstitutional. State of Kerala ultimate goal of every Government but that does not mean that in order to build a welfare State. J Held that the word 'amendment' was used in the sense of permitting a change. 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. Applying these tests. In conclusion. the width of the power of amendment could not be enlarged by amending the amending power itself. the learned Judge held that though the power of amendment was wide. € The unity of the country. Therefore. writing for the majority. Maintenance of the separation of powers. € The sovereignty of the country. the learned Judges invalidated Article 31C even in its un-amended form.Kesavananda Bharati v. indicated that the basic structure consists of the following: € € € € € The supremacy of the constitution. Subject to these limitations. although it was permissible to the Parliament. in contradistinction to destruction. A republican and democratic form of government. freedom of expression and equality of status and opportunity. .

The basic structure doctrine was adopted by the Supreme Court of Bangladesh in 1989.[10] The 42nd Amendment. Justice Ajit Nath Ray. Equality of status and opportunity. € The mandate to build a welfare state. economic and political justice.Kesavananda Bharati v. Grover and Hegde. [19] [20] Related Links € € € € € Indian law Edneer Edneer Mutt Sri Kesavananda Bharati Nanabhoy Palkhivala . Advocate C. which was unprecedented in Indian legal history. enacted in 1976. Shelat. Aftermath The government of Indira Gandhi did not take kindly to this implied restriction on its powers by the court. Daphtary termed the incident as "the blackest day in the history of democracy". It has been published by Universal Law Publishing Company in 2011. 5 The interpretation of the basic structure has since evolved in numerous other court rulings since the Kesavananda judgment. The provision of social. and thus could be represented by: € € € € A sovereign democratic republic. 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". faith and worship. [12] [13] [14] [15] [16] [17] [18] € "Basic Structure Constitutionalism: Revisiting Kesavananda Bharati" was published by Eastern Book Company in 2011 which was edited by Sanjay S. is considered to be the immediate and most direct fall out of the judgement. stating that the basic features of the constitution were laid out by that part of the document. 1989 BLD (Spl. Apart from it.K. 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. was promoted to Chief Justice of India superseding three senior Judges. who was among the dissenters. in its ruling on Anwar Hossain Chowdhary v. Liberty of thought. 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. belief.) 1). by expressly relying on the reasoning in the Kesavananda case. Justice Jaganmohan Reddy preferred to look at the preamble. On 26 April 1973. 165. State of Kerala € Essential features of individual freedoms. Div. jain and Sathya Narayan. expression. Bangladesh (41 DLR 1989 App.[11] Books € T R Andhyarujina.

htm& date=fl2901/ & prd=fline& [17] Kesavananda Bharati Case : The Untold Story Of Strugle For Supremacy By Supreme Court &: Tr Andhyarujina: Text Books at Sapna Online (https:/ / sapnaonline.Buy online now at Jain Book Agency.LU May 2012 (http:/ / lawyersupdate. com/ article. State of Kerala (http:/ / www. Delhi based book store (http:/ / www. ece) [13] The Kesavananda Bharati Case : The Untold Story of Struggle for Supremacy by Supreme Court and Parliament. P. com/ news/ national/ book-on-kesavananda-bharati-case-to-be-released-on-tuesday/ article2543671. aspx?233587) [4] Kesavananda Bharati vs.Practical Lawyer (http:/ / www. com/ product_info.The Hindu (http:/ / www. ece) [2] KESAVANANDA BHARATI CASE | Legal Articles and Essays (http:/ / www. com/ news/ kesavananda-bharathi-case-saved-constitution/ 244934-60-122. lawexams. shtml) [11] http:/ / www. com/ subject/ Law/ notes/ fundamental-right-kesavanda. php?products_id=100188) [20] Eastern Book Company .THE KESAVANANDA BHARATI CASE . thehindu. in/ product/ kesavananda-bharati-case-untold-story-struggle-supremacy-supreme-court-and-parliament#. com/ lawyer/ articles/ 74v1a5..LU November 2011 (http:/ / lawyersupdate.Andhyarujina (ISBN:9789350350997): in India: JustBook.K.The Hindu (http:/ / www. hinduonnet. thehindu. State of Kerala 6 References [1] The case that saved Indian democracy . in/ LU/ 24/ 827. in/ static/ html/ fl2901/ stories/ 20120127290107100. htm) [9] 40 Years of Kesavananda Bharati! | subjudiced (http:/ / subjudiced. htm [12] Book on Kesavananda Bharati case to be released on Tuesday . com/ opinion/ op-ed/ the-case-that-saved-indian-democracy/ article4647800. Y. Kapadia. com/ kesavananda-bharati-case-the-untold-story-of-strugle-for-supremacy-by-supreme-court-3901905) [18] Buy Book: The Kesavananda Bharati Case: The untold story of struggle for supremacy by Supreme Court and Parliament by T. pl?file=20120127290107100. com/ news/ extraordinary-case-study/ 863792/ ) [6] Event . com/ 2013/ 04/ 24/ 40-years-of-kesavananda-bharati/ ) [10] Supreme Court Bar Association (http:/ / www. html) [8] Revisiting a verdict (http:/ / www.K. frontline. outlookindia. ebcwebstore. indianexpress. civilserviceindia. com/ services/ network/ scba/ history. com/ fline/ fl1809/ 18090950. UhC5jtJgAUU) [19] Basic Structure Constitutionalism. wordpress..Kesavananda Bharati v. jainbookagency. gktoday. asp) [16] http:/ / www. ebc-india. com/ newdetails. in/ LU/ 29/ 646. com/ thehindu/ thscrip/ print. Sabharwal. co.General Knowledge Today (http:/ / www. C. in/ book-on-kesavananda-bharati-case/ ) [15] Book Review . lexsite. asp) [7] Kesavananda Bharathi case saved constitution (http:/ / ibnlive. in/ legalarticles/ category/ kesavananda-bharati-case/ ) [3] Kesavananda Bharati's Case | Arijit Pasayat.Indian Express (http:/ / www. Thakker. Ashok Bhan. Balasubramanyan (http:/ / www.H. aspx?title=The+ Kesavananda+ Bharati+ Case+ :+ The+ Untold+ Story+ of+ Struggle+ for+ Supremacy+ by+ Supreme+ Court+ and+ Parliament) [14] Book on ‚Kesavananda Bharati caseƒ . htm) .K.R. hindu.THE KESAVANANDA BHARATI CASE .Revisiting Kesavananda Bharati (http:/ / www. co. (http:/ / justbooks. in. S. html) [5] Extraordinary Case Study .

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