CASE:

According to the Constitution, Parliament and the state legislatures in India have the power to
make laws within their respective jurisdictions. This power is not absolute in nature. The
Constitution vests in the judiciary, the power to adjudicate upon the constitutional validity of all
laws. If a law made by Parliament or the state legislatures violates any provision of the
Constitution, the Supreme Court has the power to declare such a law invalid or ultra vires.
Whereas the founding fathers wanted the Constitution to be an adaptable document rather
than a rigid framework for governance hence the provision of amendments were given in
Article 368.

The Keshavananda Bharti case depicts the tussle between Articles 13(2) and 368.

The Kesavananda Bharati case was the culmination of a serious conflict between the judiciary
and the government. It is popularly known as fundamental rights case. Under this case Supreme
Court of India outlined the Basic Structure doctrine of the Constitution and it can be regarded
as a second sitting of 'Constituent Assembly'. The fundamental question dealt in Kesavananda
Bharati v State of Kerala is whether the power to amend the constitution is an unlimited, or
there is identifiable parameters regarding powers to amend the constitution.

Background

In order to understand the famous case of Kesavananda Bharathi, one must trace through the
basics, events and cases which led to the historic decision.

The Bihar Land Reforms Act, 1950 which was in contravention of then fundamental Right to
Property (Article 31). It was hit by 13(3) as it was infringing Article 31 (Part III, Fundamental
Rights). The Act was challenged in High Court which held the act to be unconstitutional for
being violative of Article 14 of the Constitution.

Thus in order to protect and validate zamindari abolition laws, the Government made First
Amendment of the Constitution of India which made several changes to the Fundamental
Rights provisions of the constitution. Article 31-A and 31 B was also added. Ninth Schedule was
inserted which protects any legislation inserted within the schedule, from judicial review.

Hence the buildup to Kesavananda was marked by a series of cases and decisions that set the
stage for the case itself. At the core of all these cases was the basic question: Was Parliament's
power to amend the Constitution unlimited, since it represented the will of the people and its
majority, or was that power circumscribed when it came to certain fundamental rights of the
people?
Series of cases prior to Kesavananda Bharti case are following.

1) Shankari Prasad vs. Union of India (1951)

The constitutional validity of first amendment (1951), which curtailed the right to property, was
challenged. The SC ruled out that the power to amend the Constitution under Article 368 also
included the power to amend fundamental rights and that the word "law" in Article 13 (8)
includes only an ordinary law made in exercise of the legislative powers and does not include
Constitutional amendment which is made in exercise of constituent power. Therefore, a
Constitutional amendment will be valid even if it abridges or takes any of the fundamental
rights.

2) Sajjan Singh V. State of Rajasthan (1965)

The validity of the 17th Amendment Act, 1964 (which changed the definition of an "estate"
given in article 31A of the Constitution so as to include therein lands held under ryotwari
settlement in addition to other lands in respect of which provisions are normally made in land
reform enactments. The Amendment also added 44 additional State enactments relating to
land reforms to the Ninth Schedule to the Constitution in order to secure their constitutional
validity and prevent them from being challenged before the judiciary on the ground that they
are inconsistent with any of the provisions of Part III of the Constitution relating to
Fundamental Rights. This was challenged on the ground that one of the acts inserted by the
amendment in the 9th Schedule affected the petitioner on the basis that the amendment fell
within the purview of Article 368.

Supreme Court approved the judgment in Shankari Prasad case and held that on Article 13 (2)
the case was rightly decided. Amendment includes amendment to all provisions of the
Constitution.

3) Golaknath V. State of Punjab (1967)

The Hon'ble Supreme Court prospectively overruled its decision in Shankari Prasad and Sajjan
Singh cases and held that Parliament had no power to amend Part III of the Constitution so as
to abridge or take away any of the Fundamental Rights. It also added that Article 368 merely
lays down the procedure for the purpose of amendment. Further, the Court said that an
amendment is a law under Article 13(2) of the Constitution of India and if it violates any
fundamental right, it may be declared void. Therefore, amendments which "take away or
abridge" the Fundamental Rights provisions cannot be passed. Article 368 does not contain a
power to amend the constitution but only a procedure.

To nullify the Golaknath verdict, Parliament enacted the 24th Amendment to the Constitution,
laying down that its powers to amend the Constitution were unrestricted and unlimited. Finally
all the issues related to it was challenged in Keshavanand Case.
The Kesavananda case (1973)

Under this Supreme Court declared 31 C as unconstitutional and invalid on the ground that
judicial review is basic structure and hence cannot be taken away.

The Supreme Court reviewed the decision in Golaknath v. State of Punjab, and considered the
validity of the 24th, 25th, 26th and 29th amendments.

Thus, the Supreme Court laid down the Basic Structure Doctrine in this case.

Basic structure includes:

 Supremacy of the Constitution • Unity and integrity of the nation

• Republican and democratic form of • Sovereignty of India

government
• Democratic character of the polity
• Secular character of the
Constitution • Unity of the country

• Separation of powers between the • Essential features of the individual

legislature, executive and the freedoms secured to the citizens
judiciary
• Mandate to build a welfare state
• Federal character of the
Constitution

• The mandate to build a welfare

state

Ambiguity of the Judgment

Kesavananda Bharati actually left an ambigious historical legacy.

• It said that Parliament could not interfere with the basic structure of the Constitution,
but left open the question of what constituted "basic structure". As to what are these
basic features, the debate still continues.

• The judgment also refused to consider the right to property as a fundamental right that
was covered by the 'basic structure' doctrine. Despite that, the right to private property,
is more solid today, and yet not absolute, as it should be in a market economy.
 • This judgment 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.

• The basic structure doctrine applies only to the constitutionality of amendments and
not to ordinary Acts of Parliament, which must conform to the entirety of the
Constitution and not just to its basic structure.

Significance

• The most significant contribution by Kesavananda Bharati judgment is the recognition

of supremacy of the Constitution of India and its unalterable features.

• 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.

Conclusion

This case upheld the changes in 24th amendment in Article 368 and Article 13 of Indian
Constitution by overruling Golaknath Judgment. It determined the fabric of Indian constitution
which is still relevant and serving as Fundamental Rights case.