KESAVANAND

A BHARATI
CASE
(AIR 1973 SC
1461)
• Landmark judgement (precedent)

• 13 judges bench

• Gave birth to the concept of “BASIC STRUCTURE DOCTRINE”

• Paved the way for struggle between parliament and judiciary

• Fight for absolute power in regards to amendment power of any provision of  the
constitution by virtue of Article 368.
 History of amending power of
parliament
• Shankari Prasad v. UOI (AIR 1951 SC 458)

• Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845)

• IC Golaknath v. St. Of Punjab (AIR 1967 SC 1643)

 Shankari Prasad v. UOI (AIR 1951 SC 458)

• 1st amendment challenged (Art 31 A and 31 B)

• Question on difference between ordinary legislative power and amending  constituent

power.

• Held that Art 13 (2) did not affect amendments made under Art. 368.
Sajjan Singh v. State of Rajasthan (AIR 1965
SC 845)

• 17th Amendment was challenged

• Held that amendment is valid

• Parliament can amend anything in the constitution according to procedure laid down in

Art.368.
 IC Golaknath v. St. Of Punjab (AIR 1967
SC 1643)

• 1st Amendment, 4th and 17th amendment was challenged.

• S.C adopted a doctrine of prospective over ruling under which three 

constitutional amendment continued to be valid.

• Held that parliament had no power to amend provision of part III.

• S.C also interpreted that amending power under Art. 368 is same as  legislative power
under Art 248, entry 97 of 7th schedule (Union list). It is  therefore a ‘law’ for the purpose
of Art. 13 (2).
 Kesavananda Bharti case (13
• th
JB)
24 , 25 and 29 amendment challenged.
th th

• Amendments held valid.

• Over- ruled IC Golaknath v. State of Punjab (11 JB)

• Held that though parliament had wide powers to amend, such powers were curtailed by
maintaining the basic spirit of constitution.

• The parliament could not snatch certain basic principles enshrined in the constitution.
• No absolute power – S.C gave a new concept of Basic structure doctrine. Parliament
could
take away or amend F.R as long as it did not violate THE BASIC STRUCTURE.
 Brief
Facts:
• In 1970 Swami HH Sri Kesavananda Bharati, Senior head of a Hindu Mutt  situated
in Edneer, a village in District of Kerala, challenged the Kerala  government's attempts,
under two state land reform acts, to impose  restrictions on the management of its
property.

• Swami filled his petition under Article 26, concerning the right to manage  religiously
owned property without government interference.

• Major amendments to the Constitution (the 24th, 25th and 29th) had been  enacted by
Indira Gandhi’s government through Parliament. All these  amendments were under
challenge in Kesavananda Bharati case.
 ISSUE
S
• Validity of 24th 25th and 29th amendment of C.O.I ?
• Whether law word includes amendment ?
• Can parliament destroy and frame new constitution ?
• What exactly is basic structure doctrine ?
 Amendments

• Many amendment brought about by parliament to override the controversial  judgements

standing in the way of parliament and to uphold their power to  amend.

• 24th amendment

• 25th amendment

• 29th amendment
 What is 24th Amendment
• passed in the year 1971

• Objective- to remove hindrance and difficulties created by the decision of S.C in the year 
1967 in Golaknath Case.

• By way of amendment, parliament introduced the following provisions:

• Art 13(4)
• Amending the heading of Art 368
• Art 368 (1)
• President obligation to give assent to bill amending the constitution
• Art 368 (3)
 What is 25th Amendment

• Passed in the year 1972.

• Art 31 Clause 2 amended

• Clause (2B) inserted in Art.31 after clause (2A)

• Art. 31 C inserted by way of this amendment

 What is 29th
• Amendment
Kerala Govt. faced practical difficulties and to overcome them amended
Kerala land Reform Act, 1963 through:
1. Kerala land Reform (Amendment) Act, 1969, and  
2. Kerala land Reform (Amendment) Act, 1971

• Certain provision of the principal act, 1963 as amended were challenged in H.C of Kerala
and S.C. This posed as a threat to implementation of land  reforms in Kerala.

• 29th Amendment passed in the year 1972.

• 29th Amendment - include these amendment acts in 9th schedule to the  constitution.
• Protection under Article 31 B.
 Art. 31 B & Ninth
Schedule
• Ninth schedule and Art. 31 B complement each other.
• Art 31 B came into effect by way of 1st amendment act, 1951

• Art 31 B talks about protection given to all acts and regulations mentioned in  9th schedule
nor any of the provision thereof shall be declared void, or ever  have to become void on
grounds that such act and regulation takes away or  violate the F.R

• All acts in ninth schedule are provided immunity from judicial review,  overriding
judgements, decree and order to the contrary, if any.
 What is Basic Structure
•
Doctrine?
Indian judicial principle

• The basic features of the Constitution have not been explicitly defined by the Judiciary.
• Supremacy of the constitution
• Republican and democratic form of government
• Secular character of the constitution
• Federal character of the constitution
• Separation of power
• Unity and Sovereignty of India
• Individual freedom
• The doctrine thus forms the basis of a limited power of the Supreme Court to review
and strike down constitutional amendments enacted by the Parliament which conflict with
or seek to alter this "basic structure" of the Constitution.
• Basic structure doctrine is referred as the basic spirit of constitution. It could find its roots
in the preamble.
• Preamble is a 85 words summary of constitution. It is the basic essence of constitution.
The objective of constitution lies in the preamble.
• Balance between F.R and DPSP
• Judicial Review also part of basic structure.
• Article 14 and 21 is also part of basic structure.
 Indria Nehru Gandhi v. Raj Narian
(AIR 1975 SC 2299)
• 39th amendment was challenged (Art 329 A clause 4)

• The amendment was made to the jurisdiction of all courts including S.C over  disputes
related to elections involving the prime minister of India.

• Held that it is beyond the amending power of the parliament as it destroyed  the basic
structure of the constitution.

• Judicial review part of basic structure – upheld the doctrine given in  Kesavananda
Bharti case.
Basic Structure By J. YV Chandrachud in Indra
Nehru Gandhi Case
• Sovereign democratic republic states

• Equality of status and opportunity of an individuals

• Secularism and freedom of conscience and religion

• Rule of law
 Minerva Mills v. UOI
(AIR 1980 SC
• Validity of 42nd 1789)
amendment was challenged.

• S.C struck down clauses 4 & 5 of Art. 368

• It was ruled by the court that a limited amending power itself is a basic
feature of constitution of India.

• Art.31 C - 42nd amendment declared unconstitutional – which extended the  25th

amendment – that is it replaced Art 39 b and c by all DPSP.

• Procedure describe by Art. 368 (2) is mandatory.

 Conclusion

• Dictatorship v. Democracy.

• Restriction placed on power to amend, otherwise absolute power would lead  to dictatorship.
Essential to uphold democratic values. Nothing can take away  the power of judicial review by
courts.
• Parliament taking advantage of 9th schedule. Placing all laws that violate the  basic structure
doctrine.

• The landmark judgement of Supreme Court in I.R.Coelho which was  delivered on

January 11 2007 it is now well settled principle that any law  placed under Ninth Schedule
after April 23 1973 are subject to scrutiny of  Court's if they violated fundamental rights
and thus put the check on the  misuse of the provision of the Ninth Schedule by the
legislative.
 Future Impact

• The judgment refuse to consider right to property as a fundamental right under doctrine
of basic structure, later being deleted by 44th amendment.
• Recognition of supremacy of constitution.
• Judicial review can't be stopped by any provision.
• After this verdit, Indira Gandhi elevated A.N.Ray to CJI. During Emergency, a bench
was set up to review kesavananda bharti case (bench dissolved).