Kesvananda Bharti v. State of Kerala[i]is a landmark judgementof Indian legal history that placed limited restrictions to the legislature’s amending powers. It used a balanced approach to the conflict between Article 368 and 13 and introduced the concept of basic structure doctrine. It’s also popularly known as the “Fundamental Rights Case”.[ii]
The case provided a meaningful solution and a different approach to the problems raised in the previous cases of Sajjan Singh v. State of Rajasthan, as well as Shankari Prasad v. UOI, and also Golaknath v. State of Punjab.
The Kesvananda Bharti case was one of the longest-running cases the judicial history of India, and the Supreme Court of India established its largest-ever bench, consisting of 13 judges, and delivered its judgment with a majority of 7:6.
Upon entering a law school, the importance of the Kesvananda Bharti Case is signified to almost every law student, and why not after all it was the longest-running case in Indian History whose proceedings continued for a span of 68 days. Over 100 cases were cited and a meticulous examination of the constitution of 70+ countries was done. The judgement of this case is 703 pages long which itself demonstrates the magnitude of its importance. [iii]It acts as a remarkable precedent in the Indian legal system and continues to influence subsequent cases in this regard.
In 1950 when the constitution was made it was made according to the social, political and economic needs of that time. Therefore, adjustments could be made to it in accordance with the requirements of time, giving the parliament the power to propose new laws and also to amend the Indian Constitution to suit the current needs. The constitution itself says that with changing time whenever there will be a need to add new rights, the constitution can be amended.
But 2 major questions arose in this regard.
- What is the limit of Parliament’s amending powers?
- Can the fundamental rights enshrined in Part 3 of the Constitution be changed?
The main question in the case was whether the legislature’s the power to amend the Constitution was unlimited, or whether there were certain features that could not be changed. The dispute revolved around Articles 13 and 368. A clash of opinion arose between the legislature and the judiciary. It led to several amendments, including the 24th and 42nd amendment.
A series of cases followed that challenged the constitutional amendment authority of the parliament. They played a crucial role in defining India’s constitutional framework and ensuring the balance of power between the 3 pillars of democracy: the executive, the legislative and the judiciary.
The principle adopted in this case has been used to overturn several amendments in the constitutional that have been deemed to infringe the basic structure of the constitution.
The current year marks the 50th anniversary of this significant ruling, we will take this opportunity to consider and contemplate on its deep importance and influence.
In this retrospective analysis, the paper will examine the impact of the judgment given in Kesvananda Bharti v. State of Kerala on India’s Constitutional Law and the evolution of the basic structure doctrine and its application in subsequent cases.
It will also examine the historical, political and legal context in which the case arose, the contentions presented by the parties, and the reasoning of the Supreme Court in its judgment.
Amendment, Constitution, Fundamental Rights (FR), Basic Structure, Parliament, Supreme Court (SC), Article, Judgement, Constitutional Amendment Act (CAA)
Both descriptive and analytical approach has been followed in writing this research paper. The material used in this paper has been compiled from a variety of primary and secondary sources of information. Academic articles, News-Journals,Case-comments, and legal databases like SCC and Manupatra were used to gather information along with other digital resources.
After independence, all the states started working to better the social and political conditions of their respective areas. After the constitution came into function and the people were provided fundamental rights under it, they came to know that equality was their right.
At that time, resources and production were somewhat limited. When the population grew, it soon became apparent that the concentration of wealth was restricted to only one part of society. And in order to change this all the states started changing their existing laws and system.The Kerala Government also in order to improve the economic, social and political situations of its state brought the Kerala Land Reforms Act, 1963 into function. This act had put restrictions to how much land one could hold. Basically, it curtailed property rights of its citizens.
While implementing this act, the Kerala Government acquired the land of the Edneer Mutt of the Kasaragod district of Kerala. As a consequence of the government’s acquisition, Mutt’s fundssoon got exhausted and they started facing problems in conducting their usual business. Thus, this land acquisition was challenged by the head of the Edneer Mutt that is Shri Kesvananda Bharti in the court of law. And his case was represented in the SC by none other than the prestigious Nanabhoy Palkiwala.[iv]
These land reform acts-imposed restrictions on the citizen’s right to property. Thus, in March 1970, Kesvananda Bharti filed a writ petition in SC challenging these land reform acts and said that these land reform acts violated his fundamental rights such as Article 14, Article 19 (1) (f), Article 25 and Article 26 respectively. He further said that the right to have and handle his own land is a fundamental right of the people and that his rights should be secured.
At that time there were several similar cases being heard by the SC, including the famous Golaknath vs. State of Punjab case, where the two most important parties of India were power struggling. One was the parliament and the other was the SC.
On one hand, the parliament argued that under Article 368, the parliament derives its power to amend the constitution, including FRs and they have unlimited power to do the same.
But the SC was not satisfied with this argument since Article 13(2)states that the Parliament cannot make any law that reduces the power of fundamental rights.
These two articles caused a difference of opinion.
During the drafting of the Constitution, the Founding Fathers spent 38 days debating the Third Part of the Constitution. Part 3 aims to protect our rights and freedoms from arbitrary governmental interference. States’ actions should therefore be judged by their impact on people’s rights and freedoms. This whole concept is Article 13 and acts as a protection of fundamental rights.
Article 13(2) deals with post-constitutional law and prohibits the state from enacting laws that violate fundamental rights. If such inconsistent laws are enacted, they will be considered null and void.
Our constitution is a living document, its dynamic in nature and it shall adapt itself to the changes in society. Article 368 [v]holds the power to amend the Constitution. It is vested in Part XX of the Constitution. Article 368 is a cornerstone of our democracy. A symbol of our nation’s autonomy, a way to evolve. It holds the key to amend and revise the provisions and to bring about the change.A bill must be passed in both the houses with a two-third majority and must be ratified with the assent of at least half of the state legislatures in India.
It’s a tool in the legislature’s hand that should be used with care for the constitution is the backbone of our nation and changes to it should be made with utmost caution.
Now, when you clash article 13 with article 368, some very imp. questions come before us.
- Can the preamble be amended pursuant to Section 368?
- Can fundamental rights be changed under Section 368?
- Is the power of amendment exercised by parliament under Section 368 absolute?
The whole question here is a tussle for power, who has more authority?
The Judiciary or the Parliament?
A series of events followed since the independence which led to this tussle. These events have been discussed in form of case laws given below.
Shankari Prasad v. Union of India
When India got its independence there was a wide inequality in land ownership. Farmers and cultivators had no security. Abolition of zamindari system was a revolutionary policy of independent India and INC had set up a committee called Agrarian Reform Committee chaired by J.C Kumarappa. This land reform policy had two objectives, first, to increase agricultural production, second, to provide equal status and opportunity to rural people population. To fulfill these objectives a fixed ceiling limit was fixed on these land holdings. But this policy was curtailing the right to property of people and to protect it,in 1951, the 1st constitutional amendment act was passed which inserted Article 31A, Article 31B,and 9th schedule in the constitution.
Soon people started looking at 31A and 31B as an attack on their right to property under Article 31(at that time we had 7 fundamental rights including the right to property in Article 31) and challenged the 1st amendment act in the court of law through Shankari Prasad v. Union of India[vi].So, the question arose whether the right to property can be curbed and whether parliamentarians can amend the fundamental rights.
The judgment followed in this caseheld 1st CAA to be valid and said that the parliament under Article 368 had all the power to amend even the fundamental rights under the constitution and Article 13(2) which is a protector of fundamental rights, the word law in it only means law in the ordinary sense and it can be only applied to ordinary laws and not to the CAAsince they are no ordinary laws, thus, under CAA fundamental rights can be amended and Article 13 won’t apply to it.
Sajjan Singh v. State of Rajasthan
The 17th amendment act added the land acquisition laws to the 9th schedule of the constitution, so as to stop these laws to be challenged in a court of law.
But the 17th amendment act and the 9thSchedule were challenged in the case of Sajjan Singh v. State of Rajasthan[vii]. A 5-judge bench was constituted in this case and the judgment was given in a ratio of 3:2.
In this case, they took a view of the judgment in the previous case of Shankari Prasad v. Union of India and said that the meaning of the word amendment in the constitution meant amendment of any part of the constitution including fundamental rights, under Art. 368 the parliament has enough power to amend the fundamental rights and Article 13 will not be applicable to the 17Th constitutional amendment act.
In this case, Chief Justice Gajendragadkar who gave the majority decision said that if the framers of the constitution wanted to protect the FRs from amendment then they would have written an express provision for the same and since there is no such provision given in the constitution then we can assume that the FRs can be amended.
But Justice Hidaytullah and Justice Mudholkar didn’t agree to this and thus referred the case to a larger bench of 11 judges which became another historical case of India known as Golaknath vs State of Punjab.
Golaknath v. State of Punjab
An 11-judge bench was constituted in this case challenging the 17th amendment act once again. In this case, everything was reversed, the SC said that the power to amend the constitution including the fundamental rights is not an absolute power, it is subject to some restrictions and limitations of judicial review.
This case is important because until now we had a settled position that Article 368 had unlimited power to amend but this case reversed this position. The SC even went ahead to say that, the parliament does not have any power to amend or abridge fundamental rights in the way of amendments.
Further, the ambit of Article 13(2) was discussed, it was said that the word law used under Article 13(2) includes Constitutional amendments, and if any amendment violated fundamental rights, it would be void.
Thus, in Golaknath v. State of Punjab,[viii]the SC annulled the judgment given in Shankari Prasad and Sajjan Singh.
Kesvananda Bharti v. State of Kerala
Here comes the most celebrated case of the Indian judiciary.
The parliamentarians could not digest what happened in the Golaknath case and to reverse the judgment they came up with the 24th amendment act.
The 24th amendment act went to amend the root cause of the problem which is Art. 13 and Art. 368. First, they included clause 4 to Article 13 which said that nothing in Article 13 would apply to Article 368, which basically meant that anything can be amended under Article 368 and it would not attract the attention of judicial review under Article 13.
Secondly, they changed the marginal heading of Article 368 from “Procedure of amending the constitution” to “Power of Parliament to amend the constitution and the procedure therefore” and lastly, added clause 3 to Article 368 which said that nothing in Article 13 shall apply to Article 368. So, the crux of the 24th amendment was to exclude the applicability of Article 13 onto Article 368. Therefore, everything held in the Golaknath Case was annulled through this amendment. It was made clear that the parliament can dilute the constitution including the fundamental rights.
The 24th amendment was challenged in the case of Kesvananda Bharti v. State of Kerala[ix]and the question arose what is the ‘scope of amendment’ that the parliament reserves. SC’s largest bench until now, i.e.a bench of 13 judges sat in the case of Kesvananda Bharti vs State of Kerala, which is popularly also known as the Fundamental Rights case. This time the SC gave a very balanced judgment, they said that the power to amend the constitution was already implicit in the constitution, and the 24thAmendment act merely made it explicit or declaratory. However, they said that the basic features cannot be amended.
So, the crux of SC’s judgment was that you can amend the entire constitution to form a new constitution but it should survive through its basic features which means that there are certain implied restrictions for amending the constitution and the basic features cannot be amended.
Earlier judgments whether of Shankari Prasad, Sajjan Singh or Golaknath either sided with Article 13 or Article 368 but the judgment given in Kesvananda Bharti is different and important because it took a different approach creating a balance between the two acts and introduced the doctrine of basic structure.
Justice Sikri in his judgment said that a list of things would qualify for the basic structure, and this list is not exhaustive and it would be decided through future cases, and in the future,if a question arises whether a particular feature is part of the basic structure or not then one should focus on the intention of the framers of the constitution to decide whether that particular feature qualifies for basic structure or not.
Since the Kesvananda Bharti case many other significant judgements have been given by the Indian Judiciary holding that there are certain fundamental features that cannot be amended and form the basic structure of the constitution.
There have been some notable cases such as that of Indira Gandhi vs. Raj Narain [x]where the SC upheld the fundamental right of free and fair election and declared the election of then prime minister Indira Gandhi as void and Minerva Mills Ltd. v. Union of India [xi]where the doctrine of basic structure was further clarified and it was held that constitution’s basic structure cannot be destroyed even if its to give effect to Directive Principles of State Policy (DPSP).
This incident was the culmination of a series of incidents that involved challenges for the constitutional amendments made by the Parliament in the 1960s and 1970s, which were seen as an attempt to curtail the power of the judiciary and consolidate the power of the ruling party.
There has been a continuous power struggle between the judiciary and parliament. One is responsible for interpreting laws and ensuring that they are applied fairly and impartially.Another on the other hand is responsible for making and amending laws.Both the branches of law are responsible for maintaining the rule of law in the country but there can be a difference of opinion between them when their interests and interpretation of the law may collide.
One such major collision of thoughts was witnessed in this case of Kesvananda Bharti which helped shape our country’s constitutional framework. Over the past 50 years, the case has been used as a reference point in various other cases. It ensures that the constitution is not at the mercy of the political majority and that the basic rights of the people are protected.
It also affirms the importance of judicial review and an independent judiciary to keep a check on the parliament’s power and ensure that it does not exceed its constitutional limits and does not amend the constitution so that it fundamentally alters its character.
It has been 50 years to this judgment but its significance remains even today. The constitution has now been amended 60 times, and in at least 16 cases the Supreme Court has signified the constitutional amendments against core tenets. [xii]
Thus indicating, the basic structure doctrine is the soul of the constitution and any attempt to tamper with it would be in violation of people’s aspirations.
As it marked its 50th Anniversary on 24th April 2023, SC dedicated a webpage to this judgment containing all the relevant documents to this case for the world researchers to look upon.[xiii]
This case proved to be a Magna Carta of the Indian Constitution and is a reminder that constitutional democracy thrives on rule of law, checks and balances, and protection of fundamental rights and sets a precedent for future cases emphasizing the need for a careful judicial review of constitutional amendments.
Author: Anushka Singh
Symbiosis Law School, Noida
[i] Kesvananda Bharti v. State of Kerala, AIR 1973 SC 1461
[iii] Aishwarya Sandeep, Basic Structure of Indian Constitution, Oct. 16, 2021 Basic Structure of Indian Constitution – Aishwarya Sandeep
[iv] Aditi Pande, Kesavananda Bharati v. State of Kerala, The Next Advisor (September 4, 2021), https://www.thenextadvisor.com/kesavananda-bharati-vs-state-of-kerala/
[v] INDIA CONST. art. 368
[vi] Shankari Prasad v. Union of India, AIR 1951 SC 458
[vii] Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845
[viii] Golaknath v. State of Punjab, 1967 AIR 1643, 1967 SCR (2) 762
[ix] Kesvananda Bharti v. State of Kerala, AIR 1973 SC 1461.
[x]Indira Gandhi v. Raj Narain, 1975 AIR 865, 1975 SCR (3) 333
[xi]Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789
[xii]Kanu Sarda, 50 Years On, How Courts Have Interpreted the Landmark Kesvananda Bharati Judgement, India Today (Apr. 24, 2023)50 years on, how courts have interpreted the landmark Kesavananda Bharati judgment – India Today
[xiii] Express News Service, 50 years of Kesavananda Bharathi judgment: Supreme Court dedicates web page containing details of case verdict, Express News Service (ENS), April 25, 202350 years of Kesavanada Bharathi judgment: Supreme Court dedicates web page containing details of case verdict | India News,The Indian Express
The link to the webpage is provided herein below.