CASE ANALYSIS
DOCTRINE OF BASIC STRUCTURE- A SUBSTATIVE
LIMITATION ON AMENDING POWER OF PARLIAMENT.
KESAVANANDA BHARATI V. STATE OF KERALA
Judiciary at one time was viewed and considered to be as the weakest organ of the state, the reason
being that it did not possess the power of purse or the power of the sword. The Constitution which
commenced on 26th January, 1950 turned out to be the cornerstone for the democracy of India. So
far, the constitution of India has been subject to numerous amendments providing for wider scope
to its pre-existing clauses and harbouring more rights for its citizens.
There has often been a tussle between the legislature and the judiciary with regard to its power to
override each other. This tussle for constitutional supremacy came to the boiling point in 1970’s
and was finally settled by a razor-thin majority of 7:6 by a thirteen Bench judgement in
Kesavananda Bharati v. State of Kerala1, In the backdrop of this grapple of supremacy, the
Supreme Court delivered its one of the most significant verdicts on 24th April 1973 propounding
the “Doctrine of Basic structure” and securing a leeway to the judiciary to have a check over power
of legislature, thus, having a unique impact on the powers and freedoms of organs of the state.
In Kesavananda Bharati’s case, the Apex Court deliberated over the judgement for a long period
of almost 5 months to frame the issues which were core to the interaction between the organs of
the government. This judgement, spells over 800 pages comprising 4,20,000 words long, has been
discerned as the longest ever appellate decision.
1 AIR 1973 SC 1461.
BACKGROUND OF THE CASE
This whole matter of fundamental rights arose from the questions pertaining to the right to property
which was a fundamental right until 1978 under Article 31 of the Constitution but the same was
omitted via 44th Amendment Act, 1978 and was kept as a legal right under Article 300-A of the
Constitution. Soon after the Constitution of India came into being, the Parliament brought in
agrarian land reform legislation with the view to abolish zamindari system in India, thus, bereaving
Zamindars of their landholdings. These aggrieved zamindars went to the different high courts of
the country alleging violation of their fundamental right. The Patna High Court addressing the
grievance of zamindars, invalidated the Bihar Land Reforms Act, 1950. The then provisional
parliament i.e., Constituent Assembly enacted the very First Amendment Act, 1950 providing for
two provisions to immune land reform legislation from judicial scrutiny, for this very purpose
Article 31-B was inserted which created ninth schedule with the ulterior motive to impart safe
harbour to the legislations being put into this schedule. Basically, any law inserted via
constitutional amendments into the Ninth Schedule could not be tested on the scale of validity for
being antithetical to fundamental rights. An analysis of Kesavananda is incomplete without
mentioning the following cases:
▪ Sri Sankari Prasad Singh Deo vs. Union of India and State of Bihar2,
The Zamindars, so aggrieved, filed a petition putting a challenge to the First Amendment Act. One
of the major contentions put forward was that under Article 13(2), the expression “law”, which
proscribed the Parliament from making any laws that violate the fundamental rights, included not
only ordinary laws, but amendments are also included in it. Now, the legal conundrum hanging in
this case was whether Parliament should have the power to amend or abridge fundamental right or
not. If the Court accepts the above contention that the amendments also come within the purview
2 1951 SC 458.
of Article 13(2), it would imply that fundamental rights could never be amended by the Parliament.
The Constitutional Bench unanimously came to the conclusion that amendments to Constitution
could not be reviewed by the courts.
So, the Supreme Court upheld the validity of this First Amendment Act, 1951 and ruled that the
power of the legislature to amend any part of the Constitution under Article 368 also includes in it
the power to amend the ‘Fundamental Rights’.
▪ Sajjan Singh vs. State of Rajasthan3,
In this case, the Apex Court gave similar findings as were given in Sankari Prasad’s case. The
constitutional validity of Seventeenth Constitutional Amendment was under consideration before
the Constitutional Bench, which had inserted 44 statutes into the ninth schedule of the Constitution
in order provide immunity to those Amendment Acts from the judicial scrutiny and to afford them
validity at the same time. This amendment also bridled the powers of High Courts under Article
226 of the Constitution. This Amendment was basically curtailing the power of Judicial Review
and the same was challenged to be struck down as ultra vires. The Supreme Court applied the
“doctrine of pith & substance” and held again, that the legislature can amend any part of the
Constitution including Article 13 and, the ‘Fundamental Rights’ comes within the ambit of Article
368. The majority view upheld the correctness of Sankari Prasad’s Judgement.
▪ I. C. Golaknath & Ors. vs. State of Punjab and Anr4,
Whether the Fundamental Rights are amenable or not, was the issue in this case again. The
petitioners who were the aggrieved zamindars, were again deprived of their landholdings under
the state land reforms legislations. The challenge was made to the First, Fourth and Seventeenth
Amendment Acts. The Eleven Judge Bench was put into place to deliberate over the issue whether
an amendment can abridge or take away the FR conferred by the Constitution of India and whether
the Courts could review it judicially or not. By a razor-thin majority of 6:5, the Supreme Court
3 1965 AIR 845.
4 1967 AIR 1643.
ruled that the Constitutional Amendments certainly fall within the purview of ‘law’ under Article
13(2) and the courts have the absolute power to review them judicially if they are found to be
antithetical to the being of Fundamental Rights. Though, the Court asserted that the Fundamental
Rights are sacrosanct and inviolable but Court also admitted that applying this decision
retrospectively to the earlier amendments would cause chaos, thus, it came up with the American
doctrine of ‘prospective overruling’ and accordingly, its decision would apply only to subsequent
Constitutional Amendments. In other words, it took away the power from the Parliament to amend
the Fundamental Rights provided under Part III of the Constitution.
It held that Article 368 only provided for the procedure of the amendment and, not the power of
the Parliament, thus, overruling both the above-mentioned cases. Eventually, the Parliament
brought in twenty-fourth Amendment Act, 1971 to nullify the findings of the above case and, it
also amended Article 368, providing for unbridled power to itself for making changes to the
Constitution of India.
CORE FACTS OF KESAVANANDA BHARATI’S CASE:
In this case, the petitioner, Kesavananda Bharati Sripadagalvaru, who was the chief of ‘Edneer
Matt’- a Hindu Mutt which was situated in Edneer, a town in Kasaragod
Region of Kerala. This ‘Mutt’ had acquired under its name certain pieces of land. The Kerala Land
Reforms Act, 1963 had affected the property of his religious institution, which was further
amended, and Kerala Land Reforms (Amendment) Act, 1969 came into force. By virtue of this
Act, some lands were to be acquired by the State to fulfill its socio-economic obligations. Thus,
leading him to challenge state land reform legislation in Kerala in 1970. While the proceedings
were under way, the Parliament passed the Constitution (Twenty ninth Amendment) Act, 1972,
which inserted certain land reform laws to the Ninth Schedule and adversely affected Swami
Kesavananda.
Therefore, the Fundamental Rights contained under the following Articles- Article 14
(Right to equality before the law), Article 19 (1)(f) (Right to acquire property which was later
repealed by 44th Constitutional Amendment Act, 1978), Article 25 (Freedom of conscience and
free profession, practice, and propagation of religion), Article 26 (Freedom to manage religious
affairs), Article 31 (Compulsory acquisition of property which was later repealed by
44th Constitutional Amendment Act, 1978), were infringed. On 21st March 1970, the petitioner
Kesavananda Bharati, being persuaded by the noted jurist Nani Palkhivala, challenged the
Constitutional validity of Kerala Land Reforms (Amendment) Act, 1969 first, in Kerala High Court
and then, in Supreme Court under Article 32. Accordingly, the constitutional validity of following
Amendments to the Constitution was challenged:
▪ 24th Constitutional Amendment Act,1971: It provided that the expression “law” under
Article 13 does not include amendments and the Parliament has the power to vary or repeal
any provision of the Constitution of India.
▪ 25th Constitutional Amendment Act, 1971: It gave Articles 39 (b) and 39 (c) primacy over
the Fundamental Rights. It also took the power of the courts to decide whether a law was
actually passed to further the policy laid down in these Articles.
▪ 29th Amendment Act, 1972: It added two land reforms statutes to the Ninth Schedule of the
Constitution.
The Supreme Court had to reconsider its findings given in Shankari Prasad, Sajjan Singh and
Golak Nath. The most critical questions before the court for consideration were that how much
amending power was being conferred to the Parliament by Article 368 and, hether the courts have
the power to review such amendments or not. Thirteen judges of the Supreme Court sat en banc
for approximately five months to consider questions that stood to define constitutionalism and the
exercise of democratic power in India.
ISSUES RAISED:
Following are the major issues which were raised before the Honourable Court:
I. Whether the Twenty-fourth Amendment is ultra vires?
II. Whether the Twenty-fifth Amendment is ultra vires the Constitution as it was ousting the
Courts’ jurisdiction?
III. Whether, the Twenty-ninth Amendment is ultra vires?
IV. Whether, the findings laid down in Golak Nath’s Case are correct?
V. Whether, the Parliament has unlimited power to amend the Constitution?
VI. Whether, the Preamble forms part of the constitution?
CONTENTIONS RAISED:
The petitioners in Kesavananda contested that the challenged amendments nullify some of the most
pivotal principles of the Constitution of India and the Parliament could not draw authority from
the Constitution to tinker with those principles. The petitioners contended that the amendments are
law within the ambit of Article 13(2) and are amenable to the review jurisdiction of the Courts. It
was also argued that right to property is a fundamental right under Article 19 (1)(f) and, cannot be
abridged or taken away on the whims and fancies of the Parliament. It was contended that 24th and
25th amendments ,prima facie, Violated the right to property and therefore, the court being
‘Sentinel on the qui vive’ should protect and secure the fundamental right available to the citizens.
The challenges were also raised to the immunity being given to several amendment acts by placing
them in the Ninth Schedule and, this act alleged to be ultra vires the constitution.
On the other hand, Parliament striving for Parliamentary supremacy argued that there was
no limit to its amending power under Article 368 and the Parliament could do anything short of
repealing the Constitution itself. The government argued that Parliament has been given absolute
wide power via 24th Amendment Act to vary or repeal any of the provisions of the Constitution. It
was also contested that the amendments do not come within the expression ‘law’ as expressed by
Article 13(4) and therefore, the courts have no power to review the validity of the same. Hence, it
was relevant for the Supreme Court to examine the Parliament’s amending power to ascertain the
constitutional validity of the amendments.
JUDGEMENT: JUDGING THE VALIDITY OF
CONSTITUTIONAL AMENDMENTS:
The court issued a total of eleven divergent views on every issue, leaving out ambiguity as to
what exactly the Supreme Court actually held. In this very case, the judges for the first time had
to provide a summary of their decision, which four judges refused to sign quoting inaccuracy.
I. Whether the Twenty-fourth Amendment is ultra vires?
All the 13 judges, who heard the petition, held the view that this amendment was valid and, that
by virtue of Article 368, as it stood amended, Parliament had the power to amend any or all
provisions of the Constitution, including those relating to Fundamental Rights. The majority of the
Supreme Court held that the decision of the leading majority in Golak Nath’s case, was incorrect
and therefore, it stood overruled.
Though all the 13 judges upheld the validity of 24th Constitutional Amendment Act and held that
Parliament under Article 368 had power to amend the Constitution, they, however differed among
themselves as to the extent or scope of the power. Six of the judges held that the power of
amendment contained in Article 368 was subject to certain implied and inherent limitations and,
that in the exercise of its amending power Parliament could not amend the basic structure or the
framework of the Constitution. They further held that the fundamental rights enshrined in part III
were related to the basic structure or framework of the Constitution and, therefore, were not
amendable. While, the other six judges were of the opinion that there was no limitation on the
power of the Parliament to amend the Constitution, Khanna J. appeared to have reconciled the two
divergent views and, took a middle path and, held that Parliament had wide powers of amending
the Constitution under Article 368, it extended to all the provisions of the Constitution, including
those relating to the fundamental rights, but the amending power is not unlimited and, it did not
include the power to destroy or abrogate the basic structure or framework of the Constitution. The
majority of the Supreme Court thus, evolved the theory of Basic Structure.5
II. Whether the Twenty-fifth Amendment is ultra vires the Constitution as it was ousting the
Courts’ jurisdiction?
The Bench unanimously upheld the constitutionality validity of the 25th Amendment Act. But the
provisions with respect to making declaration, by the legislature, that the laws were for giving
effect to such policy and barring the inquiry by the court had been struck down. The Supreme
Court had, thus, kept intact, its power of judicial review on the question, as to, whether a law made
by the legislature under Article 31C, had a nexus to the Principles of the State Policy enshrined in
Article 39(b) or 39(c).6
III. Whether the Twenty-ninth Amendment is ultra vires?
The validity of 29th Amendment too, was held unanimously. However, six judges observed that
the validity of these laws so added to the 9th Schedule, could be challenged on the ground that they
or any of these provisions abrogated any of the basic elements of the Constitutional structure or
denuded them of their identity. It may, therefore, be inferred from the majority opinion, that a law
added to the Ninth Schedule, after the decision in this case, could not be protected by Article 31B,
if it destroyed or abrogated the basic structure of the Constitution.7
5 Kumar, Narendra, ‘Constitutional law of India’, Allahabad Law Agency, 10 Edition, 2018, page no. 1166.
6 Id at pg-1168. 7 Ibid.
IV. Whether the findings laid down in Golak Nath’s Case are correct?
The court upheld the validity of 24th Amendment Act and, also held that the Parliament has the
power to vary or repeal any provision of the Constitution even including the Fundamental
Rights, thus, the rulings laid down in Golak Nath’s Case stands overruled but the power of
amendment has been held to be subjected to ‘Doctrine of Basic Structure’.
V. Whether the Parliament has unlimited power to amend the Constitution?
It was held that there are no implied limitations on the Parliament’s power to amend the
Constitution under Article 368. But, any law laid down by the Parliament will be subjected to the
doctrine of basic structure of the Constitution, i.e., if any law enacted by the Parliament ruins or is
antithetical to the basic features of the Constitution, the same is liable to struck down via judicial
review of it. So, Parliament while making laws could not use its power to alter or destroy the ‘basic
structure’ or framework of the Constitution. Thereby, the Apex Court empowered itself to judge
the constitutionality of amendments and revoke the ones that compromised the essential features
of the Constitution.
VI. Whether, the Preamble forms part of the constitution?
Apart from the above discussion, another main question before the Supreme Court was whether
the Preamble forms part of Constitution or not. In defining the scope of amending power of the
Union Parliament and in order to appreciate how the Preamble to the Constitution would assist the
Court in finding out the meaning of the term “amendment” as used in Article 368, the Court traced
the history of the drafting and ultimate adoption of the Preamble. The preamble may be looked
upon to determine the ambit of Fundamental Rights and the Directive Principles. The Court in this
case solved the mystery and, held that the Preamble is the core part of the Constitution.
Furthermore, it was contested that Preamble is, though, a part of the Constitution, but is not as a
provision and therefore, it cannot be amended by the Parliament under Article 368. Rejecting the
above contention, the Court concluded that the Preamble was not outside the reach of the amending
power of Parliament under Article 368.
DOCTRINE OF BASIC STRUCTURE:
The concept of doctrine of basic structure has not been mentioned anywhere in the Constitution,
however, it has been devised by the Courts through judicial pronouncements. The concept of basic
structure was not laid down over a single day rather, it is still in the evolution process. This is one
of the rudimental judicial principles connected with the Indian Constitution. As we all know, the
Indian Constitution is a dynamic document that can be interpreted in a way so as to accommodate
the needs of the society whenever need arises. It is basically a judicially innovation to ensure that
the power of amendment is not used in a way it not ought to be i.e., to circumspect the misuse of
the power by the Parliament. It comes with the idea that Constitution possesses some basic
inalienable features which in no circumstances can be altered to deprive the Constitution of its very
essence. Indian Constitution prescribes certain principles governing the acts of the Parliament. Any
amendment intending to tinker with these principles would be taken as antithetical to the existence
of the Constitution and, would be liable to be struck down. This doctrine, thus, has been held to be
a substantive limitation on the amending power of the Parliament. The judges did not provide what
constitutes the basic structure but provided an illustrative list of what may constitute the basic
structure.
Sikri, C.J., observed that the basic structure was built on the basic foundation, i.e., the dignity and
freedom of the individual. The basic foundation of the basic structure, in his opinion, is easily
discernible from the Preamble as well as from the whole scheme of the Constitution.
According to him, the basic structure constitutes the following elements7:
• The supremacy of the Constitution
• Republican and Democratic forms of Government
• Secular character of the Constitution
• Separation of Powers between the legislature, the Executive, and the Judiciary
• Federal Character of the Constitution
Shelat and Grover, JJ., held that the basic structure was not a vague concept, they maintained
that the basic features could not be illustrative and, annot be catalogued. They added the following
to the above list:8
• The mandate to build a welfare state contained in the Directive Principles of State
Policy
• Maintenance of the unity and integrity of India
• The sovereignty of the country
• Secular and federal structure of the constitution
• Demarcation of power between the legislature, the executive and the judiciary.
Hegde and Mukherjee, JJ., had their list of the elements of the basic structure, which included:9
• The sovereignty of India
• The democratic character of the polity
• The unity of the country
• Essential features of individual freedom
• The mandate to build a welfare state
7 Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 at 1535.
8 Id at 1603
9 Id at 1628
Whereas Jaganmohan Redd, J., believed that it was the Preamble that laid down the basic features
of the Constitution, which are10:
• A sovereign democratic republic
• The provision of social, economic, and political justice
• Liberty of thought, expression, belief, faith, and worship
• Equality of status and opportunity
From the above description, it would not be easy to identify with certainty, the basic structure or
the provisions of the Constitution which the basic structure or the framework. It is therefore, for
the Supreme Court, to determine finally, as to what constituted the basic structure or what features
and the essential features constituted the framework of the Basic Constitution. It may be stated that
by laying down the concept of Basic Structure, the Supreme Court has assumed to itself the
Constituent.
AN ATTEMPT TO REVIEW KESAVANANDA BHARATI
In 1975, in the midst of the national emergency declared by the Indira Gandhi-led Congress
government, the Chief Justice of India, A.N. Ray constituted a thirteen-judge bench to review the
Supreme Court’s decision in Kesavananda. The bench was dissolved after two days of hearings
and, much of what transpired was shrouded in secrecy. The reporting of courts’ judgements by the
press was also restricted at that time. Only those lawyers and judges, who were present in the
courtroom at that time, could give accounts of what had occurred. Austin has described this
disintegration of the Bench (which was to review Kesavananda) as ‘the most critical moment’ for
the Constitution and SC since the original decision in Kesavananda. One of the principal
arguments, for the review of Kesavananda, was that the basic structure doctrine was nebulous, and
10 Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, 1753-54.
every judge had different opinions about what the doctrine encompassed. The Supreme Court
rightly, chose uncertain democracy over certain tyranny11.
CASE COMMENT- A KEY TAKE AWAY
From the very inception, it has been a fight to take hold of inordinate power rather than a fight to
secure fundamental rights to the citizens of India. The Central Parliament, always, intended to have
upper hand over the other two organs of the State. From time to time, it has enacted various laws
and amendments to oust the power of the Courts and, to devoid the Supreme Court of its power of
Judicial Review. To corner the relentless efforts of Parliament to take hold of absolute power,
SC had to come with a solution that would keep a balance of power between the Parliament and
Judiciary of the Country. The Parliament wanted to establish Parliamentary Supremacy but, the
Supreme Court devised the ‘Basic Structure Doctrine’ and, established Constitutional Supremacy.
The Supreme Court’s decision in Golak Nath was the first significant move of judicial
supremacy in constitutional interpretation, Kesavananda firmly established that the Supreme Court
was unmatched in authority when it comes to constitutional matters. In Kesavananda, the Supreme
Court vigorously claimed back the power of review and, also significantly broadened the scope of
its judicial review by assuming the power to scrutinize all constitutional amendments, not just those
pertaining to only Part III of the Constitution. If the Parliament had absolute right to amend the
Constitution, the Supreme Court had a coextensive power to review and hold ultra vires any
amendment that deprives the Constitution of its very essence. It can be said that the majority of the
judges who propounded the basic structure doctrine in Kesavananda sought to achieve a win–win
situation for the Parliament and the Supreme Court. By labeling certain parts of the Constitution
to be basic and indestructible, even from constitutional amendments, the Supreme Court held that
certain parts of the Constitution bound successive parliaments in India in perpetuity. Yet, the power
11 Zia Moody, “10 judgements that changed India”, at page 18.
to recognize the parts of the Constitution that qualify as ‘basic’ lies with the Supreme and, it
becomes the safety valve that determines when stability is shaken too much for the well-being of
the nation. This doctrine also ensures that the Apex Court has the last say on what form our
Constitution takes at a given point of time, thus, making the Constitution custodian of the
Constitution and giving an upper hand to the Supreme Court in matters concerning the
interpretation of the Constitution.
