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Kesavananda Bharati v. State of Kerala

Supreme Court of India · 24 April 1973 · 13 judges

By seven judges to six, the Court held that Parliament's amending power under Article 368 does not include power to alter its basic structure; it upheld the 24th and 29th Amendments but struck down part of Article 31C.

Facts

The petitioner filed a writ petition under Article 32 in March 1970 claiming that the Kerala Land Reforms Act, 1963, as amended in 1969, violated his rights under Articles 25, 26, 14, 19(1)(f) and 31. While it was pending, the Kerala Land Reforms (Amendment) Act, 1971 was passed, and Parliament enacted the Constitution (Twenty-fourth), (Twenty-fifth) and (Twenty-ninth) Amendment Acts. The Twenty-ninth Amendment placed the Kerala Acts of 1969 and 1971 in the Ninth Schedule. The petitioner was allowed to amend his petition to challenge these constitutional amendments. The Constitution Bench referred the case to a larger bench to decide the validity of the amendments, and similar orders were made in five other writ petitions raising the same questions.

Questions before the Court

  1. Whether Golak Nath was right that a constitutional amendment is 'law' under Article 13(2), so that Parliament cannot take away or abridge fundamental rights by amendment.
  2. Whether the power to amend the Constitution under Article 368, before and after the Twenty-fourth Amendment, is unlimited or subject to limits such as the basic structure of the Constitution.
  3. Whether Section 2 (substituted Article 31(2) and Article 31(2B)) and Section 3 (Article 31C) of the Twenty-fifth Amendment are valid.
  4. Whether the Twenty-ninth Amendment, placing two Kerala land reform Acts in the Ninth Schedule, is valid.

What the Court held

  • Ten judges (Hegde, Mukherjea, Ray, Jaganmohan Reddy, Palekar, Khanna, Mathew, Beg, Dwivedi and Chandrachud JJ.) held that 'law' in Article 13(2) does not include an amendment of the Constitution made under Article 368, rejecting the contrary view of the Golak Nath majority.
  • Seven judges held that the amending power under Article 368, though wide and reaching every Article, does not extend to destroying or altering the basic structure, basic elements or identity of the Constitution. Khanna J. held that, subject to this, the power is plenary and covers fundamental rights, and that property rights are not basic structure.
  • All the opinions upheld the Twenty-fourth Amendment, several reading it as only making explicit the power that already existed in Article 368. Section 2 of the Twenty-fifth Amendment (Article 31(2) using 'amount', and Article 31(2B)) was also upheld; courts can no longer question the adequacy of the amount.
  • Seven judges held invalid the clause of Article 31C barring courts from questioning a declaration that a law gives effect to the policy in Article 39(b) and (c). Sikri C.J., Shelat, Grover, Hegde and Mukherjea JJ. held the whole of Article 31C invalid.
  • Khanna J. severed only the declaration clause and upheld the first part of Article 31C, which the six judges who upheld Article 31C in full also upheld. Jaganmohan Reddy J. upheld Article 31C after severing the declaration clause and the words 'inconsistent with or takes away or' and 'Article 14'.
  • The Twenty-ninth Amendment was upheld in all the opinions except that of Sikri C.J. Several judges added that whether the Acts so placed in the Ninth Schedule damage basic features would be examined when their validity is challenged. The cases were remitted to the Constitution Bench, which was also to decide the validity of the Twenty-sixth Amendment.

Why it matters

The case was heard by thirteen judges, larger than any previous bench, to reconsider the Golak Nath decision of eleven judges. A majority rejected Golak Nath's reading of Article 13(2), so fundamental rights can be amended under Article 368, but seven judges held that the amending power cannot be used to destroy the basic structure or identity of the Constitution. Khanna J. applied that limit in the same case to strike down the clause of Article 31C excluding judicial review, a clause that seven judges held invalid.

In the Court's words

Copied from the official judgment; each passage links to its page.

“The power of amendment under Article 368 does not include power to abrogate the Constitution nor does it include the power to alter the basic structure or framework of the Constitution. Subject to the retention of the basic structure or framework of the Constitution, the power of amendment is plenary and includes within itself the power to amend the various articles of the Constitution, including those relating to fundamental rights as well as those which may be said to relate to essential features.”
H.R. Khanna, J.Page 373 of the judgment
“I am, therefore, of the opinion that the majority view in the Golak Nath's case that Parliament did not have the power to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights cannot be accepted to be correct. Fundamental rights contained in Part III of our Constitution can, in my opinion, be abridged or taken away in compliance with the procedure prescribed by Article 368, as long the basic structure of the Constitution remains unaffected.”
H.R. Khanna, J.Page 360 of the judgment
“The expression "amendment of this Constitution" does not enable Parliament to abrogate or take away, fundamental rights or to completely change the fundamental features of the Constitution so as to destroy its identity. Within these limits Parliament can amend every article.”
S.M. Sikri, C.J.Page 70 of the judgment
“The exclusion by Legislature, including a State Legislature, of even that limited judicial review strikes at the basic structure of the Constitution. The second part of Article 31C goes beyond the permissible limit of what constitutes amendment under Article 368.”
H.R. Khanna, J.Page 374 of the judgment

Provisions interpreted

Related judgments

Case and bench

Parties
Kesavananda Bharati Sripadagalvaru v. State of Kerala
Case
Writ Petition (civil) 135 of 1970
Decided
24 April 1973
Bench
S.M. Sikri, J.M. Shelat, K.S. Hegde, A.N. Grover, A.N. Ray, P. Jaganmohan Reddy, D.G. Palekar, H.R. Khanna, K.K. Mathew, M.H. Beg, S.N. Dwivedi, A.K. Mukherjea, Y.V. Chandrachud
Opinions
Eleven opinions: Sikri C.J.; Shelat and Grover JJ. jointly; Hegde and Mukherjea JJ. jointly; and Ray, Jaganmohan Reddy, Palekar, Khanna, Mathew, Beg, Dwivedi and Chandrachud JJ. separately. On the limits of the amending power the split was 7:6: Sikri C.J., Shelat, Grover, Hegde, Mukherjea, Jaganmohan Reddy and Khanna JJ. held that Article 368 does not reach the basic structure or features, while Ray, Palekar, Mathew, Beg, Dwivedi and Chandrachud JJ. found no such limit.

Questions on this case

29 questions in live Law Maker papers mention this case. A few from free papers:

  1. Question 1 · Constitutional Law Practice Set 3 — Rights, Cases & Structure

    In Golaknath v. State of Punjab (1967), the Supreme Court held that:

    1. A. Parliament has unlimited amending power
    2. B. Parliament cannot amend Fundamental Rights
    3. C. The basic structure doctrine applies
    4. D. President's Rule is subject to judicial review
    Show the answer

    B. Parliament cannot amend Fundamental Rights

    In I.C. Golaknath v. State of Punjab (1967), an eleven-Judge Bench held that Parliament could not amend Part III so as to take away or abridge Fundamental Rights. The basic structure doctrine came later in Kesavananda Bharati (1973).

  2. Question 2 · Constitutional Law Practice Set 3 — Rights, Cases & Structure

    In I.R. Coelho v. State of Tamil Nadu (2007), the Supreme Court held that laws placed in the Ninth Schedule after which date are open to challenge on the ground that they damage the basic structure?

    1. A. 26 January 1950
    2. B. 25 June 1975
    3. C. 24 April 1973
    4. D. 1 January 1993
    Show the answer

    C. 24 April 1973

    In I.R. Coelho v. State of Tamil Nadu (2007), a nine-Judge Bench held that laws added to the Ninth Schedule after 24 April 1973, the date of the Kesavananda Bharati judgment, can be tested against the basic structure, including the essence of Fundamental Rights.

  3. Question 3 · Constitutional Law Practice Set 1

    The doctrine of Basic Structure was propounded in which case?

    1. A. Kesavananda Bharati v. State of Kerala
    2. B. Golaknath v. State of Punjab
    3. C. Minerva Mills v. Union of India
    4. D. Maneka Gandhi v. Union of India
    Show the answer

    A. Kesavananda Bharati v. State of Kerala

    Kesavananda Bharati v. State of Kerala (1973), decided by a thirteen-Judge Bench, held that Parliament's power under Article 368 does not extend to altering the basic structure of the Constitution.