Kesavananda Bharati v. State of Kerala
 is a landmark decision that changed
the constitutional history of India for two major reasons. Firstly, when the Golak Nath case incapacitated the Indian Parliament to amend Part III of the
Constitution, this case instilled them with the power to do so. It however,
limited the scope of the legislative authority by introducing the Basic
Secondly, it rejected the provision on judicial review that
was included in the Twenty Fifth Amendment of the Constitution of India in 1971.
Alternatively called the Fundamental Rights Case, Kesavananda Bharati proved to
be the savior of Indian democracy. This comment aims at analyzing the infamous
conflict between the legislature and judiciary and the role of the case in
attaining constitutional harmony. It also argues against the codification of the
Basic Structure Doctrine and contends why the Supreme Court was right in leaving
the doctrine open to judicial interpretation.
India has repeatedly witnessed clashes between its supreme democratic
institutions, the early 1970’s face-off between the Judiciary and the
Legislature was one of the most famous and important, as it resulted in the
landmark judgement of Keshwanand Bharti v. State of Kerela
The supreme court in Keshwanand Bharti Vs. State of Kerela, took near to 5
months to arrive to a judgment, which was extremely helpful in determining the
powers of all the three branches of the government. The popularity of this
judgment also rose because it was almost 800 pages long and contained about 450k
The importance of this judgment can be understood with the fact that one
of its main function was of preserving the dignity and integrity of the
constitution, the creativity of this judgment is so paramount that the basic
structure Doctrine given by this judgment had set the benchmark for courts all
around the world, in the matters of the constitution. In order to understand and analyse Keshwanand Bharti Vs. State of Kerela, we need to briefly understand the
flurry of cases that came before it.
Conservative Approach of the Supreme Court in Shankari Prasad and Sajjan Singh
Right to property, which was a fundamental right, gave rise to a lot of
questions in the Indian Constitution. Agrarian land reform laws were introduced
soon after the Constitution was enacted in Uttar Pradesh, Madhya Pradesh, and
After the laws came into force, the Zamindars who were deprived of huge parts of
their land filed petitions in various high courts claiming that their
fundamental rights were violated. The Constituent Assembly (operating as the
Interim Parliament) passed the Constitution (First Amendment) Act, 1951, after
the Bihar Land Reforms Act, 1950 was upheld by the Patna High Court in 1951. Two
clauses were incorporated by this amendment which protected land reform laws
from judicial review. One of those clauses introduced 9th Schedule to Article
31B. Under the 9th Schedule, no laws can be questioned for being inconsistent
with fundamental rights.
In the case of Sankari Prasad v. Union of India, the amendment was challenged
by the Zamindars. One of the many reasons was that not only ordinary laws but
also amendments were included in the term 'rule' under Article 13(2), which
prevents the Parliament from creating any laws that take away fundamental
rights. If the courts agreed to this, it would have meant that the Parliament
can never amend Part III of the Constitution. However, this was dismissed by the
Supreme Court's five-judge bench, arguing that this makes a distinction among
the ordinary laws and the constitutional laws. It was thus held that the courts
cannot review the constitutional amendments.
The validity of the 1964 Act (17 Amendment), which includes 44 statutes in the
9th Schedule, was questioned in the case of Sajjan Singh v. Rajasthan
Contrary to the case of Shankari Prasad, this case did not challenge the rights
of Parliament to amend the fundamental rights. Rather, this case brought into
question, the inability of the Parliament to obey the process of amending the
This petition was also rejected by the judges, as in the event of Shankari Prasad. But while three judges decided that there will be no amendment
to the fundamental rights, J. Janardan Raghunath Mudholkar and J. Mohammad
Hidayatullah questioned whether Shankari Prasad' s views were true that a
constitutional amendment was not 'law' pursuant to Article13(2) of the
Constitution and that the court therefore cannot review it. Also, in the
reference to the intention of the Constitutional Assembly to make the basic
structure of the Constitution permanent, Justice Mudholkar also referred to the
basic doctrine of structure in Kesavananda, saying that whether the basic
structure can simply be regarded as re-drafting the parts of the constitution or
as an amendment.
Golak Nath v. State of Punjab
Golak Nath v. State of Punjab
 raised the issue on whether the parliament has
right to amend the fundamental rights of citizens. Under state land reform
laws, the landlords stripped of their surplus landholdings questioned the
constitutionality of the First, Fourth, and Seventeenth Amendments.
now was whether the Legislature had rights to ament or infringe the fundamental
rights and if these same amendments were open for examination by the courts, an
eleven-judge bench was set up by the Supreme Court to see into this matter. The
Supreme Court ruled, by a slim majority of 6:5, that the difference between the
power of the constituent and the power of a legislative that was set out in the
case of Shankari Prasad had been baseless.
They made clear to the Parliament
that even if the resolution for the amendment had been passed with a mass
majority, it would not be sufficient if they violated the fundamental rights
given to the citizens of this country. Fundamental rights are of paramount
importance and amendments fell under the purview of ‘law’ under Article 32 of
The court recognized that it would lead to disorder, uncertainty, and severe
disparities to extend this judgment around the nation to earlier constitutional
amendments, even though the court believed that fundamental rights are
inviolable. It then agreed to use the American 'prospective overruling'
principle, on the basis of which it could extend its verdict to unconstitutional
amendments. Therefore the plaintiffs in Golak Nath obtained no relief, however
the phrases of the Kesavananda case,' gave the court some assurance that their
predecessors would make good into codifying the "basic structure
The Supreme court based their entire arguments based on political philosophy,
for the first time in the case of Golaknath. The Golaknath judgment rarely
received total acceptance from the legal point of view, some of the countries
major legal experts were against the supreme court’s judgment. Academic studies
and public sentiment were also moved against the contention of the Supreme
After passing the Twenty-fourth Amendment Act, 1971 and adding Article 13(4) to
specifically exempt constitutional amendments from the scope of Article 13, the
Parliament tried to address the issue of whether constitutional amendments
constitute as 'law' under Article 13. By this amendment, the parliament made
sure that the constitutional amendments are out of the court’s jurisdiction to
review even if they violate the fundamental rights of citizens(article 13(4))
and discredited the Supreme court's judgment of Golaknath.
Kesavananda Bharati: Analysis
The Kerala Land Reforms Act, 1963 had begun to affect the property of several
religious institutions in India including the one of the religious math headed
by Swami Kesavananda Bharati. This led to him challenging the land reforms
of Kerala in 1970. Whilst the proceedings were still running in the court, the
Twenty ninth Amendment Act, 1972 was passed by the Parliament.
This Act went on
to include some of the land reforms into the Ninth Schedule, further increasing
the challenges faced by religious institutions. Henceforth, the constitutional
validity of the amendment along with that of twenty fourth and twenty fifth
amendments was challenged by Kesavananda Bharati and his counsel Nani Palkhivala.
The twenty fourth amendment passed in 1971 in order to quash the Golaknath case,
stated that constitutional amendments were not considered ‘law’ under the scope
of Article 13. This amendment gave unlimited power to the Parliament to amend or
repeal any part of the Constitution of India. The twenty fifth amendment was
passed in 1971 itself.
It had granted Articles 39(b) and (c) of Directive
Principles of State Policy, primacy over Fundamental rights including the rights
to equality, freedom and property. It also hindered the court’s power to
judicial review. The twenty ninth amendment brought in 1972, inserted two land
reform provisions into the Ninth Schedule.
The case filed by Kesavananda Bharati made the Supreme Court re-evaluate its
judgments given in the previous cases of Shankari Prasad, Sajjan Singh and Golak
Nath respectively. The main issue in front of the court was determining the
scope of Parliament’s amending power under Article 368. It had to decide if the
power of the Parliament was unfettered or if the court could uphold its power of
Petitioners in the case claimed that the three amendments
violated those prime principles of the Constitution that were the pillars of
Indian democracy. They contended that the legislature was not authorized to
modify those provisions by drawing power from the Constitution itself. The
legislature, on the contrary, argued that Article 368 granted them an unlimited
power to amend. The onus of examining the power of the Parliament and thereby
determining the constitutional validity of the disputed amendments now lied upon
the Supreme Court.
After putting forward the opinions of the majority, the court concluded that all
the amendments stood valid except for the judicial review clause in the twenty
fifth amendment. The Golak Nath judgment was overruled and the scope of Article
368 was explained. The Supreme Court of India then introduced the Basic
Structure Doctrine that was decided with a majority of 7:6 judges.
As per the
doctrine, the Parliament had the power to amend any part of the Constitution
including Part III, but it was not in the capacity of using this power to amend
the basic structure of the Constitution. The Supreme Court made use of a
teleological approach to protect the identity and framework of the Constitution.
It was thereby decided that any future amendments after the case would have to
abide by the basic structure doctrine. The power to judge the constitutionality
of those amendments and determining the elements of the basic structure was left
to the court itself.
Each judge in the panel gave their opinion on what must be included in the basic
structure. Apart from the fact the opinion was not exhaustive, each judge had
their own say. Justice Sikri, the Chief Justice of India mentioned the following
- Supremacy of the Constitution
- Secular character of the Constitution
- Republican and democratic form of government
- Separation of powers among the legislature, judiciary and executive
- Federal character of the Constitution
In addition to the above list, the other judges including Justice Shelat,
Justice Grover, Justice Hegde, Justice Mukherjea and Justice Reddy included the
- Securing the dignity of an individual granted by the Fundamental rights
and the duty to construct a welfare state as stated by the Directive
Principles of State Policy
- Maintaining the unity and integrity of the nation
- Sovereignty of the nation
- Securing individual freedom
- Building an egalitarian society
- Parliamentary Democracy
Although the court was not unanimous in bringing forward a fixed basic
structure, it made evident its intent, which is, protecting the spirit of Indian
Although the decision of Supreme Court in the Golak Nath case was the first
major sign of supremacy of judiciary, it was Kesavananda Bharati that strongly
founded that, when it came to constitutional matters, the Supreme Court was
unprecedented in authority.
The Supreme Court made a strategic withdrawal in Kesavananda Bharati over fundamental rights amendments, but it greatly extended
the scope of its judicial review by claiming the authority to evaluate all
constitutional amendments, and not only those that concerned fundamental rights.
The Supreme Court now had a co-extensive authority to review and refute any
amendment that violated the fundamental structure of the Constitution as a
limitation to the Parliament's unrestricted right to amend the Constitution. To
a certain degree, the judges who recognized the theory of basic structure in Kesavananda Bharati wanted a win scenario for the Parliament as well as the
Supreme Court to achieve.
The difference between drafting and functioning of the Constitution was
recognized in Kesavananda Bharati. The case analysed if it was possible to
practically restructure the Constitution on the pretense of allowing amendments
to the Constitution by representatives whose amending power was unrestrained.
This is important for matters where the standpoint of the legislature was anti-majoritarian
and where the decisions of the people's representatives did not reflect the will
of the people.
The Supreme Court analysed if the government could reframe the
Constitution in a manner that contradicts the primary features and principles of
the nation under the veil of amendments. These primary features include
democracy and independence of judiciary, the scope of which was already
curtailed by the Parliament in its previous amendments. The Supreme Court, by
restricting this power of the legislature, made sure that the elected
representatives of the people continue to serve the people and not rule them
While deciding Kesavananda Bharati, the Supreme Court ensured that the
constituent power of the legislature was co extensive with the citizens. It
prevented the future chances of totalitarian governance, sharp socialist
directions, military coups or any other form of dictatorial rule by ‘extra
constitutional means’. In both Kesavananda Bharati and Golak Nath, the judges
had taken pre empted for achieving certain predetermined results. In order to
prevent the Parliament from subverting the Indian democracy, they used legal
means to make the ends meet.
Justice Hegde and Justice Mukherjea stated that no single generation could bind
the course for the future generations. However, in Kesavananda Bharati, that is
exactly what the Supreme Court had done. It declared that a few parts of the
constitution bound the succeeding parliaments till eternity.
Nevertheless, the determining power as to what constitutes as ‘basic’ lies with
the apex court, the interpretation of which is liquid, owing to its perpetuity
and indissolubility. The apex court has been granted the ‘custody of the
Constitution’ by asserting its supremacy in the sphere of interpreting the
The judgment has been criticized by many academics for introducing the basic
structure doctrine when there was no mention of it in the Constitution. Many
have argued that since the doctrine has been used as a tool for statutory
interpretation, it should have been codified for further reference. However,
codifying the doctrine would not have left it open to interpretation for
unforeseen and unprecedented times, thereby hampering the sole purpose of the
The codification of the doctrine could result in the legislature substituting or
altering it which in turn, could lead to destroying the purpose of its
existence. The Parliament, to ensure its supremacy, might curtail the scope of
the doctrine and increase its amending power. The doctrine would then act as a
mere constitutional veil under which the legislature could practice its
The concept of codification of the basic structure would not give the desired
result in India due to its Parliamentary structure. If codified, the doctrine
might be amended by the party attaining majority in both the houses in any
manner under light of Article 368. Codification could even result in the
doctrine getting abolished thereby turning the constitutional power of the
legislature into Constituent power.
The court’s power to judicial review might
be repealed. Since there would be no end to the Parliament’s power on altering
or abolishing the doctrine, the judiciary could be made powerless and the
Constitution could be open to exploitation. The idea of a democratic India
does not favor political ideologies deciding its Constitutional structure.
Even if the doctrine was codified and made unalterable by the Legislature, it
would result in a coercive decision been made for the successive parliaments.
The future generations would then be bound to abide by the provisions created in
the past without leaving scope for alteration as per future needs.
One can never
predict what the future might bring. An amendment may be required in the
fundamental principles in any unforeseen situation. Laws might need to be
constructed and deconstructed for perusal of justice. Therefore, a feature such
as the basic structure of the Constitution cannot be fully predetermined. It
must be left open to the liberal interpretation of the courts as per the need of
The judgment has been criticized for being too lengthy and lacking uniformity
due to the contradictory opinions of the judges. It must be noted that the bench
who decided the case constituted of thirteen judges with different opinions and
yet managed to obtain a seven judge majority. This case comment has analyzed the
procedural history of the case and the cases that led to the filing of the suit.
The cases of Sankari Prasad, Sajjan Singh and Golak Nath are briefly addressed
and their role in reaching the end is established. The comment also points out
how the court was correct in not defining or codifying the basic structure
doctrine Kesavananda Bharati. It also states how the case rightly upheld the
court’s power to judicial review after the release of the Twenty Fifth Amendment
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