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Kesavanada Bharti v/s State Of Kerela-1973

The most important judgment in the history of judicial verdicts was delivered on April 24, 1973 by Chief Justice Sikri and 12 judges' bench of Supreme Court. This case is significant for its ruling that the Constitution can be amended but not the basic structure of the constitution. The case of Kesavanada Bharti vs. State of Kerala was heard for 68 days, the arguments commenced on October 31, 1972 and ended on March 23, 1973. The case involved intensive research , comparative analysis and scholarly inputs which led to the major reforms in the legislations.

Key Points:
  1. In this case the petitioner Kesavanada Bharti challenged the Kerala Government Land Reforms Legislations in 1970, which imposed restrictions and tried to control the religiously owned properties under the state land reforms act.
  2. This case was challenged under Article 26, which gives power to an Indian citizen/trust to manage a religious property without government interference.
  3. The judgment was given by a 13 Judge Bench set up by the Supreme Court of India which is also the biggest bench so far to hear a case.

Background And Timeline:
  1. Shankari Prasad Case (1951) And Sajjan Singh (1965)

    In the above cases the Supreme Court conceded absolute power to Parliament in amending the Constitution.

    Under these cases the court gave the verdict that the term law in Article 13 means rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power under Article 368.

    According to these verdicts the Parliament had the power to amend any part of the Constitution including Fundamental rights.
  2. Golaknath Others Vs. State Of Punjab(1976)

    In this judgment the Supreme Court held that Parliament could not amend Fundamental Rights, and power to amend the Constitution would be only with a Constituent Assembly.
    Also Article 13(2) reads:
    The State shall not make any law which takes away or abridges the right conferred by this Part (i.e. Part-III) and any law made in contravention of this clause shall, to the extent of contravention, be void.

    Considering this the court held that an amendment under Article 368 is "law" within the meaning of Article 13 of the Constitution and therefore, if an amendment "takes away or abridges" a Fundamental Right conferred by Part III, it is void.
  3. R.C.Cooper Case (1970) And Madhavrao Scindia Case (1970)

    The above cases alienated judgment of the Supreme Court in the Golaknath case (1967). Along with it the government amended constitution arbitrarily which gave it absolute power to bring in changes to all parts of constitution and to keep those away from judicial review and scrutiny. Most notably:
    1. 24th Constitutional (Amendment) Act, 1971- Parliament had also given itself the power to amend any part of the Constitution.
    2. 25th Constitutional (Amendment) Act, 1972- The right to property had been removed as a fundamental right.

Facts Of Cases:
  1. Swami H.H Sri.Keswananda Bharti senior head of Edneer Mutt (Kerala)
  2. Kerala government attempted to control religiously owned property under two state land reforms act.
  3. Under this case Kerala government tried to create a restriction over Article 26 of the constitution which gives power to an Indian citizen /trust to manage a religious property.
  4. Nanabhoy Palkhivala (Senior Advocate) convinced Kesvananda Bharti to file petition under Article 26.
  5. Nanabhoy Palkivala filed P.I.L which was heard in 68 days hearing (31st October,1972 to 23rd March,1973)

  1. Delivered on 24th April, 1973 by a thin majority of 7:6.
  2. The majority held that:
    • Any provision of the Indian Constitution can be amended by the Parliament in order to fulfill its socio-economic obligations that were guaranteed to the citizens as given in the Preamble, only if that such amendment did not change the Constitution's basic structure.
  3. The minority held that:
    • In their nonconformist opinion, they were wary of giving the Parliament unlimited amending power.
  4. The court held that the 24th Constitutional Amendment was entirely valid.
  5. However it found the second part of the 25th Constitutional Amendment to be ultra vires in nature.
  6. Removal of Judicial Review under Article 31 C was held unconstitutional and invalid on the ground that it is basic structure and hence cannot be taken away.
  7. Even after the ruling that the Parliament cannot violate the fundamental rights, the court upheld the amendment of removal of the fundamental right to property. Considering this amendment the court held that the amendment would not violate the basic structure� of the Constitution hence would be valid.

Doctrine Of The Basic Structure:

  1. The concept of basic structure doctrine is not present in the constitution rather it evolved gradually over the past years. This idea of Basic Structure came into being so as to preserve the nature of the Indian Democracy and to protect the rights and liberties of people.
  2. The Basic Structure Doctrine helps to protect, preserve the integrity and spirit of the Constitution of India.
  3. In India, the basic structure doctrine has formed the bedrock of judicial review of all laws passed by Parliament.
  4. The list for the basic structure is not exhaustive in nature however the court held few of the elements of constitution as basic structure which were parliamentary democracy, fundamental rights, judicial review, secularism.
  5. Judiciary is responsible to decide what constitutes the basic structure.

Implications Of Judgement:
  1. This verdict was in itself a war of judiciary against the government. As the government ignored the opinion of judiciary and superseded three judges.
  2. In 1974 after less than two years of the restoration of Parliament's amending powers to near absolute terms, the Forty-second amendment was challenged before the Supreme Court by the owners of Minerva Mills (Bangalore) a sick industrial firm which was nationalized by the government. Under this case the basic structure doctrine was upheld.
  3. Basic structure doctrine was restated in the Minerva Mills and later in the Waman Rao case, 1981.
1. 4 Scc 225; Air 1973 Sc 1461

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