discussion on Keshavananda Bharthi

1. Kesavananda Bharthi
Sripagadalvaru and Ors
VS
The State Of Kerala and Anr.
A Case Analysis by Students

2. History: Events Before The Case (In Brief)
• The historic case of Kesavananda bharti vs union of India is the culmination of a long series of confluct between the judiciary and the government headed by Indira Gandhi during which both
the institutions came face to face in various cases such as :
1. I C Golaknath Vs The State of Punjab (1967)
2. R C Cooper Vs Union of India (1969)
3. Madhav Rao Scindia Vs Union of India (1970)
• I C Golaknath Vs The State Of Punjab (1967):
In this case the supreme court took an extreme view that, the parliament cannot amend or alter or abolish any fundamental rights. Thus, the judgement in this case restricted parliament
power to amend the constitution and the process of amendment very rigid.
• R C Cooper Vs Union of India (1969):
This case discuss’s the bank nationalization brought by prime minister Indira Gandhi. The prime minister nationalized 14 major banks and the paltry compensation was made payable in bonds
that would matured after 10 years.
This injustice in payment of compensation was struck down by the supreme court although it upheld the the parliament’s right to nationalize banks and industries.
• Madhav Rao Scindia Vs Union of India (1970):
Prime minister Gandhi abolished the privy purses granted to the erstwhile rulers of the princely states in India. This was the betrayal of the solemn promise given by Sadar Patel to all the
erstwhile rulers. This decision of government was challenged in this case by Madhav Rao Scindia, erstwhile ruler of Gwalior. The supreme court ruled in the favour of the Petitioner
Prime minister Indira Gandhi was determined to cut the supreme court and the high courts to size and she introduced a series of amendments which were Amendment Acts 24th
25th
and
26th
which almost nullified all the above mentioned judgements. In short, these amendments gave parliament unfettered powers to amend or even abolish any of the fundamental rights.
These drastic amendments were challenged by kesavananda bharti and several coal and sugar companies. On the other side not only the Union of India was involved but almost all the
states were involved.

3. Facts Of The Case:
• Sri Kesavananda bharthi was head of the Eedneer Mutt in kasargod district of kerala. The mutt had
some land acquired under its name. In 1963, the kerala government passed land reforms acts which
was later again amendmed through Kerala Land Reforms (Amendment) Act ,1969 and 1971.
• Through these reforms, the government had acquired the land of the mutt to meet its socio
economic policies
• Thus, sri kesavananda bharthi on 21/03/1970 moved to Supreme Court Under art 32 to enforce his
rights under
1. Article 25
2. Article 26
3. Article 14
4. Article 19(1)(f)
5. Article 31

4. Issue Identified In Case:
While examining the case the questions that come forward are as follows :
1. The scope and ambit of the articles 368 in conferring the power to amend the
constitution to Parliament.
2. Constitutional validity of 24th
Amendment Act.
3. Constitutional validity of 25th
Amendment Act.
4. Constitutional validity of 29th
Amendment Act.

5. Impunged Amendment Acts
24th
Amendment Act:
• (2) In Article 13 of the Constitution, after Clause (3), the following clause shall be inserted, namely:
• (4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368.
• (3) Article 368 of the Constitution shall be re-numbered as Clause (2) thereof, and-
• (a) for the marginal heading to that article, the following marginal heading shall be substituted, namely:
• Power of Parliament to amend the Constitution and procedure therefor.;
• (b) before Clause (2) as so re-numbered, the following clause shall be inserted, namely:
• (1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of
addition, variation or repeal any provision of this Constitution in accordance with toe procedure laid down in this article;
• (c) in Clause (2) as so re-numbered, for the words "it shall be presented to the President for his ascent and upon such
assent being given to the Bill", the words "it shall be presented to the President who shall give his attest to the Bill and
thereupon" shall be substituted;
• (d) after Clause (2) as so re-numbered, the following shall be inserted, namely:
• (3) Nothing in Article 13 shall apply to any amendment made under this article.

6. 25th
Amendment Act:
• Section 2 of the Constitution (Twenty-fifth Amendment) Act, 1971 enacted as follows:
• (a) for Clause (2), the following clause shall be substituted, namely: (2) No property shall be compulsorily acquired or
requisitioned save for a public purpose and save by authority of a law which provides for acquisition or requisitioning of
the property for an amount which may be fixed by such law or which may be determined in accordance with such
principles and given in such manner as may be specified in such law; and no such law shall be called in question in any
court on the ground that the amount so fixed or determined is not adequate or that the whole or any part of such amount is
to be given otherwise than in cash
• Section 3 of the twenty-fifth amendment, reads thus:
• 3. After Article 31B of the Constitution, the following article shall be inserted, namely:
• 31. C. Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing
the principles specified in Clause (b) or Clause (c) of Article 39 shall be deemed to be void on the ground that it is
inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31; and no law
containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground
that it does not give effect to such policy:
• Provided that where such law is made by the legislature of a State, the provisions of this article shall not apply thereto
unless such law, having been reserved for the consideration of the President, has received his assent.

7. 29th Amendment Act:
• Amendment of Ninth Schedule In the Ninth Schedule to the
Constitution after entry 64 and before the Explanation, the following
entries shall be inserted, namely:
• 65. The Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35
of 1969).
• 66. The Kerala Land Reforms (Ame

8. Prayers Of The Parties Involved:
1. Petitioner :
• The main prayer of the petitioner through his counsel was that the power of
the parliament to amend the constitution is very restricted and not
unlimited. The petitioner also contented before the honourable court to
protect his fundamental rights under articles 25, article 26, and also his right
to property under article 19(1)(f) from the 24th
and 25th
Amendment Acts.
They also pleaded that the constitution gave its citizens certain “freedoms”
which were to subsists forever and the constitution gave the people
protection from any future tryanny of the rulers. It is this very protection
from tryanny that the impunged acts have taken away. The petitioner’s
argument was on the basis of the Basic Structure theory propounded by
justice Madholkar in the Sajjan Singh case where he said “the fundamental
rights cannot become the playthings of the majority”.

9. 2. Respondents :
• The main contention of the state(Respondent) was that the amending
power of the parliament was wide and unfettered. They claim that
the state can take away the fundamental rights such as freedom of
speech and expression, freedom to form union and associations and
freedom to Of religion. The respondent goes on to say that the state
can even reapeal the parliamentary form of government and replace
it with any other form such as one party system. The counsel for the
state goes on to say that if the agreements of the Petitioners is
accepted then the socio economic development of all promised by
the constitution and preamble would be in direct conflict with the
fundamental rights

10. Judgement:
• The landmark judgement in keasavananda bharthi sripagadalvaru and ors VS the state of kerala and anr was delivered
by a bench of 13 judges (largest in the history of Indian judiciary) . The judgement was given by a thin 7:6 majority.
• The majority bench consisted of justices : CJI S M Sikri, J M Shelat and A N Grover, K S Hegde and B K Mukherjee, P
Jaganmohan Reddy and H R Khanna.
• The minority bench consisted of justices: M H Beg, A N Ray, S N Diwedi, D G Palekar, K K Mathews and Y V
Chandrachud.
• The court while declaripng the historic judgement upheld the validity of 24th
Amendment Act and said that each and
every provision of the constitution is open to amendment subject to non violation of basic structure
• While declaring the judgement of 25th
Amendment Act held that Sec (2) is valid and said while the courts cannot
decide the adequacy of the amount, it is open for the courts to decide whether the principle or the norm used in
determining the amount is reasonable or not . However the Sec(3) which inserted article 31c into constitution was
struck down on the ground that it enables parliament to delegate it’s its power to amend the constitution to state
legislature which is beyond the scope conferred by article 368.
• The court also upheld the validity of 29th
Amendment Act on the grounds that it is a reasonable abridgment of F.R.
• The also answered the question left unanswered in Golaknath judgement i.e meaning of the word “Amendment”
whose answer was deduced to the establishment of BASIC STRUCTURE DOCTRINE

11. Critical Analysis of the Judgement:
• The court using the social engineering and keeping in mind the interests of all the litigants held that while the parliament does not
have the authority to take way the basic structure of the constitution, it cannot be denied the power to build a welfare and egalitarian
society
• The judgement contrary to what was held in Golaknath’s case held that there is a difference between an ordinary law and an
amendment act. While an ordinary law is made in exercise of it’s legislative power, an amendment act is made in exercise of its
constituent power.
• The court held that “Power of Amendment” conferred by article 368 was wide but not ununlimited.
• The court held that under article 368 each and any provision of the constitution is open for amendment as long as these amendments
to constitution doesn’t violate or interfere with the basic structure of the constitution. In declaring so the court did not grant
unfettered and unlimited powers to the parliament.
• This also meant the even the fundamental rights can be amended as long as it doesn’t violate basic structure ( meaning unreasonably
abridged or abrogated). The respected CJI S M Sikri said “the expression "amendment of this Constitution" in Article 368 means any
addition or change in any of the provisions of the Constitution within the broad contours of the Preamble and the Constitution to carry
out the objectives in the Preamble and the Directive Principles. Applied to fundamental rights, it would mean that, while fundamental
rights cannot be abrogated reasonable abridgements of fundamental rights can be effected in the public interest.”
• While delivering the judgement the court also answered the question left unanswered in the Golaknath case i.e what is the extent or the
scope of the word amendment. The court held that the expression “Amendment of this Constitution” has implied restrictions and
parliament can pass a constitutionally valid amendment or acts as long as it doesn’t take way the spirit of the constitution given to it by
the framers.
• The answer was finally deduced to the establishment of the BASIC STRUCTURE DOCTRINE and outlined few features which
constitutes as basic structure (a) Supremacy of Constitution (b) Secular Character of the Constitution ( c) Republic and Democratic
Form of Government (d) Separation of Powers Between All the Branches of the Government (e) Federal Charter of the Constitution (f)
rule of law and so on. The also held that the list is not exhaustive and left it for the future courts to decide and interpret as to what
constitutes as basic structure

12. • The bench upheld the validity of the 24th
Amendment Act saying that the changes brought by 24th
amendment in article 13(2) and
article 368 are valid and does not enlarge parliament’s powers it. Any amendment which infringes or abrogated the fundamental
rights would be void. They further hold that the 24th
amendment provides clarity over the language of article 368
• The court held that sec(2) of the 25th
amendment act is valid while sec(3) was void. In doing so the court noted the while the
“amount” may not be equal to compensation, the amount should not be arbitrary or unreasonable and there must be some relationship
between the the principle used in determining the amount and the amount itself. The court further said that while courts will not
interfere in deciding the adequacy of the amount for the property acquired, it can rule on , if a person approaches the court alleging
that he or she is being denied their right to receive amount for his acquired property on the ground that principle used in determining
the amount doesn’t have any relationship with the amount . Justice khanna opined that no law can prevent a citizen from approaching
the courts.
• Sec(3) which inserted article 31c was struck down as it enabled the parliament to delegate its power to amend the constitution to state
legislature which is beyond the power conferred by article 368 which says that an amendment can be made only by introducing such
Amending bill on the floor of the parliament
• By upholding the sec(2) of the 25th
Amendment Act, the court gave the parliament the needed power to bring socio economic
developments as guranteed by the constitution ( DPSP) and preamble. And at the same time by striking down sec(3) the court
protected the constitution and the citizens from parliamentary totalitarianism and ensured that constitutional right to remedy prevails
• The 29th Amendment Act was also held as valid however the also said that it will be still open for courts to decide whether the acts
included in 9th
schedule abrogated or take away any of the fundamental rights or abridges them and in later case whether those
abridgment are reasonable or not

13. Basic Structure Doctrine:
• The Basic Structure Doctrine was first mentioned in Sajjan Singh Deo Vs Union of India by J. Mudholkar, eight years prior to
Kesavananda bharti case by referring to a 19633 judgement of Supreme Court of Pakistan in which the Chief Justice of
Pakistan held that, president cannot alter fundamental rights of the constitution of Pakistan.
• Later, it was J. H R Khanna who established the Basic Structure Doctrine in the kesavananda Bharti judgement and said that
each and every provision of the constitution is open to amendment subject to the Basic structure test.
• Hence the true position of the Basic Structure Doctrine is that every provision of the constitution can be amended
provided that the Basic Structure of the constitution remains the same.
• J. Hegde and J. Mukherjee in their joint judgement explained the significance of Basic Structure Doctrine as “Our
constitution is not a mere political document. It is essential document. ..like every religion has 2 main features namely
basic and circumstantial. The former remains the same but the practices with it may change. Likewise a constitution like
ours contains certain features which are so essential that they cannot be changed or destroyed.”
• Therefore, to preserve the ideas and philosophy of the original constitution the supreme court laid down the Basic
Structure Doctrine according to which parliament cannot destroy the basic spirit of the constitution.
• The minority judgement in keasavananda Bharthi case held that, all the parts of the constitution are essential and that
there cannot be any distinction between them. They said that any part of the constitution can be amended under article
368. But the majority recognized the Basic Structure Doctrine and held that parliament cannot destroy the basic structure
and spirit of constitution.

14. • The majority bench in Keasavananda bharthi case outlined the following as essential features of the constitution:
1. Supremacy of Constitution.
2. Separation of Powers between the Legislature, the Executive and the Judiciary.
3. Republican and Democratic form of Government.
4. Secular Character of the Constitution.
5. Federal Character of the Constitution.
6. The Dignity of the Individual secured by Fundamental Rights and the Mandate to build a welfare state contained in Directive Principles
of State Policy.
7. The Unity and Integrity of the Nation.
8. Parliamentary System.
The CJ Sikri mentioned that these features can be easily recognized not only from the preamble but also from the whole scheme of
constitution.
• The above mentioned list was declared as only illustrative and not, by any means, exhaustive. Whether a feature of constitution is basic or
not open for the courts to decide in future from time to time and when questions arise
• Since kesavananda bharti case, the Basic Structure Doctrine have evolved by various judgements which recognized several features of
constitution as basic features of constitution such as:
1. In Kihoto Hollohon, SC declared DEMOCRACY as essential features of constitution.
2. In Indira Gandhi vs Raj Narain, RULE OF LAW, FREE AND FAIR ELECTIONS were recognized as basic features of constitution
3. In S R Bommai case, FEDERALISM and SECULARISM were recognized as basic features of constitution

16. Short Term Impact
• The judgement is widely recognized as an improvement over the Golaknath judgement. The Golaknath judgement
protected only fundamental rights from the parliament but this judgement expanded that protection and included
all the elements essential for the spirit of constitution.
• This judgement removed the rigid process of amendment imposed by the Golaknath judgement and made the
process a little flexible for the parliament to evolve the constitution with time.
• The judgement further established the supremacy of the constitution and said that all the institutions must
function with in the framework as they derive their power and authority from constitution.
• This judgement also put a cap of restrictions on parliament and made it near impossible to violate fundamental
rights.
• This judgement cemented the position of Indian judiciary during the time when government was constantly
undermining its rulings and truly established its authority to check any violations of constitution.
• Through this judgement the court established the Basic Structure Doctrine and also enabled the parliament to
bring in changes needed for socio economic development and at the same time ensured that the basic structure of
the constitution is not violated.
• At large, this judgement saved the fabric of indian democracy and saved the nation from parliamentary
totalitarianism.

17. Long Term Impact
• Onhis case had many political overtones and the judgement had far reaching consequences. This
judgement became a light of hope during the dark days of emergency
• After the declaration of emergency in 1975, an attempt was made to review the judgement of this case
and reassert parliament’s right to amend the constitution. A bench of 13 judges with 8 new judges
headed by the then CJI A N Ray was appointed to review the case. 2 days later it was realised that there
was no physical petition filed by anyone to review the judgements and the bench was immediately
dissolved. This attempt to overrule the judgement is widely called as “the review that never was.”
• As an effect of this judgement, the 39th
amendment which attempted to nullify the decision of
Allahabad High Court which set aside the election of prime minister Indira Gandhi on grounds of
corrupt practices, was struck down.
• Later, in Minerva mills Vs Union of India, the sec (4) and (55) of 42nd
amendment which removed the
restrictions of parliament and curtailed such amendments from judicial review were declared void.
• In both the cases the Basic Structure Doctrine was reinforced and evolved.
• On various occasions this judgement saved the indian democracy from the tryanny of the ruling
government this protected the rights of the citizens guaranteed by the constitution.

18. Conclusion:
• In brief, The Kesavananda Bharti case judgment is a
watershed moment in the Indian polity. Though Bharti lost
his case, the judgment proved to be a savior of democracy
and saved it from falling into pieces. As an effect of the case
and its judgments, in various other cases like Indira Gandhi
v. Raj Narain and Minerva Mills v. Union of India, the
supremacy of the Constitution and limits on the amending
powers of the Parliament were upheld.