The 13 judge bench of the Supreme Court delivered a landmark judgment in Kesavananda Bharati v State of Kerala in 1973. The key issue was whether Parliament's power to amend the Constitution was unlimited. The court narrowly held that while Parliament could amend most of the Constitution, it could not amend the "basic structure or essential features" of the Constitution. This established the "basic structure doctrine" and ensured continued judicial review of constitutional amendments. It prevented Parliament from abolishing all fundamental rights and played a crucial role in upholding democracy during the Emergency.

1. Professor, Lawyer & Entrepreneur
Puttu Guru Prasad
VVIT-Skill Development Center
Nambur
puttuguru.blogspot.in
93 94 96 98 98 - 807 444 95 39

3.  13 judges bench
 It Gave birth to the concept of “BASIC STRUCTURE DOCTRINE”
 It Paved the way for struggle between parliament and judiciary
 Fight for absolute power in regards to amendment power of any provision
of the constitution by virtue of Article 368.
 [Part-xx Article 368 (1) of the Constitution of India grants constituent
power to make formal amendments and empowers Parliament to amend
the Constitution by way of addition, variation or repeal of any provision
according to the procedure laid down therein, which is different from the
procedure for ordinary legislation.]

4.  Shankari Prasad v. UOI (AIR 1951 SC 458)
 Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845)
 IC Golaknath v. St. Of Punjab (AIR 1967 SC 1643)
• Many amendment brought about by parliament to
override the controversial judgements standing in the
way of parliament and to uphold their power to amend.
• 24th amendment
• 25th amendment
• 29th amendment

5.  In 1970 Swami HH Sri Kesavananda Bharati, Senior head of a Hindu Mutt
situated in Edneer, a village in District of Kerala, challenged the Kerala
government's attempts, under two state land reform acts, to impose
restrictions on the management of its property. The state government of
Kerala introduced the Land Reforms Amendment Act, 1969. According to
the act, the government was entitled to acquire some of the sect’s land of
which Keshvananda Bharti was the chief.
 Swami filled his petition under Article 26, concerning the
right to manage religiously owned property without
government interference.
 [Article 26: Freedom to manage religious affairs.]
 Major amendments to the Constitution (the 24th, 25th and
29th) had been enacted by Indira Gandhi’s government
through Parliament. All these amendments were under
challenge in Kesavananda Bharati case.

6.  Whether any limitation or restriction could be placed
on the amending power of parliament ?
 Validity of 24th 25th and 29th amendment of C.O.I ?
 Whether law word includes amendment ?
 Can parliament destroy and frame new constitution ?
 Is there any difference between ordinary legislative
power and constituent power ?
 What exactly is basic structure doctrine ?
 Whether judicial review could be done away with ?

7.  Indian judicial principle
 The basic features of the Constitution have not been explicitly defined by the
Judiciary.
 Basic feature is determined by the Court in each case that comes before it.
 The doctrine thus forms the basis of a limited power of the Supreme Court to
review and strike down constitutional amendments enacted by the Parliament
which conflict with or seek to alter this "basic structure" of the Constitution.
 Basic structure doctrine is referred as the basic spirit of constitution.
 It could find its roots in the preamble.
 Preamble is a 85 words summary of constitution.
 It is the basic essence of constitution.
 The objective of constitution lies in the preamble.
 Balance between F.R and DPSP
 Judicial Review also part of basic structure.
 Article 14 and 21 is also part of basic structure.

8.  Article 14 in The Constitution Of India 1949
 A14. Equality before law The State shall not
deny to any person equality before the law or
the equal protection of the laws within the
territory of India Prohibition of discrimination
on grounds of religion, race, caste, sex or place
of birth

9.  A21. Protection of life and personal liberty.
 A21. No person shall be deprived of his life or
personal liberty except according to procedure
established by law, nor shall any person be
denied equality before the law or the equal
protection of the laws within the territory of
India.

11.  M. Sikri
 N. Grover
 N. Ray
 G. Palekar
 R. Khanna
 M. Shelat
 K. Mathew
 S. Hegde
 H. Beg
 Jaganmohan Reddy
 N. Dwivedi
 V. Chandrachud

12.  Exactly forty eight years ago, on April 24, 1973, Chief
Justice Sikri and 12 judges of the Supreme Court
assembled to deliver the most important judgment in
its history.
 The case of Kesavananda Bharati v State of Kerala had
been heard for 68 days, the arguments commencing
on October 31, 1972, and ending on March 23, 1973.
 The hard work and scholarship that had gone into the
preparation of this case was breathtaking. Literally
hundreds of cases had been cited and the then
Attorney-General had made a comparative chart
analyzing the provisions of the Constitutions of 71
different countries!

13.  Core question
 All this effort was to answer just one
main question: was the power of
Parliament to amend the Constitution
unlimited? In other words, could
Parliament alter, amend, abrogate any
part of the Constitution even to the
extent of taking away all fundamental
rights?

14.  Article 368, on a plain reading, did not contain
any limitation on the power of Parliament to
amend any part of the Constitution. There was
nothing that prevented Parliament from taking
away a citizen’s right to freedom of speech or
his religious freedom. But the repeated
amendments made to the Constitution raised a
doubt: was there any inherent or implied
limitation on the amending power of
Parliament?

15.  The 703-page judgment revealed a sharply
divided court and, by a wafer-thin majority of
7:6, it was held that Parliament could amend
any part of the Constitution so long as it did
not alter or amend “the basic structure or
essential features of the Constitution.” This was
the inherent and implied limitation on the
amending power of Parliament. This basic
structure doctrine, as future events showed,
saved Indian democracy and Kesavananda
Bharati will always occupy a hallowed place in
our constitutional history.

17.  Supreme Court v Indira Gandhi
 It is supremely ironical that the basic structure
theory was first introduced by Justice
Mudholkar eight years earlier by referring to a
1963 decision of the Supreme Court of
Pakistan. Chief Justice Cornelius — yes,
Pakistan had a Christian Chief Justice and,
later, a Hindu justice as well — had held that
the President of Pakistan could not alter the
“fundamental features” of their Constitution.

18.  The Kesavananda Bharati case was the culmination
of a serious conflict between the judiciary and the
government, then headed by Mrs Indira Gandhi.
In 1967, the Supreme Court took an extreme view,
in the Golak Nath case, that Parliament could not
amend or alter any fundamental right. Two years
later, Indira Gandhi nationalized 14 major banks
and the paltry compensation was made payable in
bonds that matured after 10 years! This was struck
down by the Supreme Court, although it upheld
the right of Parliament to nationalize banks and
other industries.

19.  A year later, in 1970, Mrs Gandhi
abolished the Privy Purses. This was a
constitutional betrayal of the solemn
assurance given by Sardar Patel to all the
erstwhile rulers. This was also struck
down by the Supreme Court. Ironically,
the abolition of the Privy Purses was
challenged by the late Madhavrao
Scindia, who later joined the Congress
Party.

21.  Smarting under three successive adverse
rulings, which had all been argued by N.A.
Palkhivala, Indira Gandhi was determined to
cut the Supreme Court and the High Courts to
size and she introduced a series of
constitutional amendments that nullified
the Golak Nath, Bank
Nationalization and Privy Purses judgments. In
a nutshell, these amendments gave Parliament
uncontrolled power to alter or even abolish any
fundamental right.

22.  These drastic amendments were challenged by
Kesavananda Bharati, the head of a math in
Kerala, and several coal, sugar and running
companies. On the other side, was not only the
Union of India but almost all the States which
had also intervened. This case had serious
political overtones with several heated
exchanges between N.A. Palkhivala for the
petitioners and H.M. Seervai and Niren De,
who appeared for the State of Kerala and the
Union of India respectively.

24.  The infamous Emergency was declared in 1975
and, by then, eight new judges had been
appointed to the Supreme Court. A shocking
attempt was made by Chief Justice Ray to
review the Kesavananda Bharati decision by
constituting another Bench of 13 judges. In
what is regarded as the finest advocacy that
was heard in the Supreme Court, Palkhivala
made an impassioned plea for not disturbing
the earlier view.

25.  In a major embarrassment to Ray, it was
revealed that no one had filed a review
petition. How was this Bench then constituted?
The other judges strongly opposed this
impropriety and the 13-judge Bench was
dissolved after two days of arguments. The
tragic review was over but it did irreversible
damage to the reputation of Chief Justice A.N.
Ray.

27.  Constitutional rights saved
 If the majority of the Supreme Court had held
(as six judges indeed did) that Parliament
could alter any part of the Constitution, India
would most certainly have degenerated into a
totalitarian State or had one-party rule. At any
rate, the Constitution would have lost its
supremacy. Even Seervai later admitted that
the basic structure theory preserved Indian
democracy.

28.  One has to only examine the amendments that
were made during the Emergency. The 39th
Amendment prohibited any challenge to the
election of the President, Vice-President, Speaker
and Prime Minister, irrespective of the electoral
malpractice. This was a clear attempt to nullify the
adverse Allahabad High Court ruling against
Indira Gandhi. The 41st Amendment prohibited
any case, civil or criminal, being filed against the
President, Vice-President, Prime Minister or the
Governors, not only during their term of office but
forever.

29.  Thus, if a person was a governor for just one
day, he acquired immunity from any legal
proceedings for life. If Parliament were indeed
supreme, these shocking amendments would
have become part of the Constitution.
 Thanks to Kesavananda Bharati, Palkhivala
and the seven judges who were in the majority,
India continues to be the world’s largest
democracy. The souls of Nehru, Patel,
Ambedkar and all the founding fathers of our
Constitution can really rest in peace.

30.  The judgment in Kesavananda
Bharati v State of Kerala, whose
48th anniversary falls this year,
was crucial in upholding the
supremacy of the Constitution
and preventing authoritarian
rule by a single party.