Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225]

This judgment is pivotal in the jurisprudential history of the country as it discusses about the balance of powers between important democratic institutions of our nation in the backdrop of constitutional supremacy. A constitutional bench consisting of 13 judges delivered this nearly   800 pages long judgment in the wake of political instability and struggle for power in the mid 1970’s.

The Hon’ble Supreme Court held that, with a slender majority of 7: 6, the basic structure of the constitution could not alter or expunge. The court is in power to scrutinize such legislations passed by the parliament which violate the basic structure of the constitution or infringe upon the golden triangle. It divides into 8 parts: Introduction, Golaknath case, interpretation of the original Art 368, validity of 24^th Constitutional Amendment, validity of Sec 2 and Sec 3 of 25^th Constitutional Amendment, validity of 29^th Constitutional Amendment and Conclusion.

The Right to Property refers to a fundamental right granted under Article 31 of the Constitution; until its transformation to a legal right in 1978. His holiness Kesavananda Bharati Sripadagalvaru, the head priest at Edneer Math in Kerala challenged the Kerala Land Reforms Act, 1963. This Act had sought to acquire land owned by the said religious sect for the fulfillment of socio-economic obligations by the State government. This case involved 6 petitions by various landowners and proprietors opposing the land ceiling laws. The leading petitioner had challenged Constitution (29th Amendment) Act, 1972 inserting the Kerala Act in Schedule IX of the constitution, thus placing it out of the purview of judicial scrutiny. He filed the petition under Art 32 for protection of rights guaranteed by Art 14, Art 19(1)(f), Art25, Art 26 and Art 31.

As it reads in the case of Golaknath v. State of Punjab¹ that the fundamental rights could not get amendment by the parliament. This is because constitutional amendments were within the ambit of definition of ‘law’ under Article 13. The American doctrine of ‘prospective overruling’ also comes to light. To regain its supremacy in constitutional matters, parliament passes the 24th Amendment in response. By the virtue of this amendment, Art 13(4) and Art 368(3) came about. That made the constitutional amendments beyond the purview of judicial review.

The 25^th amendment also follows arbitration as it thrust Article 31 C which de-linked the provisions in directive principles of state policy from the fundamental rights and immunized them from court’s intervention.

The judgments delivered in Shankari Prasad², Sajjan Singh³ and Golak Nath cases were reconsidered during this case. The central issue was whether the parliament could possess untrammeled powers to amend the constitution; without any involvement of the judiciary. The counsel for petitioner argued the limitation of power. The breach of the fundamental Right To Property leads to tyranny. Whereas, the counsel for respondent reiterated on the supremacy of the parliament and its absolute powers needed to achieve the egalitarian obligations conferred upon it by the constitution itself.

The Hon’ble Supreme Court of India held that the parliament could amend any provision of the constitution. Nevertheless, such an amendment must not violate the basic structure of the constitution. 24^th and 29^th Constitutional amendments came under consideration of validity. The 25^th Constitutional Amendment was also considered valid; except for the clause that barring the court from scrutinizing such amendments. Amendment to the constitution did not mean rewriting the constitution short of repeal. The fundamental ethos of the constitution needs protection as the constitution makers envisioned its permanence in nature. Professor Deiter Conrad, a German jurist is responsible for the genesis of the ‘basic structure doctrine’. He perhaps received motivation by the radical amendments brought in Germany during the Weimar regime.

Various interpretations of what constitutes “the basic structure” were given by different judges discretely. The list provided by them was not exhaustive. A consolidative list given by all the judges would include supremacy of the  Constitution,  republican and democratic form of government, secular character of the Constitution, separation of powers between the legislature, executive and judiciary, parliamentary democracy, individual rights required to live with dignity, welfare state, unity & integrity of the nation and the federal character of the Constitution.

Scholar Upendra Baxi had also stated in 1974 that Kesavananda case was the ‘Indian Constitution of the future’. Supreme Court struck down the Golak Nath judgment and enabled the parliament to amend the fundamental rights but only as long as it did not violate the basic structure. Therefore, even though the parliament did have unlimited powers to amend the constitution, the Supreme Court also had co-extensive powers to invalidate an amendment by declaring it as unconstitutional. The principle of judicial supremacy in constitutional matters remained enunciated. The court essentially recognized the distinction between the drafting of the constitution and working of the constitution.

Nevertheless, the judgment had faced criticized for its length and ambiguous nature as most of the judges delivered varied individual judgments on the same issues. In fact, four judges also refused to sign the summarized judgment justifying it with inaccuracy. Nonetheless, a notion of constitutionalism evolved, in a rudimentary form, through this judgment. Grundnorms, that were the prerequisites of a civil society, were secured by subjecting the amendments to touchstone of the constitution.

1 I.C. Golaknath and Ors. v. State of Punjab and Anrs, 1967 SCR (2) 762

2 Sankari Prasad Singh Deo v Union of India and Anr, 1952 SCR 89

3 Sajjan Singh v. State of Rajasthan, 1965 SCR (1) 933