Kesavananda Bharti

KESAVANANDA BHARTI: THE SAVIOUR OF CONSTITUTION
Introduction
Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr. (Writ Petition
(Civil) 135 of 1970), is the one of the most important judgements of Supreme Court of India
which defined the course of history. ‘Doctrine of basic structure’ was pronounced by the Indian
judiciary on 24th April 1973 to put a limitation on amending powers of the parliament, so that the
‘basic structure of the basic law of the land’ cannot be amended. In exercise of its constituent
power under the constitution.
Background
The genesis of the dispute main to Kesavananda Bharati lies withinside the interpretation of
Article 368 of the Indian Constitution, which permits Parliament to amend the Constitution.
While the Article itself is unambiguous, the scope and quantity of Parliamentary strength to
regulate the Constitution become a incredibly contested issue, ensuing withinside the Golak Nath
judgment in which the Supreme Court held that Parliament, in exercising its strength to amend
the Constitution, did now no longer have the power to amend the essential rights beneath Part III
of the Indian Constitution. As quickly because the Golak Nath judgment become pronounced, it
become subjected to vehement criminal and political criticism. Many taken into consideration it
a political choice which interfered with the strength of Parliament to amend the Constitution.
The Supreme Court approved absolute power to Parliament in amending the Constitution, as was
seen in the judgement in Shankari Prasad case (1951) and Sajjan Singh case (1965). In both
the cases the court had ruled that the term “law” in Article 13 must be taken to mean 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. This means Parliament
had the power to amend any part of the Constitution including Fundamental rights.
But 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."
The landmark verdict was delivered by a thin majority of 7:6 wherein the majority held
that any provision of the Indian Constitution can be amended by the Parliament in order to
fulfil its socio-economic duties that were guaranteed to the citizens as given in the Preamble,
provided that such amendment did not change the Constitution’s basic structure.
KESAVANANDA BHARTI CASE FACTS

His Holiness Sripad Galvaru Kesavananda Bharati, the lead petitioner in this case, was the
leader of the Edneer Mutt, a religious sect in Kerala’s Kasaragod district. Kesavananda Bharti
had some land in the sect that he owned in his name.
The Kerala State government enacted the Land Reforms Amendment Act in 1969, which
empowered the government the right to acquire some of the land owned by Edneer Mutt, of
which Keshav Nand Bharti was the leader.
On March 21, 1970, Kesavananda Bharti filed a writ petition in the Supreme Court under
Article 32 of the Indian Constitution to enforce his rights guaranteed by Article 25 which
confers the right to practice and propagate religion), Article 26 which guarantees the right to
administer religious affairs, Article 14 provides right to equality, Article 19(1)(f) provides
freedom to acquire property, and Article 31 which provides for Compulsory Acquisition of
Property.
While the petition was still being heard by the court, the Kerala government passed another act,
i.e., the Kerala Land Reforms Amendment Act 1971.
ISSUES
Whether the 24th Constitutional Amendment Act 1971 is constitutionally valid?
Whether the 25th Constitutional Amendment Act 1972 is constitutionally valid?
What is the extent to which the Parliament can exercise its power to amend the Constitution?
CONTENTION OF PARTIES
Kesavananda Bharati’s Contentions (Petitioner) –
The petitioner argued in Keshwanand Bharti vs State of Kerala that because Parliament has
limited power to amend the Constitution, it cannot do so in an arbitrary and unrestricted way.
The petitioner referred to the statement given by Justice Mudholkar in the case of Sajjan Singh v
State of Rajasthan (1964) wherein it was said that the Parliament cannot exercise its power to amend
the constitution by modifying its basic structure.
The petitioner sought protection and rights of his property under Article 19(1)(f) of the Indian
Constitution. It was contended by the petitioner that the 24th and 25th Constitutional Amendments
violated the fundamental right guaranteed by Article 19(1)(f) of the Indian Constitution.
State of Kerala’s Contentions (Respondent) –
The State of Kerala contended that the parliament’s power to amend the Constitution is absolute and
unlimited, and unfettered. This argument was based on a fundamental principle of the Indian legal
system, namely the supremacy of Parliament.
Re Berubari Union Case 1960 was also on this point.

Furthermore, the state argued that in order to fulfil the socio-economic obligations guaranteed to
people by the union in the Preamble; it is essential that the Parliament’s authority be unrestricted.
RATIO DECIDENDI
• (The majority view in Kesavananda Bharati Case) Chief Justice SM Sikri and
Justice, JM Shelat, Justice KS Hegde, Justice AN Grover, Justice Jaganmohan Reddy,
Justice Hans Raj Khanna, Justice BK Mukherjea: The power to amend does not include
the power to change the basic structure of the Constitution to the point of altering its
identity. This proposition will be used to determine the legitimacy of a constitutional
amendment.
• (The majority view) Justice YV Chandrachud, Justice AN Ray, Justice DG Palekar,
Justice KK Mathew, Justice MH Beg, Justice SN Dwivedi: the power of amendment
under Article 368 is plenary, with no implicit or inherent limits, and includes the ability
to introduce, change, or repeal various articles of the Constitution, except those relating
to fundamental rights.
• Although agreeing with this viewpoint, Justice Khanna had noted that the power does not
apply to changing the basic structure or framework of the Constitution.
• Justice Ray and Justice Mathew agreed with the view of plenary rights, but they believe that
there cannot be a complete repeal of the Constitution, resulting in a constitutional void.
According to them, any reform should leave a government mechanism in place for the
development, interpretation, and enforcement of laws.
DECISION OF COURT
The thirteen-judge bench of the Supreme Court in Keshwanand Bharti Case 1973 via way of means
of a majority of 7:6 held that the Parliament has the authority to amend any clause of the charter so
long as the modification does now no longer violate the Basic Structure of the Constitution.Despite
writing distinct opinions, the minority bench did now no longer concede that there are positive
provisions which can be essential. They had been additionally hesitant to supply Parliament whole
and unfettered authority to amend the Constitution.The apex courtroom docket upheld the complete
twenty fourth Constitutional Amendment Act 1971 however taken into consideration the primary a
part of the twenty fifth Constitutional Amendment Act 1972 to be intra vires and the second one
element to be extremely vires.The courtroom docket, the usage of social engineering and balancing
the pastimes of each litigants, decided that neither the Parliament nor the Supreme Court has the
authority to corrode the Basic Structure of the Constitution, nor can it withdraw the mandate to create
a welfare country and a honest society. The Basic Structure Doctrine become for that reason
formulated withinside the Kesavananda case which implied that, even though the Parliament has the
authority to amend the complete Constitution, they ought to achieve this in a manner that doesn't
contradict the capabilities so essential to the Constitution that it'd be spiritless without them.
CONCLUSION:
Esteemed jurist and illustrious advocate Nani Palkhivala and the seven judges on the majority
bench in Keshavantha Bharathi Case believed, in making this decision, have urged our
esteemed ancestors to bravely defend themselves. They believed they had defended the
democracy of India, which had fought for it.The most important result of the freedom struggle
was democracy, giving power and rights to the most oppressed ordinary citizens. If the World
Bank had decided otherwise, the rights and authority that respected freedom fighters have
fought so valiantly would have been eroded.Thus, this important judgment affirmed
constitutional values, strengthened the foundations of the Constitution and restored public
confidence in justice and democracy.Kesavanand Bharti's decision sets the most powerful and
authoritative precedent in Indian constitutional history. The Basic Structure Doctrine is used to
determine the constitutional validity of amendments or acts of parliament.

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KESAVANANDA BHARTI: THE SAVIOUR OF CONSTITUTION

KESAVANANDA BHARTI CASE FACTS

State of Kerala’s Contentions (Respondent) –

Re Berubari Union Case 1960 was also on this point.

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