Kesavananda Bharati Case (1973): Basic Structure Doctrine

Read this in Hindi: हिंदी में पढ़ें

Kesavananda Bharati v. State of Kerala, decided on 24 April 1973 by a 13-judge bench of the Supreme Court, held that Parliament can amend any part of the Constitution, including fundamental rights, but cannot alter or destroy its “basic structure”. The verdict was by a 7:6 majority, overruled Golak Nath (1967), and remains the foundation of constitutional review of amendments in India.

Background: the battle over the amending power

From the 1950s, Parliament and the Supreme Court were locked in a dispute over land reform and property rights. Parliament kept amending the Constitution to protect land reform laws, and the Court kept examining whether those amendments could cut down fundamental rights.

In Shankari Prasad (1951) and Sajjan Singh (1965), the Court held that Parliament could amend fundamental rights. Then, in I.C. Golak Nath v. State of Punjab (1967), an 11-judge bench by a 6:5 majority held that a constitutional amendment is “law” under Article 13, so Parliament could not take away or abridge fundamental rights.

Parliament responded with a series of amendments:

• 24th Amendment (1971): declared that Article 13 does not apply to amendments made under Article 368, and made clear that Parliament’s power under Article 368 extends to amending any provision.
• 25th Amendment (1971): replaced “compensation” with “amount” in Article 31(2) and inserted Article 31C, which protected laws giving effect to certain Directive Principles and barred courts from questioning a law that declared it was for that purpose.
• 29th Amendment (1972): placed two Kerala land reform laws in the Ninth Schedule.

Facts of the case

Swami Kesavananda Bharati was the head of the Edneer Mutt in Kasaragod, Kerala. The Mutt’s land was affected by Kerala’s land reform legislation. He challenged the Kerala laws, and the petition grew into a challenge to the validity of the 24th, 25th and 29th Amendments. The petitioners were led by senior advocate N.A. Palkhivala.

To reconsider Golak Nath, a bench of 13 judges was constituted, the largest in the Court’s history. Hearings ran for 68 days, from 31 October 1972 to 23 March 1973. Judgment was delivered on 24 April 1973. The case is reported as (1973) 4 SCC 225 and AIR 1973 SC 1461.

The bench and the 7:6 split

The judges wrote several separate opinions. Six judges in the majority found implied limits on the amending power. Six in the minority found none. Justice H.R. Khanna held the balance: he accepted that Parliament could amend every provision, including fundamental rights, but held that the word “amendment” does not include the power to abrogate the Constitution or change its basic structure or framework. His view therefore tipped the majority.

A short summary titled “View by the majority” was signed by nine of the thirteen judges. Its key line was that Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.

What the Court held

• Golak Nath overruled: a constitutional amendment is not “law” under Article 13. Parliament can amend any part, including Part III.
• 24th Amendment upheld.
• 25th Amendment: the change from “compensation” to “amount” was upheld, as was the first part of Article 31C. But the second part of Article 31C, which barred judicial scrutiny of a law merely because it declared that it gave effect to the Directive Principles, was struck down.
• 29th Amendment upheld.
• Basic structure limit: the amending power under Article 368 cannot be used to damage or destroy the basic structure of the Constitution.

What is “basic structure”?

The phrase does not appear anywhere in the Constitution. The Court did not give a closed list. Different judges in the majority mentioned features such as supremacy of the Constitution, republican and democratic form of government, secular character, separation of powers and federal character. Later decisions have added others, including judicial review, rule of law, free and fair elections, and the limited nature of the amending power itself.

The Court has always treated the list as open. Whether a feature is basic is decided case by case.

Aftermath and later development

Supersession of judges

Two days after the judgment, on 26 April 1973, Justice A.N. Ray, who was in the minority, was appointed Chief Justice of India. Three senior judges from the majority, Justices Shelat, Hegde and Grover, were superseded. This was widely seen as a reaction to the verdict.

Indira Nehru Gandhi v. Raj Narain (1975)

The basic structure doctrine was applied for the first time to strike down an amendment. The Court invalidated the relevant part of the 39th Amendment, which had tried to put the election of the Prime Minister beyond judicial scrutiny, on the ground that free and fair elections are part of the basic structure.

The 42nd Amendment and Minerva Mills (1980)

The 42nd Amendment (1976) inserted clauses (4) and (5) in Article 368 to bar courts from questioning amendments and to declare that there was no limitation on the amending power. In Minerva Mills v. Union of India (31 July 1980), a five-judge bench struck these clauses down. It held that limited amending power is itself a basic feature, and that a limited power cannot be converted into an unlimited one.

Waman Rao and I.R. Coelho

The date of the Kesavananda judgment became a legal cut-off. In Waman Rao (1981), the Court used 24 April 1973 as the dividing line for testing Ninth Schedule additions against the basic structure. In I.R. Coelho (2007), a nine-judge bench held that laws placed in the Ninth Schedule after that date can also be examined against the basic structure.

Exam angle

• Numbers: 13 judges, 7:6 majority, decided 24 April 1973, 68 days of hearing. Expect these as one-liners in CLAT and AIBE.
• Amendment outcomes: Judiciary prelims ask which amendments were upheld (24th, 29th) and which part of the 25th (the second part of Article 31C) was struck down.
• Chronology: Shankari Prasad, Sajjan Singh, Golak Nath, Kesavananda, Indira Gandhi, Minerva Mills, Waman Rao, I.R. Coelho. Order-based questions are common in UGC NET.
• Khanna J: Know why his opinion is decisive, and do not confuse him with his dissent in ADM Jabalpur (1976).
• Not in the text: “Basic structure” is a judicial doctrine and is not written in the Constitution.

Quick quiz

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Sources

• Supreme Court of India: Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; AIR 1973 SC 1461
• Supreme Court of India: Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789
• Constitution of India: Articles 13, 31C and 368; Constitution (Twenty-fourth, Twenty-fifth and Twenty-ninth Amendment) Acts
• LiveLaw: commentary on the 50th anniversary of the Kesavananda Bharati judgment (April 2023)