[Citation: Kesavananda Bharati and Ors vs State of Kerala and Anr (AIR 1973 SC 1461)]
Bench: S.M. Sikri & A.N. Grover & A.N. Ray & D.G. Palekar & H.R. Khanna & J.M. Shelat & K.K. Mathew & K.S. Hegde & M.H. Beg & P. Jaganmohan Reddy & S.N. Dwivedi & Y.V. Chandrachud.
Petitioner: Kesavananda Bharati and Ors
Respondent: State of Kerala and Anr
The process of state building is a complex, messy affair that every nation must painstakingly accomplish. The Republic of India is lauded as a post-colonial success story in part due to the stable structure it has acquired and cemented over the past few decades. The Kesavananda Bharati case is the climax of the power struggle between the executive/legislative and the judiciary, and it resolved the uncertainty that was present over the powers of amendment. The conflict stems from two articles enshrined in the Constitution of India, namely Article 13 and Article 368. Article 13 protects fundamental rights, and in particular, Article 13(2) states that the state (as defined in Article 12) cannot pass laws that repeal or limit any provision of Part III of the Constitution.
This directly conflicted with Article 368, which gave Parliament the absolute right to amend the Constitution. The matter was first deliberated upon in the Shankari Prasad case and the Sajjan Singh case (where the Courts conceded absolute power to the Parliament) and then later in the Golaknath case (where the position of the Courts was reversed). The Kesavananda Bharati case acted as the final nail in the coffin on the matter, and has been the unquestioned policy for Constitutional Amendments ever since.
Kesavananda Bharati was a spiritual leader of a religious sect that mainly operated in the Kasaragod district of the State of Kerala, where he owned multiple properties.
Under the Land Reforms Amendment Act,1969 the state government of Kerala sought to acquire properties owned by Kesavananda Bharati.
Kesavananda Bharati filed a writ petition against the action, contending that the said action violated his rights guaranteed under Article 14, Article 19(1)(f), Article 25, Article 26, and Article 31.
The State Government of Kerala would amend the act through the Kerala Land Reforms (Amendment) Act, 1971. Further, the Indian Parliament would pass the 24th, 25th, and 29th Constitutional Amendments in 1971 and 1972.
The 24th Amendment was Parliament’s attempt to solidify the absolute power conferred on them under Article 368. They added a clause to Article 368 which stated that ‘Nothing in article 13 shall apply to any amendment made under this article’.
The 25th Amendment was passed to shirk the responsibility of the government to pay adequate compensation to the owners of the property they wished to acquire.
The 29th Amendment added the Kerala Land Reforms Act, 1971 to the Ninth Schedule of the Constitution, which shielded it from being challenged in court.
Article 13; Laws inconsistent with or in derogation of the fundamental rights
(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void
(3) In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas
(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368
Article 368(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 the procedure laid down in this article.
Can Parliament amend the Constitution in its entirety? Are there no restrictions on the power conferred on it by Article 368?
Petitioners: The petitioners argue that the amending power bestowed on Parliament by Article 368 is not absolute. They substantiate this by adding that the Constitution, as a document, was created to ensure the fair and just treatment and access to liberties and rights of all of its citizens in perpetuity. The petitioners argue that it is these privileges that the respondents seek to impugn.
Respondents: The respondents claim that Parliament can absolutely abrogate fundamental rights, and any other provision of the Constitution. Former Chief Justice of India S.M. Sikri in the context of the Respondent’s claims, states that, ‘Indeed, short of repeal of the Constitution, any form of government with no freedom to the citizens can be set up by Parliament by exercising its powers under Article 368.’
The case was decided by a slim 7:6 split.
The Court upheld the 24th Constitutional Amendment and recognized the right of Parliament to amend the Constitution, (including the Fundamental Rights), however it reached a compromise through the Basic Structure Doctrine.
The Parliament was given the power to amend any provision provided that they did not violate the Basic Structure of the Constitution.
The Basic Structure was not definitively outlined by the Court in this judgement, and the matter was left to later interpretations.
The Kesavananda Bharati Case was a landmark judgement that resolved a crucial argument regarding the powers of the State and the Judiciary, and the authority the State has over the Constitution. It was held that the power of Parliament to amend was the rule, but the Basic Structure was the exception. The case would first be reaffirmed by the Minerva Mills case and would continue to dictate the functions of the State to this very day.
This article is written by Shashwat Singh of Jindal Global Law School.