| Kesavananda Bharati v. The State of Kerala AIR 1973 | ||||||||||
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| Supreme Court of India | ||||||||||
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| Holding | ||||||||||
| There are certain principles within the framework of Indian Constitution which are inviolable and hence cannot be amended by the Parliament. These principles were commonly termed as Basic Structure. | ||||||||||
| Case opinions | ||||||||||
| Majority by: Sikri C. J. Hegde and Mukherjea, JJ.; Shelat and Gover, JJ.; Jaganmohan Reddy, J.; Khanna, J. Dissent by: Ray J.; Palekar J.; Khanna J.; Mathew J.; Dwived J.; Chandrachud J. |
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| Laws applied | ||||||||||
| Constitution of India, Criminal Procedure Code (CrPC), Indian Evidence Act, Indian Contract Act 1872 | ||||||||||
His Holiness Kesavananda Bharati v. The State of Kerala and Others (AIR 1973 SC 1461[1]) is a landmark decision of the Supreme Court of India. It is the basis for the power of the Indian judiciary to review, and strike down, amendments to the Constitution of India passed by the Indian parliament which conflict with or seek to alter the constitution's 'basic structure'. The judgment also defined the extent to which Parliament could restrict the right to property, in pursuit of land reform and the redistribution of large landholdings to cultivators, overruling previous decisions that suggested that the right to property could not be restricted. The case was a culmination of a series of cases relating to limitations to the power to amend the Indian constitution.
Contents |
S M Sikri, Chief Justice held that the fundamental importance of the freedom of the individual has to be preserved for all times to come and that it could not be amended out of existence. According to the learned Chief Justice, fundamental rights conferred by Part III of the Constitution of India cannot be abrogated, though a reasonable abridgement of those rights could be effected in public interest. There is a limitation on the power of amendment by necessary implication which was apparent from a reading of the preamble and therefore, according to the learned Chief Justice, the expression "amendment of this Constitution", in Article 368 means any addition or change in any of the provisions of the Constitution within the broad contours of the preamble, made in order to carry out the basic objectives of the Constitution. Accordingly, every provision of the Constitution was open to amendment provided the basic foundation or structure of the Constitution was not damaged or destroyed.
Held that the preamble to the Constitution contains the clue to the fundamentals of the Constitution. According to the learned Judges, Parts III and IV of the Constitution which respectively embody the fundamental rights and the directive principles have to be balanced and harmonised. This balance and harmony between two integral parts of the Constitution forms a basic element of the Constitution which cannot be altered. The word 'amendment' occurring in Article 368 must therefore be construed in such a manner as to preserve the power of the Parliament to amend the Constitution, but not so as to result in damaging or destroying the structure and identity of the Constitution. There was thus an implied limitation on the amending power which precluded Parliament from abrogating or changing the identity of the Constitution or any of its basic features.
Held that the Constitution of India which is essentially a social rather than a political document, is founded on a social philosophy and as such has two main features basic and circumstantial. The basic constituent remained constant, the circumstantial was subject to change. According to the learned Judges, the broad contours of the basic elements and the fundamental features of the Constitution are delineated in the preamble and the Parliament has no power to abrogate or emasculate those basic elements of fundamental features. The building of a welfare State, the learned Judges said, " the ultimate goal of every Government .but that does not mean that in order to build a welfare State, human freedoms have to suffer a total destruction. Applying these tests, the learned Judges invalidated Article 31C even in its un-amended form.
Held that the word 'amendment' was used in the sense of permitting a change, in contradistinction to destruction, which the repeal or abrogation brings about. Therefore, the width of the power of amendment could not be enlarged by amending the amending power itself. The learned Judge held that the essential elements of the basic structure of the Constitution are reflected in its preamble and that some of the important features of the Constitution are justice, freedom of expression and equality of status and opportunity. The word 'amendment' could not possibly embrace the right to abrogate the pivotal features and the fundamental freedoms and therefore, that part of the basic structure could not be damaged or destroyed. According to the learned Judge, the provisions of Article 31C, as they stood then, conferring power on Parliament and the State Legislatures to enact laws for giving effect to the principles specified in Clauses (b) and (c) of Article 39, altogether abrogated the right given by Article 14 and were for that reason unconstitutional. In conclusion, the learned Judge held that though the power of amendment was wide, it did not comprehend the power to totally abrogate or emasculate or damage any of the fundamental rights or the essential elements of the basic structure of the Constitution or to destroy the identity of the Constitution. Subject to these limitations, Parliament had the right to amend any and every provision of the Constitution.
H R Khanna broadly agreed with the aforesaid views of the six learned Judges and held that the word 'amendment' postulated that the Constitution must survive without loss of its identity, which meant that the basic structure or framework of the Constitution must survive any amendment of the Constitution. According to the learned Judge, although it was permissible to the Parliament, in exercise of its amending power, to effect changes so as to meet the requirements of changing conditions, it was not permissible to touch the foundation or to alter the basic institutional pattern. Therefore, the words "amendment of the Constitution" in spite of the width of their sweep and in spite of their amplitude, could not have the effect of empowering the Parliament to destroy or abrogate the basic structure or framework of the Constitution.
The 42nd amendment is thought to be the immediate and most direct fall out of the judgement. Apart from it, the judgement cleared the deck for complete legislative authority to amend any part of the constitution except when the amendments are not in consonance with the basic features of the constitution.
The government of Indira Gandhi did not take kindly to this implied restriction on its powers by the court. On 25 April 1972, Justice Ajit Nath Ray, who was among the dissenters, was promoted to Chief Justice of India superseding three senior Judges, Shelat, Grover and Hegde, which was unprecedented in Indian legal history. Advocate C. K. Daphtary termed the incident as "the blackest day in the history of democracy".[2]Justice Mohammad Hidayatullah (previous CJI of India) remarked that this "this was an attempt of not creating 'forward looking judges' but 'judges looking forward' to the office of Chief Justice".[2]
The doctrine was adopted by the Supreme Court of Bangladesh in 1989 by expressly relying on the reasoning in the Kesavananda case of 1973 (Anwar Hossain Chowdhary vs. Bangladesh; 41 DLR 1989 App. Div. 165, 1989 BLD (Spl.) 1).[3]