Equivalent Citation: AIR1973SC1461, (1973)4SCC225, SuppSCR1
Kesavananda Bharati Sripadagalvaru
State of Kerala
1. S. M. Sikri, C.J.
2. A. N. Grover, J.
3. A. N. Ray, J.
4. D. G. Palekar,J.
5. H. R. Khanna, J.
6. M. Shelat, J.
7. K. K. Mathew, J.
8. K. S. Hegde, J.
9. M. H Beg, J.
10. P. Jaganmohan Reddy, J.
11. S. N. Dwivedi, J.
12. A. K. Mukherjea, J.
13. Y. V. Chandrachud, J.
Position prior to Kesavananda’s case
•Land Reforms enacted in various states for keeping the electoral promise of implementing the socialistic goals.
•The First and Fourth amendments of 1951 and 1952.
•Contention: The aforesaid amendments violative of art 13(2).
The Golaknath Verdict
IC Golaknath v. State of Punjab AIR 1967 SC 1643
•The validity of Constitution (seventeenth amendment) Act, 1964 which included in 9th schedule, The Punjab Security of Land Tenures Act, 1953 (Act 10 of 1953) and the Mysore Land Reforms Act(Act 10 of 1962) as amended by Act 14 of 1965.
•Contention: Sankari Prasad and Sajjan Singh wrongly decided.
•SC held that art 368 merely laid down the amending procedure.
•Amending power arose from other articles- 245,246 and 248.
•Any amendment be deemed law under art. 13(2)
•Concept of implied limitations on Parliament's power to amend the Constitution invoked.
•Article 13, expressed this limitation on the powers of Parliament.
•‘Basic structure' introduced for the first time by M.K. Nambiar
Post Golaknath Position
•Private member's bill tabled by Barrister Nath Pai seeking to restore the supremacy of Parliament's power introduced; couldn’t be passed.
•Nationalisation of banks and abolition of privy purses.
•The battle about the supremacy of Parliament vis-à-vis the power of the courts to interpret and uphold the Constitution.
•Dissolution of the Lok Sabha and calling of a snap poll.
•Eight of the ten manifestos in the 1971 elections called for changes in the Constitution in order to restore the supremacy of Parliament.
•Spate of amendments made between July 1971 and June 1972; Several curbs on the right to property passed
Kesavananda Bharati’s Case
•Six Writ petitions challenging the validity of 24th ,25th & 29th Amendment Acts of the Constitution.
•Writ petition No 135 of 1970:enforcement of Fundamental Right of the petitioner under Article 25,26,14.19(1)(f) and 31.
•Kerala land Reform Act 1963, as amended by Kerala Land Reform (Amendment) Act 1969 to be declared unconstitutional , ultra vires & void ; appropriate writ or order to be issued during the pendency of the petition.
• During the Pendency of the writ petition the Kerala Reforms Act 1971 was passed.
•Kunjukutty Vs State of Kerala, upheld decision in Narayan Nair Vs State of Kerala- certain sections of the Act struck down.
•25th Amendment- the word 'amount' substituted for the word 'compensation' in Clause (B) of Article 31.
•29th Amendment-put the two Acts, in the Ninth Schedule.
•An application for urging additional grounds made; application allowed.
• The case was placed before the Constitutional bench, it referred this case to a larger bench; Larger bench of 13 judges constituted.
•The verdict found in eleven separate judgments.
•Majority view delivered by the then Chief Justice Sikri..
•Minority view delivered by Justice A.N. Ray.
•Is the provision of the Art 368 of the Constitution wide enough to amend all the provisions of the constitution including the fundamental rights in Part III of the Constitution?
•Are the 24th ,25th and 29th Amendments of the Constitution valid?
•Was Golak Nath’s Case correctly decided by the Court?
Is the provision of the Art. 368 of the Constitution wide enough to amend all the provisions of the constitution including the Fundamental Rights in Part III of the Constitution?
•Question whether art 368 has the ‘power’ to amend the Constitution?
•Procedure laid down for amendment.
•The intention is not to use the word "amendment" in the widest sense; interpreted as per preamble
•Fundamental rights would remain in substance as they are not be amended out of existence.
•Appeal by the respondents to democratic principles and the necessity of having absolute amending power is fruitless.
•“Amendment of this Constitution" - any addition or change in any of the provisions of the Constitution within the broad contours of the Preamble; fundamental rights cannot be abrogated but reasonable abridgements of fundamental rights can be effected in the public interest.
Are the 24th ,25th and 29th Amendments of the Constitution valid?
Validity of 24th Amendment
•Contention of Respondents: the 24th Amendment enlarges the power of Parliament to amend the Constitution; Parliament can confer additional powers of amendment on it.
•Finding: The meaning of the expression "Amendment of the Constitution" does not change when one reads the proviso. Article 368 can only be amended so as not to change its identity completely. Parliament cannot get rid of the true meaning of the expression "Amendment of the Constitution" so as to derive power to abrogate fundamental rights.
•Words “Notwithstanding anything in the Constitution" are designed to get rid of the argument that Article 248 and Entry 97 List I contains the power of amendment.
•“In exercise of its constituent power" only serves emphasize that it is not ordinary legislative power that Parliament is exercising under Article 368 but legislative power of amending the Constitution. Thus 24th Amendment is valid.
Validity of Sec. 2 of the Constitution (Twenty-fifth Amendment) Act, 1971
•Comparison of art 31(B) before and after the amendment.
•Substance of right to property under art 31.
•Parliament cannot empower legislatures to fix an arbitrary amount or illusory amount or an amount that virtually amounts to confiscation.
•Sec. 2 of Constitution (Twenty-fifth Amendment) Act, 1971 valid .
Validity of Section 3 of the Constitution (Twenty-Fifth Amendment) Act, 1971
•Article 31C empowers State legislatures, subject to the condition laid down in Article 31C itself, to take away or abridge rights conferred by Articles 14, 19 and 31.
•Parliament cannot enable the legislatures to abrogate them. This provision enables legislatures to abrogate fundamental rights and therefore must be declared unconstitutional.
•Article 368 of this Constitution itself provides that amendment may be initiated only by the introduction of a bill for the purpose in either House of Parliament. In other words, Article 368 does not contemplate any other mode of amendment by Parliament and it does not equally contemplate that Parliament could set up another body to amend the Constitution.
•Section 3 of the Constitution (Twenty-fifth Amendment) Act 1971 is void as it delegates power to legislatures to amend the Constitution.
Validity of 29th Amendment
•The device of Article 31-B and the Ninth Schedule is bad insofar as it protects statutes even if they take away Fundamental Rights.
•Arguments- one object of Article 31-B is to prevent time-consuming litigation, which held up implementation of urgent reforms; challenging the validity of an enactment takes years before the validity is finally determined. Surely, this is not a good reason to deprive persons of their Fundamental Rights.
•The 29th Constitutional Amendment is ineffective .
Findings by court:
•The 24th, 25th and 29th Amendments Acts are valid.
•Golak Nath's case was wrongly decided and that an amendment to the Constitution was not a "law" for the purposes of Article 13; Golak Nath's case overruled.
•The power of amendment is plenary and can be used to amend all the articles of the constitution (including the Fundamental Rights).
• The power to amend does not include the power to alter the basic structure of the Constitution so as to change its identity.
• There are no inherent or implied limitations on the power of amendment under Article 368".
•Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution; no unanimity of opinion about what appoints to that basic structure.
What is basic structure?
Sikri, C.J. : # Supremacy of the Constitution
# Republican and democratic form of government
# Secular character of the Constitution
# Separation of powers between the legislature, executive and the judiciary
# Federal character of the Constitution
Shelat, J. and Grover, J. : # The mandate to build a welfare state contained in the Directive Principles of State Policy
# Unity and integrity of the nation
# Sovereignty of the country.
Hegde, J. and Mukherjea, J. : # Sovereignty of India
# Democratic character of the polity
# Unity of the country
# Essential features of the individual freedoms secured to the citizens
# Mandate to build a welfare state
Jaganmohan Reddy, J. : # Sovereign democratic republic
# Justice - social, economic and political
# Liberty of thought, expression, belief, faith and worship
# Equality of status and the opportunity.
Former Chief Justice K. Subba Rao : "The existence of a remote judicial control may only act as a brake against hasty and unreasonable legislative and executive action and as a form of guarantee to the public against instability. The stability of the Constitution stabilizes the State .
Position post Kesavananda’s case:
•Election Commission case; Thirty-ninth amendment was passed; The Supreme Court applied the theory of basic structure and struck down cl.(4) of article 329-A,which was inserted by the 39th Amendment in 1975 .
•Declaration of a National Emergency in June 1975.
•Sardar Swaran Singh committee constituted; the government incorporated several changes to the Constitution including the Preamble, through the Forty-second amendment .
•A limited amending power itself is a basic feature of the Constitution- Y.V Chandrachud.
•Amendment to Article 31C unconstitutional as it destroyed the harmony and balance between fundamental rights and directive principles which is an essential or basic feature of the Constitution.
•In Minerva Mills case the Supreme Court by majority by 4 to 1 majority struck down clauses(4) and (5) of the article 368 inserted by 42nd Amendment.