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Kesavananda Bharati vs State of Kerala

The first time this question was raised before the Supreme Court, was in the famous Kesavananda Bharati vs State of Kerala case.

Kesavananda Bharati

Kerala Government had passed a land reform legislation, which imposed restrictions on the management of religious properties. Kesavananda Bharati challenged this legislation under Article 26, a part of the Fundamental Rights.

A 13-Judge bench was set up by the Supreme Court.

The question pertaining to this was – Was the power of the Parliament to amend the Constitution without any restrictions? Could the Parliament amend, alter, or abrogate any of the Constitution in such a way, that it could even take away fundamental rights?


Under the Shankari Prasad Case of 1951, the Supreme Court gave the Parliament an absolute power to amend the Constitution. Further, in the Sajjan Singh Case of 1965, the same position was repeated.

Under both the cases, the judiciary ruled that under Article 13, the term “law” includes rules or regulations made in exercise of a legislative power, and not the amendments made under Article 368 by the Parliament.

This meant the Parliament had the power to make changes in any part of the Indian Constitution, including the Fundamental Rights.

However, under Article 13(2), the state cannot make any laws which can take away or abridge the Fundamental Rights (Part III). Any law which would be made in contradiction to the clause, would stand void.

Again, in the Golaknath Case of 1967, the Supreme Court held that Parliament couldn’t amend the Part III, i,e the Fundamental Rights.

  • This power to amend the Constitution was only with a Constituent Assembly.
  • The Court also held that any amendment came under the ambit of law under the Article 13, and hence couldn’t take away or abridge a Fundamental Right conferred under Part III of the Indian Constitution.

To dis-effect the Supreme Court judgment of Golaknath Case of 1967, RC Cooper case of 1970, and Madhavrao Scindia case of 1970, the then government made major amendments to the Constitution.

  • Under the 24th Constitution Amendment of 1971, Parliament gave itself an absolute power to amend any part of the Constitution.
  • Further, the 25th Amendment Act of 1972 removed Right to Property as a Fundamental Right.

What was the verdict in the Kesavananda Bharati Case?

The judgment is considered a landmark in the history of judgements made by the highest judiciary. Delivered on 24th April 1973, the judgment was passed at a thin majority of 7:6.

Under this, the majority of the Constitutional provisions could be amended by the Parliament to fulfill the socio-economic obligations guaranteed to the citizens under various constitutional provisions.

  • However, all such amendments could be made only within the ambit of the basic structure of the Constitution.
  • The court upheld the 24th Constitutional Amendment.
  • It, however, found the second part of the 25th Constitutional Amendment ultra vires.
  • It further declared Article 31 C unconstitutional and invalid.
  • It did this on the grounds that judicial review was a part of the Basic Structure, and hence couldn’t be taken away.
  • Despite this judgment, it also upheld the decision of the Parliament to remove Right to Property from the list of fundamental rights.

What is the Basic Structure Doctrine?

  • The basic structure doctrine is a borrowed idea from the German Constitution, which was amended after the Nazi regime to protect some fundamental laws and rights.
  • In India, the Basic Structure Doctrine gave roots to the judicial review, which could review the legislations passed by the Parliament.
  • What constitutes a Basic Structure? This continues to be a deliberation.
  • Over the time, some of the things have been made a part of the Basic Structure.
  • These include
    • Supremacy of the constitution
    • Rule of law
    • Sovereignty, liberty and republic nature of Indian polity.
    • Judicial review
    • Harmony and Balance between fundamental rights and directive principles.
    • Separation of power.
    • Federal character.
    • Parliamentary system.
    • Rule of equality.
    • Unity and integrity of the nation.
    • Free and fair elections. o Powers of SC under Article 32,136,142,147
    • Power of HC under Article 226 and 227.
    • Limited power of parliament to amend the constitution.
    • Welfare state.
    • Freedom and dignity of an individual.

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