Introduction
The Heart and Soul of Democratic India are its Constitution. According to the
Constitution, Parliament, and the state legislatures in India have the power to make laws
within their respective jurisdictions. This power is not absolute in nature. The
Constitution vests in the judiciary, the power to adjudicate upon the constitutional
validity of all laws.
the founding fathers wanted the Constitution to be an adaptable document rather than a
rigid framework for governance. Hence Parliament was invested with the power to
amend the Constitution under Article 368.
Article 368 of the Constitution gives the impression that Parliament's amending powers
are absolute and encompass all parts of the document. But the Supreme Court has
acted as a brake to the legislative enthusiasm of Parliament ever since independence.
With the intention of preserving the original ideals envisioned by the constitution-
makers, the apex court pronounced that Parliament could not distort, damage, or alter
the “Basic Features” of the Constitution under the pretext of amending it.
The phrase “basic structure” itself cannot be found in the Constitution. The Supreme
The court recognized this concept for the first time in the historic Kesavananda Bharati case
in 1973. Ever since the Supreme Court has been the interpreter of the Constitution and
the arbiter of all amendments made by Parliament.
Before Kesavananda Bharti- The Background
After independence, several laws were enacted with the aim of reforming land
ownership and tenancy structures. Parliament placed these laws in the Ninth Schedule
of the Constitution through the First and Fourth amendments (1951 and 1952
respectively), thereby effectively removing them from the scope of judicial review.
Property owners challenged the constitutional amendments which placed land reforms
laws in the Ninth Schedule before the Supreme Court, saying that they violated Article
13 (2) of the Constitution.
Article 13 (2) provides for the protection of the fundamental rights of the citizen.
Parliament and the state legislatures are clearly prohibited from making laws that may
take away or abridge the fundamental rights guaranteed to the citizen.
While the state argued that any amendment to the Constitution had the status of a law
as understood by Article 13 (2).
In Sankari Prasad Singh Deo v. Union of India (1952) and Sajjan Singh v. Rajasthan
(1955), the Supreme Court rejected both arguments and upheld the power of
Parliament to amend any part of the Constitution including that which affects the
fundamental rights of citizens.
Significantly though, two dissenting judges in Sajjan Singh v. Rajasthan case raised
doubts whether the fundamental rights of citizens could become a plaything of the
the majority party in Parliament.
The Golaknath Verdict
In 1967 an eleven-judge bench of the Supreme Court in the Golaknath v. State of
Punjab case delivering its 6:5 majority judgment put forth the curious position that
Article 368, contained provisions related to the amendment of the Constitution, merely
laid down the amending procedure. Article 368 did not confer upon Parliament the
power to amend the Constitution. The amending power (constituent power) of
Parliament arose from other provisions contained in the Constitution (Articles 245, 246,
248) which gave it the power to make laws (plenary legislative power).
Thus, the apex court held that the amending power and legislative powers of Parliament were
essentially the same. Therefore, any amendment of the Constitution must be deemed
law as understood in Article 13 (2).
Article 13, according to the majority view, expressed this limitation on the powers of
Parliament. Parliament could not modify, restrict or impair fundamental freedoms due to
this very scheme of the Constitution and the nature of the freedoms granted under it.
The judges stated that the fundamental rights were so sacrosanct and transcendental in
importance that they could not be restricted even if such a move were to receive
unanimous approval of both houses of Parliament.
In other words, the apex court held that some features of the Constitution lay at its core
and required much more than the usual procedures to change them.
The Doctrine of Basic Structure- Emergence and The Kesavananda Bharti
Case Milestone
After the landmark case of Golaknath v. State of Punjab, the Parliament passed a series
of Amendments in order to overrule the judgment of the Golaknath case. In 1971,
the 24th Amendment was passed, In 1972, 25th and 29th Amendment were passed
subsequently.
24th Amendment
- In the case of Golaknath, it was laid down in the judgment that every Amendment
which is made under Article 368, will be taken as an exception under Article
13. Therefore, in order to neutralize this effect, the Parliament through an
Amendment in Article 13 of the Constitution annexed clause 4 so that no
Amendment can have an effect under Article 13. - The Parliament in order to remove any kind of ambiguity added clause 3 to
Article 368 reads as follows, “Nothing in article 13 shall apply to any
amendment made under this article.” - In the case of Golaknath, the majority decided that Article 368 earlier contained
the provision in which the procedure of Amendment was given and not the
power so, in order to include the word power in the Article, Article 368 was
amended and the word power was added in the Marginal Note. - The Parliament tried to draw a distinction between the procedure in an
amendment and an ordinary law through an amendment in Article 368(2).
Earlier the President could exercise his power to refuse or withhold a bill for
the amendment. After the 24th Amendment, the President did not have a
choice to refuse or withhold a bill. This was done by the Parliament in order to
protect the amendment from the exception that is mentioned under Article 13
of the Indian Constitution.
25th Amendment
- Through this Amendment, the Parliament wanted to make it clear that they are
not bound to adequately compensate the landlords in case their property is
taken by the State Government and in order to do so the word ‘compensation’
was replaced with the word amount under Article 31(2) of the Constitution. - The link between Article 19 (1)(f) and Article 31(2) was removed.
- Under Article 31(c) of the Constitution, a new provision was added in order to
remove all difficulties and to fulfill the objectives laid down under Article 39(b)
and 39(c), it was decided that Articles 14, 19 & 31 will not be applied to any
law. In order to make Article 39(b) and 39(c) effective, the court was
immunized from intervening in any law made by the Parliament.
29th Amendment
The 29th Amendment was passed in the year 1972. It inserted the Kerala Land Reforms
Act into the 9th Schedule. It meant that the matters related to the Kerala Land Reforms
Act will be outside the scope of the judiciary to try. All the amendments which were
made by the Central Government in some or other way protected the amendments
made by State Government from being tried in the court of law. Provisions of the Kerala
Land Reforms Act along with 24th 25th and 29th Amendments were challenged in the
court of law.
Kesavananda Bharti v. State of Kerala (1973) 4 SCC 225: AIR 1973 SC 1461.2
Kesvananda Bharati was the chief of Edneer Mutt which is a religious sect
in the Kasaragod district of Kerala. Kesvananda Bharti had certain pieces of
land in the sect which were owned by him in his name. The state
government of Kerala introduced the Land Reforms Amendment Act
1969. According to the act, the government was entitled to acquire some of
the sect’s land of which Kesvananda Bharti was the chief.
On 21st March 1970, Kesvananda Bharti moved to Supreme Court under Section 32
of the Indian Constitution for enforcement of his rights which guaranteed under Article
25(Right to practice and propagate religion), Article 26(Right to manage religious
affairs), Article 14 (Right to equality), Article 19(1)(f) (freedom to acquire property),
Article 31 (Compulsory Acquisition of Property).
So the basic Issues before the Court were:-
- Whether the 24th Constitutional (Amendment), Act 1971 is Constitutionally valid
or not? - Whether the 25th Constitutional (Amendment), Act 1972 is Constitutionally valid
or not? - The extent to which the Parliament can exercise its power to amend the
Constitution.
The Apex court with the largest bench that had ever sat on an issue till that
the time arrived at a 6:5 majority and held that Parliament can amend any provision
of the Constitution to fulfill its socio-economic obligations guaranteed to the citizens
under the Preamble subject to the condition that such amendment won’t change the
the basic structure of the Indian Constitution.
The court upheld the 24th Constitutional Amendment entirely but the 1st and 2nd part of
the 25th Constitutional Amendment Act was found to be intra vires and ultra vires
respectively.
It was observed by the court in relation to the powers of the Parliament to amend the
Constitution was a question that was left unanswered in the case of Golaknath.
The answer to the question was found in the present case and it was deduced by the
court that the Parliament has the power to amend the Constitution to the extent that
such amendment does not change the basic structure of the Indian Constitution. It was
laid down by the court that the “Doctrine of Basic Structure” is to be followed by the
Parliament while amending the provisions of the Constitution.
The Doctrine of Basic Structure
The phrase “basic structure” was introduced for the first time by M.K.
Nambiar and other counsels while arguing for the petitioners in the
Golaknath case, but it was only in 1973 that the concept surfaced in the
text of the apex court's verdict.
According to the Doctrine of Basic Structure as opined in Kesavananda Bharti Case,
the Parliament has an unlimited power to amend the Constitution subject to the sole
a condition that such amendments must not change the basic structure of the
Constitution. The Parliament should not in any manner interfere with the basic features
of the Constitution without which our Constitution will be left spiritless and lose it’s very
essence.
The basic structure of the Constitution was not mentioned by the bench and was left to
the interpretation of the courts. The Courts need to see and interpret if a particular
amendment violates the basic structure of our Indian Constitution or not.
The court found that as contended by the respondents actually there is a difference
between ordinary law and an amendment. Keshvananda Bharti’s case to some extent
overruled Golaknath’s case. The court, in this case, answered the question which was
left unanswered in Golaknath’s case in relation to the power of Parliament to amend
provisions of the Constitution.
The court found that the word ‘amend’ which was included in Article 368 does not refer
to amendments that can change the basic structure of the constitution. If Parliament
wants to amend a particular provision of the Constitution then such amendment would
need to go through the test of Basic Structure.
It was also decided that since the Parliament has an unlimited power to amend the
Constitution subject to the basic structure then Parliament can also amend
Fundamental Rights as far as they are not included in the basic structure of the
Constitution.
24th Amendment was upheld by the Bench whereas the 25th Amendment’s 2nd part
was struck down. The 25th Amendment’s validation was subjected to two conditions:
- The court agreed that the word amount and compensation is not equivalent to
each other but still the amount which is provided by the Government to the
landlords should not be unreasonable. - The amount need not be equal to the market value but should be reasonable and closely related to the present
market value.
The 1st part of the 25th Amendment was upheld but it was subject to the
provision that the prohibition of judiciary’s reach will be struck down.
Seven of the thirteen judges in the Kesavananda Bharati case, including the Chief
Justice Sikri who signed the summary statement declared that Parliament’s constituent
power was subject to inherent limitations. Parliament could not use its amending powers
under Article 368 to; damage, emasculate, destroy, abrogate, change or alter; the
basic structure or framework of the Constitution.
The landmark case of Kesavananda Bharti provided stability to the Constitution. The
the judgment that was given by the Bench, in this case, worked out to be a savior of Indian
democracy and saved the Constitution from losing its spirit.
Conclusion:-
Kesvananda Bharti is a landmark case and the decision taken by the Supreme Court
outlined the basic structure doctrine of the Constitution. The decision which was given
by the bench in Kesavananda Bharti’s case was very unique and thoughtful. The
judgment was 700 pages which included a solution for both Parliaments’ right to
amend laws and citizen’s right to protect their Fundamental Rights.
The Bench came up with the Doctrine of Basic Structure in order to protect the interests of
both citizens of India and the Parliament. The Bench through this solution solved the
questions which were left unanswered in Golaknath’s case. The Doctrine of Basic
The structure was introduced to ensure that the amendments do not take away the rights of
the citizens which were guaranteed to them by the Fundamental Rights.
While the idea that there is such a thing as a basic structure to the Constitution is well
established its contents cannot be completely determined with any measure of finality
until a judgment of the Supreme Court in this context comes out. Nevertheless the
sovereign, democratic and secular character of the polity, rule of law, independence of
the judiciary, fundamental rights of citizens, etc. are some of the essential features of the
Constitution that has appeared time and again in the apex court pronouncements.
The certainty that emerged out of this tussle between Parliament and the judiciary is
that all laws and constitutional amendments are now subject to judicial review and laws
that transgress the basic structure is likely to be struck down by the Supreme Court. In
essence Parliament's power to amend the Constitution is not absolute and the Supreme
The court is the final arbiter and interpreter of all constitutional amendments.
