KESAVANANDA BHARATI CASE

(AIR 1973 SC 1461)

• Landmark judgement (precedent)

• 13 judges bench

• Gave birth to the concept of “BASIC STRUCTURE DOCTRINE”

• Paved the way for struggle between parliament and judiciary

• Fight for absolute power in regards to amendment power of any provision of the constitution by virtue of Article 368.

History of amending power of parliament

• Shankari Prasad v. UOI (AIR 1951 SC 458)• Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845)• IC Golaknath v. St. Of Punjab (AIR 1967 SC 1643)

Shankari Prasad v. UOI (AIR 1951 SC 458)

• 1st amendment challenged (Art 31 A and 31 B)• Question on difference between ordinary legislative

power and amending constituent power.• Held that Art 13 (2) did not affect amendments made

under Art. 368.

Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845)

• 17th Amendment was challenged • Held that amendment is valid• Parliament can amend anything in the constitution

according to procedure laid down in Art.368.

IC Golaknath v. St. Of Punjab (AIR 1967 SC 1643)

• 1st Amendment, 4th and 17th amendment was challenged.• S.C adopted a doctrine of prospective over ruling under

which three constitutional amendment continued to be valid.

• Held that parliament had no power to amend provision of part III.

• S.C also interpreted that amending power under Art. 368 is same as legislative power under Art 248, entry 97 of 7th schedule (Union list). It is therefore a ‘law’ for the purpose of Art. 13 (2).

Brief Facts:• In 1970 Swami HH Sri Kesavananda Bharati, Senior head of a

Hindu Mutt situated in Edneer, a village in District of Kerala, challenged the Kerala government's attempts, under two state land reform acts, to impose restrictions on the management of its property.

• Swami filled his petition under Article 26, concerning the right to manage religiously owned property without government interference.

• Major amendments to the Constitution (the 24th, 25th and 29th) had been enacted by Indira Gandhi’s government through Parliament. All these amendments were under challenge in Kesavananda Bharati case.

ISSUES• Whether any limitation or restriction could be placed on the amending

power of parliament ?• Validity of 24th 25th and 29th amendment of C.O.I ?• Whether law word includes amendment ?• Can parliament destroy and frame new constitution ?• Is there any difference between ordinary legislative power and constituent

power ?• What exactly is basic structure doctrine ?• Whether judicial review could be done away with ?

Amendments

• Many amendment brought about by parliament to override the controversial judgements standing in the way of parliament and to uphold their power to amend.

• 24th amendment• 25th amendment• 29th amendment

What is 24th Amendment• passed in the year 1971• Objective- to remove hindrance and difficulties created by the decision of S.C

in the year 1967 in Golaknath Case. • By way of amendment, parliament introduced the following provisions:• Art 13(4)• Amending the heading of Art 368• Art 368 (1)• President obligation to give assent to bill amending the constitution• Art 368 (3)

What is 25th Amendment

• Passed in the year 1972.• Art 31 Clause 2 amended• Clause (2B) inserted in Art.31 after clause (2A)• Art. 31 C inserted by way of this amendment

What is 29th Amendment• Kerala Govt. faced practical difficulties and to overcome

them amended Kerala land Reform Act, 1963 through:Kerala land Reform (Amendment) Act, 1969, andKerala land Reform (Amendment) Act, 1971• Certain provision of the principal act, 1963 as amended were

challenged in H.C of Kerala and S.C. This posed as a threat to implementation of land reforms in Kerala.

• 29th Amendment passed in the year 1972. • 29th Amendment - include these amendment acts in 9th

schedule to the constitution.• Protection under Article 31 B.

Art. 31 B & Ninth Schedule• Ninth schedule and Art. 31 B complement each other.• Art 31 B came into effect by way of 1st amendment act, 1951• Art 31 B talks about protection given to all acts and regulations

mentioned in 9th schedule nor any of the provision thereof shall be declared void, or ever have to become void on grounds that such act and regulation takes away or violate the F.R

• All acts in ninth schedule are provided immunity from judicial review, overriding judgements, decree and order to the contrary, if any.

Kesavananda Bharti case (13 JB)• 24th, 25th and 29th amendment challenged.• Amendments held valid.• Over- ruled IC Golaknath v. State of Punjab (11 JB)• Held that though parliament had wide powers to amend, such powers were

curtailed by maintaining the basic spirit of constitution.• The parliament could not snatch certain basic principles enshrined in the

constitution.• No absolute power – S.C gave a new concept of Basic structure doctrine.

Parliament could take away or amend F.R as long as it did not violate THE BASIC STRUCTURE.

What is Basic Structure Doctrine?• Indian judicial principle

• The basic features of the Constitution have not been explicitly defined by the Judiciary.

• Basic feature is determined by the Court in each case that comes before it.• The doctrine thus forms the basis of a limited power of the Supreme Court to

review and strike down constitutional amendments enacted by the Parliament which conflict with or seek to alter this "basic structure" of the Constitution.

• Basic structure doctrine is referred as the basic spirit of constitution. It could find its roots in the preamble.

• Preamble is a 85 words summary of constitution. It is the basic essence of constitution. The objective of constitution lies in the preamble.

• Balance between F.R and DPSP• Judicial Review also part of basic structure.• Article 14 and 21 is also part of basic structure.

Indria Nehru Gandhi v. Raj Narian (AIR 1975 SC 2299)

• 39th amendment was challenged (Art 329 A clause 4)• The amendment was made to the jurisdiction of all courts

including S.C over disputes related to elections involving the prime minister of India.

• Held that it is beyond the amending power of the parliament as it destroyed the basic structure of the constitution.

• Judicial review part of basic structure – upheld the doctrine given in Kesavananda Bharti case.

Basic Structure By J. YV Chandrachud in Indra Nehru Gandhi Case

• Sovereign democratic republic states• Equality of status and opportunity of an individuals• Secularism and freedom of conscience and religion• Rule of law

Minerva Mills v. UOI(AIR 1980 SC 1789)

• Validity of 42nd amendment was challenged.• S.C struck down clauses 4 & 5 of Art. 368• It was ruled by the court that a limited amending power

itself is a basic feature of constitution of India.• Art.31 C - 42nd amendment declared unconstitutional –

which extended the 25th amendment – that is it replaced Art 39 b and c by all DPSP.

• Procedure describe by Art. 368 (2) is mandatory.

Conclusion

• Dictatorship v. Democracy.• Restriction placed on power to amend, otherwise absolute

power would lead to dictatorship. Essential to uphold democratic values. Nothing can take away the power of judicial review by courts.

• Parliament taking advantage of 9th schedule. Placing all laws that violate the basic structure doctrine.

• The landmark judgement of Supreme Court in I.R.Coelho which was delivered on January 11 2007 it is now well settled principle that any law placed under Ninth Schedule after April 23 1973 are subject to scrutiny of Court's if they violated fundamental rights and thus put the check on the misuse of the provision of the Ninth Schedule by the legislative.