Kesavananda Bharati Case (1973)

Kesavananda Bharati case (1973) is the Supreme Court ruling that laid down the basic structure doctrine, holding that Parliament's power to amend the Constitution under Article 368 does not extend to altering or destroying the Constitution's basic features. Decided by a specially constituted 13-judge bench, the largest ever assembled by the Supreme Court, the judgment was delivered on 24 April 1973 and has since governed every dispute between Parliament's amending power and the judiciary's power of review.

Background: The Conflict Before 1973

Through the 1960s and early 1970s, Parliament and the judiciary repeatedly clashed over laws on land reform, preventive detention, job reservation, and property acquisition, with Parliament amending the Constitution each time a court struck a law down. In the Golak Nath case (1967), the Supreme Court had ruled that Parliament could not use Article 368 to abridge or take away any Fundamental Right, treating a constitutional amendment as "law" for the purposes of Article 13. Parliament responded with the 24th Amendment Act (1971), asserting its power to amend any part of the Constitution, including Part III. This contest came up for final resolution in Kesavananda Bharati.

The Judgment

The 13-judge bench delivered a closely divided verdict. On one point, it sided with Parliament: the Court upheld the 24th Amendment Act and overruled Golak Nath, holding that Parliament is empowered to amend, abridge, or take away Fundamental Rights. On the larger question, it sided with the judiciary, ruling that the constituent power under Article 368, however wide, cannot be used to damage or destroy features that are "basic" to the constitutional scheme. A limited amending power was itself held to be one such basic feature, so Parliament cannot use Article 368 to convert its limited power into an absolute one.

The Court did not attempt an exhaustive list of basic features. Instead, it identified several illustrative ones, including the sovereignty and territorial integrity of India, the federal character of the Constitution, the separation of powers reflected in a parliamentary form of government, and judicial review itself. Because judicial review was treated as a basic feature, Parliament also could not insert an amendment that shielded other amendments from court scrutiny. On the specific dispute before it, the Court held that the right to property was not part of the basic structure and could therefore be validly abridged.

The Basic Structure Doctrine

The doctrine rests on a distinction between amending the Constitution and destroying its identity. Parliament may add, vary, or repeal any provision, including Fundamental Rights, but may not alter the features that give the Constitution its basic identity as a democratic, federal, rights-protecting document with an independent judiciary. Kesavananda Bharati deliberately left the content of the basic structure open-ended, reserving to the judiciary the task of deciding, case by case, whether a feature qualifies — which is why the doctrine has been invoked in disputes far removed from the original case.

Amending the Constitution: Article 368

Article 368 lays down the procedure Parliament must follow to amend the Constitution. An amendment can be initiated only by introducing a Bill in either House of Parliament, never in a state legislature, and the Bill needs no prior presidential recommendation. It must be passed separately by each House with a special majority, that is, a majority of the total membership of the House and a majority of not less than two-thirds of members present and voting. Since there is no provision for a joint sitting on a constitutional amendment Bill, a disagreement between the two Houses cannot be resolved the way ordinary legislation is. Once passed, the Bill is presented to the President, who is bound to give assent.

For the third category, there is no time limit within which states must ratify, and ratification must precede presidential assent. This three-tier structure is why the Indian Constitution is often described as neither as flexible as Britain's nor as rigid as the United States', where amendments need ratification by three-fourths of the states.

Aftermath and Reaffirmation

Parliament tested the limits of Kesavananda Bharati soon after. The 42nd Amendment Act (1976) inserted clauses (4) and (5) into Article 368, declaring that no constitutional amendment could be questioned in any court and that Parliament's amending power was free of all limitations. In Minerva Mills v. Union of India (1980), the Supreme Court struck down these two clauses, holding that the limited nature of the amending power and the availability of judicial review were themselves basic features that could not be removed by the very power Kesavananda Bharati had limited. Minerva Mills also held that the balance between Fundamental Rights and the Directive Principles is part of the basic structure.

The doctrine's application to the Ninth Schedule was clarified in Waman Rao v. Union of India (1980), which held that laws inserted into the Ninth Schedule by amendments made after 24 April 1973, the date of the Kesavananda Bharati verdict, would not get blanket immunity from Fundamental Rights review and could be tested against the basic structure. This position was reaffirmed decades later in I.R. Coelho v. State of Tamil Nadu (2007), also known as the Ninth Schedule case, which held that any law placed in the Ninth Schedule after that date is open to challenge if it damages the basic structure, even though Article 31B ordinarily shields Ninth Schedule laws from Fundamental Rights challenges. Separately, in Kihoto Hollohon v. Zachilhu (1993), the Court struck down Paragraph 7 of the Tenth Schedule, which barred court jurisdiction over anti-defection disputes, because it had not been ratified by the states as required by the proviso to Article 368(2) for a provision affecting the powers of the courts.

UPSC Relevance

Prelims

• Kesavananda Bharati (1973) was decided by a 13-judge bench, the largest in Supreme Court history.
• The judgment overruled Golak Nath (1967) and upheld the 24th Amendment Act (1971).
• The date of the verdict, 24 April 1973, is used as the cut-off in later Ninth Schedule cases (Waman Rao, I.R. Coelho).
• Article 368(4) and (5), added by the 42nd Amendment, were struck down in Minerva Mills (1980).

Mains

• Explain the basic structure doctrine and evaluate its role in balancing parliamentary sovereignty with constitutional supremacy.
• Trace the evolution of the relationship between Fundamental Rights and the amending power from Golak Nath to Kesavananda Bharati to Minerva Mills.
• Discuss why the Constitution's amendment procedure under Article 368 is described as a synthesis of flexibility and rigidity.

FAQ

Q1. What did the Kesavananda Bharati case decide? It held that Parliament can amend any part of the Constitution, including Fundamental Rights, but cannot use its amending power under Article 368 to damage or destroy the Constitution's basic structure.

Q2. How many judges heard the case? A specially constituted bench of 13 judges, the largest ever convened by the Supreme Court of India, delivered the verdict on 24 April 1973.

Q3. Did Kesavananda Bharati list all the basic features of the Constitution? No. It gave illustrative examples, such as sovereignty and territorial integrity, federalism, judicial review, and parliamentary government, leaving the judiciary to decide case by case whether other features also qualify.

Q4. How is the doctrine connected to Minerva Mills? Minerva Mills (1980) applied it to strike down 42nd Amendment clauses that tried to make Parliament's amending power unlimited and immune from judicial review, reinforcing both as basic features.

Q5. Was the right to property part of the basic structure? No. The Court held it was not, and could be validly abridged by constitutional amendment.

Quick Revision

• Kesavananda Bharati v. State of Kerala (1973): basic structure doctrine established.
• 13-judge bench; verdict delivered 24 April 1973.
• Overruled Golak Nath (1967); upheld the 24th Amendment Act (1971).
• Basic features (illustrative): sovereignty and territorial integrity, federalism, judicial review, parliamentary government, limited amending power.
• Right to property held not part of the basic structure.
• Minerva Mills (1980): struck down Article 368(4)-(5) added by the 42nd Amendment.
• Waman Rao (1980) and I.R. Coelho (2007): basic structure test applies to Ninth Schedule laws added after 24 April 1973.
• Article 368 amendment procedure: special majority in both Houses, no joint sitting; state ratification needed for federal provisions.

Sources

• Constitution of India, Article 368 — https://legislative.gov.in/constitution-of-india/
• Supreme Court of India, Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 (Judgment dated 24 April 1973)
• Supreme Court of India, Minerva Mills v. Union of India, AIR 1980 SC 1789
• Supreme Court of India, Kihoto Hollohon v. Zachilhu, AIR 1993 SC 412

Further Reference

For deeper reading on this topic and the wider polity syllabus, these standard works are recommended:

• Indian Polity — M. Laxmikanth — the standard UPSC handbook.
• Introduction to the Constitution of India — D.D. Basu — authoritative constitutional-law treatment.
• The Constitution of India — Bare Act — the official text.