Kesavananda Bharati v. State of Kerala [1973 SC] • Delhi Law Academy Jaipur has taken pains to abridge this lengthy judgment in just about 5 pages so as to spare its students from spending their time and energy in going through its 502 pages.
• We present below not only the gist of the operating part of the judgment, but also the original views of most of the judges comprising the Bench.

The single most important judgment in India’s Constitutional Law history is undoubtedly the 13-Judge Bench Majority Judgment in Kesavananda Bharati case delivered on 24th April 1973. No study of Constitutional Law can be complete without understanding this judgment. But it is easier said than done. Reason is simple. It is an exceptionally lengthy judgment, running in 502 printed pages.

🔵 PRINCIPLE

The Supreme Court laid down the Theory of Basic Structure in this case. It was held that some of the provisions of the Constitution of India form its basic structure, which are not amendable by Parliament by exercise of its constituent power under Article 368.

🧾 Gist of the Operating Part

In this case, the validity of 24th, 25th and 29th amendments to the Constitution of India was challenged. The main question related to the nature, extent and scope of amending power of the Parliament under the Constitution. The views of the majority were as follows:

• (1) L.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643 (which had held that fundamental rights were beyond the amending powers of Parliament) was overruled;
• (2) The Constitution (Twenty-fourth Amendment) Act, 1971 (giving power to Parliament to amend any part of the Constitution) was valid;
• (3) Article 368, as amended, was valid but it did not confer power on the Parliament to alter the basic structure or framework of the Constitution.
  The court, however, did not spell out in any exhaustive manner as to what the basic structure/framework was except that some judges gave a few examples.
• (4) The amendment of Article 31C containing the words “and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy” was held invalid.

🧠 Original views of individual judges

The fundamental rights were considered of such importance that right was given to an aggrieved person to move the highest court of the land, i.e. the Supreme Court, by appropriate proceedings for the enforcement of the rights conferred by this part, and this was guaranteed.

The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the constitution remains the same.

The basic structure may be said to consist of the following features:

• (1) Supremacy of the Constitution;
• (2) Republican and Democratic forms of Government;
• (3) Secular character of the Constitution;
• (4) Separation of powers between the legislature, the executive and the judiciary;
• (5) Federal character of the Constitution.

The above structure is built on the basic foundation, i. e. the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed.

👥 J.M. Shelat & A.N. Grover, JJ.

The Constitution is an organic document which must grow and it must take stock of the vast socio-economic problems, particularly, of improving the lot of the common man consistent with his dignity and the unity of the nation.

👥 K.S. Hegde & Mukherjea, JJ.

We find it difficult to accept the contention that our Constitution-makers after making immense sacrifices for achieving certain ideals made provision in the Constitution itself for the destruction of those ideals.
Likewise, a Constitution like ours contains certain features which are so essential that they cannot be changed or destroyed. In any event it cannot be destroyed from within. In other words, one cannot legally use the Constitution to destroy itself. Under Article 368 the amended Constitution must remain ‘the Constitution’ which means the original Constitution. When we speak of the ‘abrogation’ or ‘repeal’ of the Constitution, we do not refer to any form but to substance. If one or more of the basic features of the Constitution are taken away to that extent the Constitution is abrogated or repealed. If all the basic features of the Constitution are repealed and some other provisions inconsistent with those features are incorporated, it cannot still remain the Constitution referred to in Article 368. The personality of the Constitution must remain unchanged.

👤 K.K. Mathew, J.

Every well-drawn Constitution will provide for its own amendment in such a way as to forestall as is humanly possible all revolutionary upheavals. No existing Constitution has reached its final form and shape and become, as it were, a fixed thing incapable of further growth. Human societies keep changing; needs emerge, first vaguely felt and unexpressed, steadily becoming more and more exigent, generating a force which, if left unheeded and denied response, may burst forth.

Jefferson said that there is nothing sanctimonious about a Constitution and that nobody should regard it as the Ark of the Covenant, too sacred to be touched. Nor need we ascribe to men of preceding age, a wisdom more than human and suppose that what they did should be beyond amendment. A Constitution is not an end in itself, rather a means for ordering the life of a nation. The generation of yesterday might not know the needs of today, and, ‘if yesterday is not to paralyse today’, it seems best to permit each generation to take care of itself.

The sentiment expressed by Jefferson was echoed by Dr Ambedkar. How could he have said that what Jefferson said is “not merely true but absolutely true”, unless he subscribed to the view of Jefferson that “each generation is a distinct nation with a right, by the will of the majority to bind themselves but none ‘to bind the succeeding generations more than the inhabitants of another country”, and its corollary which follows as ‘the night the day’ that each generation should have the power to determine the structure of the Constitution under which they live.

And how could this be done unless the power of amendment is plenary, for it would be absurd to think that Dr Ambedkar contemplated a revolution in every generation for changing the Constitution to suit its needs and aspirations. I should have thought that if there is any implied limitation upon any power, that limitation is that the amending body should not limit the power of amendment of the future generation by exercising its power to amend the amending power.

Mr Palkhivala said that if the power of amendment of the amending power is plenary, one generation can, by exercising that power, take away the power of amendment of the Constitution from the future generations and foreclose them from ever exercising it. I think the argument is too speculative to be countenanced. It is just like the argument that if men and women are given the freedom to choose their vocations in life, they would all jump into a monastery or a nunnery, as the case may be, and prevent the birth of a new generation; or the argument of some political thinkers that if freedom of speech is allowed to those who do not believe in it, they would themselves deny it to others when they get power and, therefore, they should be denied that freedom today, in order that they might not deny it to others tomorrow.

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