His Holiness Kesavananda Bharati v. The State of Kerala and Others (AIR 1973 SC 1461

Case citation

Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...

) is a landmark decision

Landmark decision

Landmark court decisions establish new precedents that establish a significant new legal principle or concept, or otherwise substantially change the interpretation of existing law...

 of the Supreme Court of India

Supreme Court of India

The Supreme Court of India is the highest judicial forum and final court of appeal as established by Part V, Chapter IV of the Constitution of India...

. It is the basis for the power of the India

India

India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...

n judiciary

Judiciary

The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...

 to review, and strike down, amendments to the Constitution of India

Amendment of the Constitution of India

Amendment of the Constitution of India is the process of making changes to the nation's fundamental law. Changes to the Indian constitution are made by the federal parliament. They must be approved by a super-majority in each house of the Parliament of India, and certain amendments must also be...

 passed by the Indian parliament

Parliament of India

The Parliament of India is the supreme legislative body in India. Founded in 1919, the Parliament alone possesses legislative supremacy and thereby ultimate power over all political bodies in India. The Parliament of India comprises the President and the two Houses, Lok Sabha and Rajya Sabha...

 which conflict with or seek to alter the constitution's 'basic structure

Basic structure

The basic structure doctrine is the judge-made principle that certain features of the Constitution of India are beyond the limit of the powers of amendment of the Indian parliament. The doctrine, which was first expressed by the Indian Supreme Court in Kesavananda Bharati v...

'. The judgment also defined the extent to which Parliament could restrict the right to property, in pursuit of land reform and the redistribution of large landholdings to cultivators, overruling previous decisions that suggested that the right to property could not be restricted. The case was a culmination of a series of cases relating to limitations to the power to amend the Indian constitution.

S M Sikri, Chief Justice

S M Sikri, Chief Justice held that the fundamental importance of the freedom of the individual has to be preserved for all times to come and that it could not be amended out of existence. According to the learned Chief Justice, fundamental rights conferred by Part III

Fundamental Rights in India

'Part III - Fundamental Rights' is a charter of rights contained in the Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India...

 of the Constitution of India

Constitution of India

The Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens...

 cannot be abrogated, though a reasonable abridgement of those rights could be effected in public interest. There is a limitation on the power of amendment by necessary implication which was apparent from a reading of the preamble and therefore, according to the learned Chief Justice, the expression "amendment of this Constitution", in Article 368

Amendment of the Constitution of India

Amendment of the Constitution of India is the process of making changes to the nation's fundamental law. Changes to the Indian constitution are made by the federal parliament. They must be approved by a super-majority in each house of the Parliament of India, and certain amendments must also be...

 means any addition or change in any of the provisions of the Constitution within the broad contours of the preamble, made in order to carry out the basic objectives of the Constitution. Accordingly, every provision of the Constitution was open to amendment provided the basic foundation or structure of the Constitution was not damaged or destroyed.

Shelat and Grover, JJ

Held that the preamble to the Constitution contains the clue to the fundamentals of the Constitution. According to the learned Judges, Parts III and IV of the Constitution which respectively embody the fundamental rights and the directive principles have to be balanced and harmonised. This balance and harmony between two integral parts of the Constitution forms a basic element of the Constitution which cannot be altered. The word 'amendment' occurring in Article 368 must therefore be construed in such a manner as to preserve the power of the Parliament to amend the Constitution, but not so as to result in damaging or destroying the structure and identity of the Constitution. There was thus an implied limitation on the amending power which precluded Parliament from abrogating or changing the identity of the Constitution or any of its basic features.

Hegde and Mukherjea, JJ

Held that the Constitution of India which is essentially a social rather than a political document, is founded on a social philosophy and as such has two main features basic and circumstantial. The basic constituent remained constant, the circumstantial was subject to change. According to the learned Judges, the broad contours of the basic elements and the fundamental features of the Constitution are delineated in the preamble and the Parliament has no power to abrogate or emasculate those basic elements of fundamental features. The building of a welfare State, the learned Judges said, " the ultimate goal of every Government .but that does not mean that in order to build a welfare State, human freedoms have to suffer a total destruction. Applying these tests, the learned Judges invalidated Article 31C even in its un-amended form.

Jaganmohan Reddy, J

Held that the word 'amendment' was used in the sense of permitting a change, in contradistinction to destruction, which the repeal or abrogation brings about. Therefore, the width of the power of amendment could not be enlarged by amending the amending power itself. The learned Judge held that the essential elements of the basic structure of the Constitution are reflected in its preamble and that some of the important features of the Constitution are justice, freedom of expression and equality of status and opportunity. The word 'amendment' could not possibly embrace the right to abrogate the pivotal features and the fundamental freedoms and therefore, that part of the basic structure could not be damaged or destroyed. According to the learned Judge, the provisions of Article 31C, as they stood then, conferring power on Parliament and the State Legislatures to enact laws for giving effect to the principles specified in Clauses (b) and (c) of Article 39, altogether abrogated the right given by Article 14 and were for that reason unconstitutional. In conclusion, the learned Judge held that though the power of amendment was wide, it did not comprehend the power to totally abrogate or emasculate or damage any of the fundamental rights or the essential elements of the basic structure of the Constitution or to destroy the identity of the Constitution. Subject to these limitations, Parliament had the right to amend any and every provision of the Constitution.

H R Khanna

H R Khanna broadly agreed with the aforesaid views of the six learned Judges and held that the word 'amendment' postulated that the Constitution must survive without loss of its identity, which meant that the basic structure or framework of the Constitution must survive any amendment of the Constitution. According to the learned Judge, although it was permissible to the Parliament, in exercise of its amending power, to effect changes so as to meet the requirements of changing conditions, it was not permissible to touch the foundation or to alter the basic institutional pattern. Therefore, the words "amendment of the Constitution" in spite of the width of their sweep and in spite of their amplitude, could not have the effect of empowering the Parliament to destroy or abrogate the basic structure or framework of the Constitution.

Fallout

The 42nd amendment

Forty-second amendment of the Indian Constitution

The Forty-second Amendment of the Constitution of India, enacted in 1976, attempted to reduce the power of the Indian Supreme Court and High Courts to pronounce upon the constitutional validity of laws...

 is thought to be the immediate and most direct fall out of the judgement. Apart from it, the judgement cleared the deck for complete legislative authority to amend any part of the constitution except when the amendments are not in consonance with the basic features of the constitution.

The government of Indira Gandhi

Indira Gandhi

Indira Priyadarshini Gandhara was an Indian politician who served as the third Prime Minister of India for three consecutive terms and a fourth term . She was assassinated by Sikh extremists...

 did not take kindly to this implied restriction on its powers by the court. On 25 April 1972, Justice Ajit Nath Ray, who was among the dissenters, was promoted to Chief Justice of India

Chief Justice of India

The Chief Justice of India is the highest-ranking judge in the Supreme Court of India, and thus holds the highest judicial position in India. As well as presiding in the Supreme Court, the Chief Justice also head its administrative functions....

 superseding three senior Judges, Shelat, Grover and Hegde, which was unprecedented in Indian legal history. Advocate C. K. Daphtary termed the incident as "the blackest day in the history of democracy".Justice Mohammad Hidayatullah

Mohammad Hidayatullah

Mohammad Hidayatullah , OBE was the Chief Justice of India. He served as the acting President of India and was also the sixth Vice-President of India for one complete term...

(previous CJI of India) remarked that this "this was an attempt of not creating 'forward looking judges' but 'judges looking forward' to the office of Chief Justice".

The doctrine was adopted by the Supreme Court of Bangladesh in 1989 by expressly relying on the reasoning in the Kesavananda case of 1973 (Anwar Hossain Chowdhary vs. Bangladesh; 41 DLR 1989 App. Div. 165, 1989 BLD (Spl.) 1).