Kesavananda Bharati case

Also called: Kesavananda Bharati v. State of Kerala (1973) · Topic: Amendment of the Constitution and the Basic Structure · NCERT: Class 11, Ch 2 "Rights in the Indian Constitution"; Class 11, Ch 6 "Judiciary"; Class 11, Ch 9 "Constitution as a Living Document"; Class 12, Ch 6 "The Crisis of Democratic Order"

Meaning

Kesavananda Bharati v. State of Kerala (24 April 1973) is the Supreme Court judgment that created the basic structure doctrine. In it, 13 judges decided by 7:6 that Parliament can amend any part of the Constitution, including the fundamental rights, but cannot change or destroy its basic structure (the core features that hold the Constitution together).

It overruled Golaknath (1967). It made the Constitution, not Parliament, supreme. It also made the judiciary the final judge of what that core is. Every later fight over constitutional amendments starts from this case.

Explanation

Why the case arose

• Art. 368 lets Parliament amend the Constitution.
• Art. 13(2) says any "law" that takes away or cuts down a fundamental right (Part III) is void.
• The courts blocked the government twice:
• Golaknath v. State of Punjab (1967) said a constitutional amendment is also a "law" under Art. 13. So Parliament could not use an amendment to cut down fundamental rights.

• R.C. Cooper v. Union of India (1970), the Bank Nationalisation case, struck down parts of the 1969 bank nationalisation law because the compensation was too low [3].

• Parliament struck back after winning the 1971 election:

• 24th Amendment (1971): an amendment is not "law" under Art. 13. Parliament can amend any provision using its constituent power (the power to make or change the Constitution itself, which is different from ordinary law-making) [2].
• 25th Amendment (1971): replaced "compensation" with "amount" in Art. 31(2), so courts could no longer ask whether the payment was adequate [3]. It also added Art. 31C [5].

• 29th Amendment (1972): put the Kerala Land Reforms (Amendment) Acts of 1969 and 1971 into the Ninth Schedule as entries 65 and 66 [4]. The Ninth Schedule is a list of laws that Art. 31B shields from challenge for breaking fundamental rights [4].

• Swami Kesavananda Bharati, head of the Edneer Mutt in Kerala, challenged the Kerala land laws. His case became a test of the 24th, 25th and 29th Amendments.

What the Court held

• The bench: 13 judges, the largest bench in the Supreme Court's history, led by CJI S.M. Sikri. The vote was 7:6.
• Main holdings:
• It overruled Golaknath. An amendment under Art. 368 is not "law" under Art. 13.
• It upheld the 24th Amendment.
• Parliament can amend any part of the Constitution, including fundamental rights. But it cannot alter or destroy the basic structure.
• The right to property is not part of the basic structure. So the 25th Amendment's change to Art. 31(2) was valid.

• It upheld the 29th Amendment, so the Kerala Acts stayed in the Ninth Schedule.

• The six judges who said there were no limits on the amending power were Ray, Palekar, Mathew, Beg, Dwivedi and Y.V. Chandrachud [6].

• Justice H.R. Khanna's opinion decided the case:
• He agreed with the six that an amendment is not "law" and that property is not a basic feature.
• He agreed with Sikri's group that the amending power has limits, namely the basic structure.
• His vote made the 7:6 majority. Nine judges signed a short "view by the majority" that summed up the result.

The ruling on Art. 31C

• What Art. 31C said: a law giving effect to Art. 39(b) or 39(c) cannot be struck down for breaking Arts. 14, 19 or 31.
• Art. 39(b): the community's material resources should be shared out to serve the common good.
• Art. 39(c): the economy should not concentrate wealth to the common harm.

• Both are Directive Principles of State Policy (DPSPs: guidelines for government in Part IV that courts cannot enforce).

• First part upheld: seven judges upheld it, the six "no-limits" judges plus Khanna J. Khanna J tested it on his own and found it did not damage the basic structure [6].

• Second part struck down: this part said a law's own declaration that it serves Art. 39(b)–(c) cannot be questioned in any court.
• Khanna J said it "contains the seed of national disintegration" [6].
• It let even a state legislature break Arts. 14, 19 and 31 just by adding a declaration. In effect, that was a power to amend the Constitution [6].
• It shut out judicial review (the courts' power to check whether a law follows the Constitution). That "strikes at the basic structure" [6].

The basic structure: what it is and its limits

• The words "basic structure" appear nowhere in the Constitution. The Court read the spirit (purpose and values) over the letter (bare words) of the text.

• There is no single list. Each judge gave examples. CJI Sikri's list was: 1. supremacy of the Constitution 2. republican and democratic form of government 3. secular character of the Constitution 4. separation of powers between the legislature, executive and judiciary 5. federal character of the Constitution

• What the doctrine does (NCERT): 1. It sets specific limits on the amending power. 2. Within those limits, it lets Parliament amend every part of the Constitution. 3. It makes the judiciary the final judge of what the basic structure includes. Courts decide case by case.

• NCERT calls the doctrine "itself an example of a living constitution". A living constitution grows through amendments and court rulings without losing its core.

In the Constitution and practice

• Where it sits: the case interprets Art. 368 (the amending power) and Art. 13 (laws breaking fundamental rights are void). It tested the 24th (1971), 25th (1971) and 29th (1972) Amendments.
• Amendment procedure the case left in place (Art. 368, after 1971):

Step	What is needed
1. Bill introduced	In either House. No prior permission of the President is needed
2. Passed in each House	Special majority: a majority of the House's total membership and two-thirds of members present and voting
3. Deadlock	No joint sitting. Each House must pass the bill on its own
4. Federal provisions	Ratified by at least half the states, each by simple majority
5. President's assent	Obligatory since the 24th Amendment (1971)

• Later life of Art. 31C:
• 42nd Amendment (1976): widened Art. 31C to protect laws for any DPSP [5][6].
• Minerva Mills v. Union of India (1980): struck down that widening because it destroyed the balance between fundamental rights and DPSPs, which is part of the basic structure [5][6].
• Waman Rao v. Union of India (1980): the original Art. 31C is valid to the extent Kesavananda upheld it [5][6].

• Property Owners Association v. State of Maharashtra (5 November 2024): a nine-judge bench led by CJI D.Y. Chandrachud held that Art. 31C, as upheld in Kesavananda, is still in force. Such a law is safe only from challenges under Arts. 14 and 19, and can still be challenged under Art. 300A (the legal right to property). The bench also held that not all private property is a "material resource of the community" [6].

• Pressure on the judiciary afterwards:

• Supersession (26 April 1973): two days after the judgment, A.N. Ray, one of the six "no-limits" judges, was made CJI [6]. Supersession means making a junior judge CJI ahead of senior judges. Three senior judges from the majority were passed over: J.M. Shelat, K.S. Hegde and A.N. Grover. This was seen as an attack on judicial independence.
• Review bench (November 1975): during the Emergency, CJI Ray set up a 13-judge bench to review Kesavananda. It was dissolved after two days.

Don't confuse with

• Golaknath (1967): said Parliament could not amend fundamental rights at all, because an amendment is "law". Kesavananda overruled this. Parliament can amend fundamental rights, but not the basic structure.
• Minerva Mills (1980): struck down the 42nd Amendment's widening of Art. 31C to all DPSPs. Kesavananda dealt with the original Art. 31C, which covered only Art. 39(b)–(c).
• Art. 31B / Ninth Schedule vs Art. 31C: Art. 31B protects named laws listed in the Ninth Schedule, such as the Kerala Acts added by the 29th Amendment [4]. Art. 31C protects any law that gives effect to Art. 39(b)–(c), against Arts. 14, 19 and 31.
• Right to property as a fundamental right vs Art. 300A: Kesavananda held that property is not basic structure. Today, Art. 300A is only a legal right to property, and the 2024 ruling allows Art. 31C laws to be challenged under it [6].

Prelims Hooks

• Kesavananda Bharati (24 April 1973): 13 judges, a 7:6 decision, CJI S.M. Sikri. It overruled Golaknath (1967) and upheld the 24th Amendment.
• Decisive opinion: Justice H.R. Khanna. Superseded judges: Shelat, Hegde and Grover. New CJI: A.N. Ray, appointed 26 April 1973 [6].
• Trap: the case upheld the first part of Art. 31C. It struck down only the clause that barred courts from reviewing the legislature's declaration [6].
• Trap: the right to property is not part of the basic structure. The words "basic structure" appear nowhere in the Constitution, and no exhaustive list exists.
• Amendments tested in the case: 24th (Art. 13(4) and Art. 368(3); amendment is not "law") [2], 25th ("compensation" became "amount"; Art. 31C added) [3], and 29th (Kerala land Acts put in the Ninth Schedule as entries 65–66) [4].
• Property Owners Association (2024): a nine-judge bench held that Art. 31C, as upheld in Kesavananda, still survives [6].

Mains Points

• Parliamentary sovereignty vs constitutional supremacy:
• The 24th and 25th Amendments claimed unlimited amending power for a Parliament with a large majority.

• Kesavananda answered that even elected representatives cannot destroy the Constitution's core. The Constitution is supreme, and the judiciary is its final guardian.

• The counter-majoritarian debate:

• Critics: unelected judges "invented" a limit that is not in the text and kept for themselves the power to define it.

• Defenders: the doctrine reads the spirit over the letter. It protects democracy, federalism and judicial review from temporary majorities. The Emergency (1975–77) and the 42nd Amendment showed why that protection is needed.

• Fundamental rights vs DPSPs, and judicial independence:

• The Court let Art. 39(b)–(c) goals override Arts. 14 and 19, but it would not allow judicial review to be shut out completely. Minerva Mills (1980) later held the balance between Parts III and IV to be a basic feature, and the 2024 ruling keeps that balance.
• The 1973 supersession and the 1975 review bench show the executive pressing the courts after a judgment it did not like. This history fed the later push for appointments through the collegium (the group of senior Supreme Court judges who choose judges).

Related concepts

• 24th Constitutional Amendment Act 1971
• 25th Constitutional Amendment Act 1971
• Basic structure doctrine
• Letter and spirit of the Constitution

Read more

• Parliament vs the judiciary II: the 24th and 25th Amendments and Kesavananda Bharati