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

Detail

1. The background: why Parliament struck back in 1971

• Art. 368 is the article that lets Parliament amend the Constitution.
• Art. 13(2) says the State cannot make a "law" that takes away or cuts down a fundamental right (Part III). If it does, that law is void.
• Golaknath v. State of Punjab (1967) held that a constitutional amendment is also a "law" under Art. 13. So Parliament could not amend the Constitution to cut down fundamental rights.
• R.C. Cooper v. Union of India (1970) is the Bank Nationalisation case:
• In 1969 the Indira Gandhi government nationalised 14 private banks [4].
• A shareholder, Rustom Cavasjee Cooper, said the compensation was too low and that this broke his property rights [4].

• The Supreme Court agreed with him and struck down parts of the law [4].

• After its big win in the 1971 Lok Sabha election, the government used its large majority to pass a series of amendments that reversed these judgments.

2. The 24th Constitutional Amendment Act, 1971

• Purpose: to say clearly that Parliament can amend any provision of the Constitution, including the fundamental rights in Part III. This reversed Golaknath.
• Constituent power means the power to make or change the Constitution itself. It is different from ordinary law-making power. The 24th Amendment said Parliament uses its constituent power when it amends under Art. 368.
• What the Act changed:

Provision	Change made by the 24th Amendment (1971)
Art. 13(4) (new)	Nothing in Art. 13 applies to an amendment made under Art. 368 [2]
Art. 368(1)	Parliament may amend any provision "by way of addition, variation or repeal" in exercise of its constituent power
Art. 368 (heading and scope)	It now covers both the power to amend and the procedure for amending [2]
Art. 368(2)	The President shall give assent to a duly passed amendment bill. The President cannot refuse or return it
Art. 368(3) (new)	Art. 13 does not apply to amendments made under Art. 368

• Effect: an amendment is not "law" under Art. 13. So an amendment cannot be struck down just because it cuts down a fundamental right.

How an amendment passes under 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 separately	Special majority: a majority of the House's total membership, and two-thirds of the members present and voting
3. Deadlock between the Houses	There is no joint sitting. Each House must pass the bill on its own
4. Federal provisions (Art. 368(2) proviso)	Must also be ratified by the legislatures of at least half the states, each by simple majority
5. President's assent	Obligatory since the 24th Amendment (1971)

3. The 25th Constitutional Amendment Act, 1971

• Purpose: to reverse R.C. Cooper (1970) [4]. The Act came into force on 20 April 1972 [4].
• "Compensation" became "amount" in Art. 31(2):
• Before 1971, courts could check whether the payment for taken property was fair "compensation".

• After the change, the State paid only an "amount" that the law fixed. Courts could not question whether it was adequate [4].

• Art. 31(2B) (new): cut the link with Art. 19(1)(f) (then the right to acquire, hold and dispose of property). A property-acquisition law could no longer be challenged under Art. 19(1)(f).

• Art. 31C (new), inserted by Section 3 of the Act [6]:
• First part: a law that gives effect to the State's policy under Art. 39(b) or Art. 39(c) cannot be declared void because it breaks Art. 14, 19 or 31.
  • Art. 39(b): ownership and control of the material resources of the community should be shared out to serve the common good.
  • Art. 39(c): the economy should not concentrate wealth and the means of production to the common harm.
  • Both are Directive Principles of State Policy (DPSPs). These are guidelines for government in Part IV. Courts cannot enforce them.
• Second part: if a law declares that it gives effect to this policy, that declaration cannot be questioned in any court.

• Proviso: a state law gets this protection only if it has been reserved for, and received, the President's assent.

• Why Art. 31C mattered: for the first time, some DPSPs were given priority over fundamental rights.

4. The 26th (1971) and 29th (1972) Amendments

• 26th Amendment, 1971: abolished privy purses. These were yearly payments the government had promised to former princely rulers when their states joined India. It also ended the rulers' official recognition and special privileges.
• 29th Amendment, 1972: put two Kerala land laws into the Ninth Schedule as entries 65 and 66 [5]:
• the Kerala Land Reforms (Amendment) Act, 1969, and

• the Kerala Land Reforms (Amendment) Act, 1971 [5].

• Ninth Schedule is a list of laws protected by Art. 31B. A law placed there cannot be struck down for breaking fundamental rights [5].

• Why it was done: parts of these Kerala laws had been challenged in the Kerala High Court and the Supreme Court. This left land reform in doubt [5].
• These are the laws Swami Kesavananda Bharati (head of the Edneer Mutt, Kerala) challenged. His challenge grew into a test of the 24th, 25th and 29th Amendments.

5. Kesavananda Bharati v. State of Kerala (24 April 1973)

The bench

• 13 judges, the largest bench in the Supreme Court's history, led by CJI S.M. Sikri.
• The decision was 7:6.
• The six judges who held the amending power had no limits were Ray, Palekar, Mathew, Beg, Dwivedi and Y.V. Chandrachud [7].

What the Court held

• Overruled Golaknath (1967): an amendment under Art. 368 is not "law" under Art. 13.
• Upheld the 24th Amendment (1971).
• Parliament can amend any part of the Constitution, including the 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.
• Upheld the 29th Amendment (1972). The Kerala Acts stayed in the Ninth Schedule.

What it held on Art. 31C

• First part upheld:
• Seven judges upheld it: the six "no-limits" judges, plus Justice Khanna [7].

• Khanna J did not think the amending power was unlimited. He tested Art. 31C on his own and found that its first part did not damage the basic structure [7].

• Second part (the "no court review" declaration) struck down:

• Khanna J called it something that "contains the seed of national disintegration" [7].
• It let any legislature, even a state legislature, make laws that broke Arts. 14, 19 and 31 just by adding a declaration. This was in effect a power to amend the Constitution [7].
• It made the legislature the final judge of whether its own law served Art. 39(b)–(c). Shutting out even this limited judicial review (the courts' power to check whether a law or action follows the Constitution) "strikes at the basic structure" [7].

Who decided the case

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

6. The basic structure doctrine

• Definition: Parliament can amend any part of the Constitution. But it cannot destroy the Constitution's core features. These core features are the basic structure.

• 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

• Later cases added more features. The consolidated list is in §8.

• What the doctrine did (NCERT Class 11): 1. It set specific limits on the amending power. 2. Within those limits, it allowed Parliament to amend every part of the Constitution. 3. It made the judiciary the final judge of what the basic structure includes. Each new case adds to the meaning.

7. Letter and spirit: the doctrine as a "living constitution"

• Letter of the Constitution: the bare words of the text.
• Spirit of the Constitution: the purpose, values and intent behind the words.
• The phrase "basic structure" appears nowhere in the text. The Court "invented" it by reading the spirit over the letter. It looked at the intent of the framers and the social conditions in which the Constitution was written.
• Living constitution: a constitution that grows and adapts through amendment and through the way courts read it, without losing its core. NCERT calls the basic structure doctrine "itself an example of a living constitution".

8. The later story of Art. 31C

• 42nd Amendment (1976), Section 4: widened Art. 31C. It now protected laws giving effect to any DPSP, not just Art. 39(b)–(c) [6][7].
• Minerva Mills v. Union of India (1980): struck down this widening. The Court held it broke the basic structure because it destroyed the balance between fundamental rights and DPSPs [6][7].
• Waman Rao v. Union of India (1980): held that the original Art. 31C is valid to the extent Kesavananda upheld it [6][7].
• Property Owners Association v. State of Maharashtra (5 November 2024, 2024 INSC 835):
• A nine-judge bench led by CJI D.Y. Chandrachud held that Art. 31C, as upheld in Kesavananda Bharati, is still in force [7].
• A law protected by Art. 31C is safe only from challenges under Arts. 14 and 19. It can still be challenged under other provisions, such as Art. 300A (the legal right to property) [7].
• The Court also held that not all private property is a "material resource of the community" under Art. 39(b) [7].

9. The aftermath: Parliament vs the judiciary goes on

• Supersession (26 April 1973): two days after the judgment, A.N. Ray was made CJI. He had been one of the six judges who held the amending power unlimited [7].
• Three senior judges were passed over: J.M. Shelat, K.S. Hegde and A.N. Grover. All three had been in the majority.

• Supersession means appointing a junior judge as CJI over the heads of senior judges. It broke the seniority convention and was seen as an attack on judicial independence (see the judiciary note).

• The review bench (November 1975): during the Emergency, CJI Ray set up a 13-judge bench to review Kesavananda. It was dissolved after two days (see the emergency-1975 note).

• Exam practice (NCERT keps209: check your progress, Exercises 5, 6 and 10):
• Any statement that a full list of basic features exists in the Constitution is false.
• A statement that names features as basic structure is only partly true, because there is no exhaustive list. The courts decide case by case.
• Statements that Parliament can amend fundamental rights within limits, and that the judiciary decides the basic structure, are true.
• (Answer key for the NCERT statements: (a) false; (c) partly true; (d) and (e) true.)

Prelims Hooks

• 24th Amendment (1971) → inserted Art. 13(4) and Art. 368(3) (an amendment is not "law"), and made the President's assent obligatory for amendment bills.
• 25th Amendment (1971) → "compensation" replaced by "amount" in Art. 31(2), and inserted Art. 31C. It was passed to undo R.C. Cooper (1970, the Bank Nationalisation case).
• Art. 31C (original) protects laws for Art. 39(b) and (c) only, against Arts. 14, 19 and 31. The 42nd Amendment (1976) extended it to all DPSPs, and Minerva Mills (1980) struck that extension down.
• 29th Amendment (1972) → put the Kerala Land Reforms (Amendment) Acts of 1969 and 1971 in the Ninth Schedule (entries 65–66).
• 26th Amendment (1971) → abolished privy purses.
• Kesavananda Bharati (24 April 1973) → 13 judges, 7:6, CJI S.M. Sikri. It overruled Golaknath (1967). The right to property is not basic structure.
• Trap: Kesavananda upheld the first part of Art. 31C. It struck down only the clause barring court review of the legislature's declaration.
• Trap: the words "basic structure" do not appear anywhere in the Constitution's text. No exhaustive list exists.
• Decisive opinion: Justice H.R. Khanna. Superseded judges: Shelat, Hegde, Grover. New CJI: A.N. Ray (26 April 1973).
• Property Owners Association (2024), a 9-judge bench, held that Art. 31C as upheld in Kesavananda survives.

Mains Points

• Parliamentary sovereignty vs constitutional supremacy:
• The 24th and 25th Amendments claimed unlimited amending power for an elected Parliament with a large majority.
• Kesavananda answered that even the people's representatives cannot destroy the Constitution's core.

• The Constitution is supreme, and the judiciary is its final guardian.

• Counter-majoritarian debate (critics vs defenders):

• 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 shields democracy, federalism and judicial review from temporary majorities. The Emergency (1975–77) and the 42nd Amendment showed why such protection is needed.

• Fundamental rights vs DPSPs:

• Art. 31C let social-justice goals under Art. 39(b)–(c) override Arts. 14 and 19.
• The Court accepted this priority (Kesavananda, Waman Rao) but refused to allow total exclusion of judicial review. It later held the balance between Parts III and IV to be itself a basic feature (Minerva Mills, 1980).

• The 2024 nine-judge ruling keeps this balance alive.

• Judicial independence:

• The supersession of 1973 and the 1975 review bench show executive pressure on the courts after an unwelcome verdict.
• This history fed the later push for collegium-based appointments (see the judiciary note).