Comment: Kesavananda Bharathi Case. (1996, 20 Marks)
Kesavananda Bharati v. State of Kerala, decided on 24 April 1973 by the largest bench the Supreme Court has ever sat, settled the question dividing Parliament and the Court since 1951: is the amending power unlimited? By 7:6 the Court held that Parliament may amend every provision but may not destroy the basic structure, turning a land-reform dispute into the charter of Indian constitutionalism.
The Dispute
- Swami Kesavananda Bharati, head of the Edneer Mutt in Kasaragod, challenged the Kerala Land Reforms Act 1963, as amended in 1969 and 1971, affecting the mutt’s land.
- Meanwhile Parliament reversed Golaknath (1967), which had put fundamental rights beyond amendment:
- the 24th Amendment (1971) excluded amendments from Article 13 and recast Article 368 as a substantive power;
- the 25th Amendment (1971) substituted “amount” for “compensation” and inserted Article 31C, shielding laws for Articles 39(b)–(c) and barring courts from questioning their declared purpose;
- the 29th Amendment (1972) put the Kerala Acts in the Ninth Schedule.
- The petition widened into a challenge to all three, and so to the reach of Article 368.
The Bench and the Holding
Thirteen judges under Chief Justice S. M. Sikri heard Nani Palkhivala for the petitioner and H. M. Seervai for Kerala over 68 days, and delivered eleven opinions.
- Golaknath overruled: an amendment is not “law” under Article 13; Part III can be amended.
- Implied limit: “amendment” does not extend to altering the Constitution’s basic structure or framework.
- The 24th and 29th Amendments and the first limb of Article 31C were upheld; its second limb, ousting judicial scrutiny of the declaration, fell.
- The Preamble was held part of the Constitution.
H. R. Khanna’s Swing Opinion
Six judges read in limits protecting fundamental rights; six found none. H. R. Khanna took a third path: rights, property included, were amendable, but an amendment must leave the old Constitution standing. His vote made the majority; in Indira Gandhi v. Raj Narain (1975) he clarified that only the right to property lay outside the basic structure. A summary, the “View by the Majority”, bore nine signatures; Justices A. N. Ray, K. K. Mathew, M. H. Beg and S. N. Dwivedi declined to sign, and its authority remains disputed.
| Opinion | Basic features named |
|---|---|
| Sikri CJ | Supremacy of the Constitution; republican, democratic government; secularism; separation of powers; federalism |
| J. M. Shelat and A. N. Grover JJ | Adds welfare-state mandate; unity and integrity |
| K. S. Hegde and A. K. Mukherjea JJ | Sovereignty; democratic polity; essential individual freedoms |
| P. Jaganmohan Reddy J | Preamble’s sovereign democratic republic, justice, liberty, equality |
Aftermath
- Within two days A. N. Ray, a dissenter, became Chief Justice over Shelat, Hegde and Grover, all in the majority; they resigned.
- In November 1975 Ray convened a bench to review the case and dissolved it after two days.
- The 42nd Amendment (1976) added Articles 368(4)–(5) to bar review; Minerva Mills (1980) struck them down, making limited amending power itself basic.
Assessment
Critics call the doctrine counter-majoritarian, resting on a one-vote margin and an open list; T. R. Andhyarujina‘s The Kesavananda Bharati Case (2011) shows how fractured the bench was. Yet in 1975–77 it was the only limit left on a compliant Parliament. Jagdeep Dhankhar, then Vice-President (he resigned in July 2025), called it a wrong precedent in January 2023; Chief Justice D. Y. Chandrachud replied that the basic structure guides interpreters like a north star.
Conclusion
Kesavananda did not freeze the Constitution; it separated amendment from replacement. In Dr. Balram Singh (2024) the Court upheld the 42nd Amendment’s insertion of “socialist” and “secular” within that framework: the Constitution stays amendable, but not into something else.