Kesavananda Bharati Case: Effect and Outcome – Never Ending Controversy

Saji Koduvath, Advocate

Kesavananda Bharati case[1] is one of the most important cases taken up by the Supreme Court of India. Largest ever bench of the Supreme Court (13 judges) considered it. Kesavananda credits the longest ever hearing in the history of the Supreme Court; it took 66 days, spread over to 5 months.

I. Point considered

The 13 judge bench was constituted to consider whether Golak Nath[2] was correctly decided. It had been held in Golak Nath, by an 11 judge bench, that the Parliament could not amend fundamental rights guaranteed in Part III of the Constitution[3] and that the amendments that took away or abridged fundamental rights were invalid. Therefore Kesavananda was eyed as a fight for supremacy between Parliament and Supreme Court.

II. Background

Two Previous decisions had upheld Parliament’s unlimited power.

(1) Sankari Prasad Vs. Union of India (1951):[4] A five-judge-bench of the Supreme Court considered power of the Parliament to amend fundamental rights. Zamindari Abolition Acts (Agrarian Reforms Laws) were enacted in Bihar, UP, MP. and several other States. These were based on the mandate in Art. 37 of the Constitution(read with Art. 39) which stipulated that it was the duty of the State to apply the ‘principles’ (Directive Principles) in Part IV of the Constitution,[5] in making Laws.

Zamindars questioned these Acts in court on the ground that it took away fundamental rights; mainly, Article 19(1)(f) – Right to Property.[6] Patna High Court held the Bihar Act to be unconstitutional. Therefore 1^st Constitution Amendment (of 1951), inter alia, inserted Article 31A & 31B.[7]

This Constitution Amendment Bill had been moved by Pt. Jawaharlal Nehru, PM, himself in the Provincial Parliament which consisted of the same members of the Constituent Assembly. Pt. Nehru said while moving the Bill:

“….. the whole purpose behind the Constitution, which was meant to be a dynamic Constitution leading to a certain goal, step by step, is somewhat hampered and hindered by the static element (Fundamental Rights) being emphasised a little more than the dynamic element (Directive Principles) and we have to find out some way of solving it”.[8]

Zamindars filed petition under Article 32 in the Supreme Court. The argument of the petitioners was that under Art.13(2)[9] no ‘law’ shall be made taking away or abdicating fundamental rights.

The Constitution Bench of the Supreme Court, in Sankari Prasad Vs. Union of India, unanimously upheld the validity of the 1^st Constitutional amendment holding that amendment of Constitution under Art. 368 was independent from, and not controlled by, Art. 13(2).

(2) Sajjan Singh Vs. State of Rajasthan (1965):[10] Another 5-judge-bench considered the power of Parliament to amend fundamental rights. 17^th Constitution Amendment Act (1965) which included certain Agrarian Reform Laws in the 9^th schedule was questioned filing petitions under Article 32, before Supreme Court. The Supreme Court unanimously upheld validity of the Amendment Act, 1965.

It is noteworthy that Mudholkar, J. raised a question:

“Above all, it formulated a solemn and dignified Preamble which appears to be an epitome of the basic features of the Constitution. Can it not be said that these are indicia of the intention of the Constituent Assembly to give a permanency to the basic features of the Constitution?”

III. Impugned Constitution-Amendments came up in Kesavananda

1. 24^th Constitution–Amendment, 1971

It was passed to get over Golak Nath. This Amendment expressly empowered the Parliament to amend any provision including fundamental rights and it made Article 13 inapplicable to Article 368. An interesting thing is that if Golak Nath held the field this Amendment itself was bad.

2. 25^th Amendment, 1971

The 4^th amendment of the Constitution (1955) pertained to Article 31. After this amendment, property acquisition could not have been challenged in Court on the ground of adequacy of compensation. But, in Bank Nationalisation case (1970), the Supreme Court struck down this clause. To surmount this difficulty 25^th Amendment was made (1971). Following are the changes introduced by 25^th Amendment:

Section 2(a) of the Amendment Act: In 1955, by 4th amendment, it was inserted in Article 31: “No such law (Acquisition law) shall be questioned in court on the ground that the ‘compensation’ was not adequate …”. By 25^th amendment in the place of ‘compensation’ the word ‘amount’ was inserted. The purport was to convey the idea that full compensation should be paid.
Section 2(b) of the Amendment Act: It was inserted – Article 19(1)(f) – fundamental right to property – should not be used against Article 31.
Section 3 of the Amendment Act: New Article 31C was inserted. It provided: [first part] – the laws which give effect to Directive Principles will not be void on the allegation that it is inconsistent with certain fundamental rights; and [second part] – such laws (which contain a declaration to that effect) shall not be questioned in court.

3. 26^th Amendment (1971)

It pertains to abolition of privy purses:

4. 29^th amendment (1972)

29^th Amendment of the Constitution put Kerala Land Reforms Amendment Act, 1969 and Kerala Land Reforms Act, 1971, in IX^th schedule.

IV Pre-determined and divided court heard Kesavananda:

It was alleged: Most of the Judges to Kesavananda were committed to one-side or other.

Sikri CJ. and Shelat J. were parties to majority judgment in Golak Nath. In Bank Nationalisation case[11]and in Privy Purse Case[12] — both these decisions were followed Golak Nath — Sikri, Shelat, Hegde and Grover JJ. were parties to majority judgment.

A.N. Ray J. was the single descending judge in Bank Nationalisation case. He was among minority-descending-judges in Privy Purse Case also. 26^th Constitution amendment (came up for consideration in Kesavananda) had been considered in Privy Purse Case also. ‘Fundamental right to property’ was in issue in all these cases.

Government appointed favourable judges to ‘pack the court’ M.H. Beg J. was alleged to be a nominee of Prime Minister Indira Gandhi, and Dwivedi J. was related to then Minister H.N. Bahuguna. It is reported – Dwivedi, J. had told to an audience of lawyers, before his elevation to Supreme Court that he was going to Supreme Court to overrule Golak Nath. The Judges expressed their ‘divided’ views in open court. The Advocates appeared also showed partisan approach towards Judges.

Palkhivala, Advocate for petitioner answered all questions of Chief Justice, Shelat, Hegde and Grover, JJ, and expressed reluctance to the questions of Ray, Mathew, Palekar and Khanna, JJ. It is observed that ‘on several occasions’ he simply ignored or evaded the questions from Dwivedi and Beg, JJ. In the course of argument, Attorney General read out part of a speech of Hegde, J., in Parliament (he was an M.P. earlier): The laws were two generations behind the times and the judges were three generations behind their times.[13]

V Rival contentions:

Nani A Palkhivala led arguments for the petitioners. He emphasized:

Article 368 does not override Article 13(2). The power of the Parliament to amend the Constitution is derived from Articles 245, 246 and 248 of the Constitution and not from Article 368 which only deals with procedure.[14]
The word ‘amendment’ has ‘limited’ meaning (something can be modified but without change of core) and there are ‘inherent and implied limitations’ to abrogate or repeal the Constitution (though not express; inherent in Constitution itself) for altering the essential features or basic structure of Constitution. It was explained by Palkhivala as under: “The principle of inherent and implied limitations means: deducing that is left unsaid from what is said, and perceiving what is implicit in the express provision and scheme of the instrument”.
Palkhivala argued against unlimited amending power elucidating the essential features of our constitution, which included sovereignty, the republican form of government, the federal structure and the fundamental rights (as a whole). They were unchangeable. Founding fathers of the Constitution considered fundamental rights as ‘fundamental’.
The Constitution is supreme. The Parliament is a creature of Constitution. Therefore, the Parliament cannot increase the power conferred to it or destroy essential/basic feature or basic structure of the Constitution. That is, there is implied limitation for the Parliament.
The Preamble [15] of the Constitution limits ‘unlimited power’ of the Parliament.
If Parliament has unlimited power, it can make judiciary and executive completely subordinate or take over their powers.
Ultimate power is vested with ‘We, the people’.
The Constitution gives the Indian citizen freedoms which are to subsist for ever. If Article 31C is valid, Parliament and State Legislatures, and not the Constitution, will determine how much freedom is good for the citizens.

H.M. Seervai (for State of Kerala) and Niren De (Attorney General) stood for unlimited amending power. They stressed the following:

Unless there are no express words, or compelling implication from the existing provisions, for limiting extent of amendment, then there will be no implied limitation.
Government is duty bound to give effect to Directive principles (Part IV of the Constitution) and to enact ‘Laws’ to achieve those objectives.
The acceptance of concepts like ‘implied limitation’, which have no definite contours, would introduce uncertainty and vagueness.
No test can be applied to essential or non-essential feature.
The constituent assembly made no distinction between essential and non-essential features.
None in the constituent assembly said – fundamental rights could not be amended.
The expression ‘an amendment of this Constitution’ in Article 368 meant amendment of each and every provisions of Constitution. Article 368 not only prescribes the procedure but also gives the power of amendment
If Constitution-makers intended that the fundamental rights should override Article 368, it is reasonable to assume that they would have made an express provision to that effect. The Preamble cannot control the unambiguous language of the articles of the Constitution. The Constitution of India is one of the lengthiest Constitutions, if not the lengthiest of the world.
The expression ‘fundamental’ does not lift the fundamental rights above Constitution itself.
There is distinction between Constituent power and legislative power. Article 13(2) pertains to legislative power alone.
The Constitution did not envisage a constituent assembly, in future, to abridge or change fundamental rights.

Palkhivala contended that wide power to amend the Constitution would result ‘in liquidation of Constitution’. Attorney General (Niren De) retorted that ‘unambiguous meaning of amendment’ should not be destroyed ‘to nurse the theory of implied limitation’.

VII What is the final outcome of Kesavananda Bharati

It is a never ending controversy.

13 Judges delivered 11 judgments. (There were two ‘common judgments’.) In the paper titled “View by the Majority” signed by Chief Justice (S.M.Sikri) and other 8 Judges (9 only) contained six points. It stated:

(1) Golak Nath case is overruled.
(2) Article 368 does not enable Parliament to alter the basic structure or frame work of the Constitution.
(3) The Constitution (Twenty-fourth Amendment) Act, 1971 is valid. (It was passed to get over Golek Nath.)
(4) Section 2(a) and 2(b) of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid. (It pertained to ‘right to property’. Art. 31 & 19(1)(f) and Added Art. 31C.)
(5) The first part of Section 3 of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid. (New Article 31C provided: [first part] the laws which give effect to Directive Principles will not be void on the allegation that it is inconsistent with certain fundamental rights.) The second part, namely, “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” is invalid.
(6) The Constitution (29^th Amendment) Act, 1971 is valid. (It put Kerala Acts in the 9^th Schedule.)
The Constitution bench will determine the validity of the Constitution (Twenty-sixth amendment) Act, 1971 in accordance with law. (It related to abolition of privy purses and privileges of princes.)

(1) Judgment at a glance

Unanimous decision

Article 368 is independent from, and not controlled by, Article 13(2).
Golak Nath is overruled.
24^th Constitutional Amendment Act is valid.

Judges accepted argument of Palkhiwala

Following Judges accepted the argument of Palkhiwala and held: (entire) fundamental rights (as such) were essential features of the Constitution and therefore there was implied limitation to abrogate or repeal them (though they could be abridged).

S.M. Sikri, CJ
J.M. Shelat
A.M. Grover
K.S. Hegde
A.K. Mukherjea
P. Jaganmohan Reddi

Judges accepted argument of Government

Following Judges accepted argument of Government in this regard. That is, there was unlimited power of amendment – even furndamental rights also could be repealed.

A.N. Ray
D.G. Palekar
K.K. Mathew
M.H. Beg
S.N. Dwivedi
Y.V. Chandrachud

Khanna, J. took ‘Midway’ [as qualified by Palkhivala in (1974) 4 SCC Journal 57]

Khanna, J. rejected argument on ‘essential features’ and ‘implied limitation’ & proceeded on ‘basic structure doctrine’ alone. He held: power of amendment extends to all Articles including fundamental rights; and only restriction is that the basic structure of the Constitution should not be changed.

(2) No essential features; No implied limitation;

All Sikri (CJ) – led 6 Judges held: Fundamental rights could not be abrogated, (though they could be abridged, by amendment).
CJ, Sikri led judges (except Jaganmohan, J) accepted argument of Adv. Palkhivala that the fundamental rights are essential features of the Constitution and that there was implied limitation to change or amend the fundamental rights.
J. Ray led 6 judges were of the definite opinion that there was no limitation at all to amend the Constitution and therefore fundamental rights also could be ‘amended’ – it could be abrogated or repealed.
Khanna J discarded both ‘essential features’ theory and ‘implied limitation’ theory; and held: fundamental rights also could be ‘added, altered or repealed’.
Therefore, majority (J. Ray led judges + Khanna, J.) decision emerged was that: There was “no implied limitation” to amend the Constitution; that is, even the fundamental rights could be ‘repealed’

(3) Khanna J. ‘Tipped the scales’

Kesavananda Bharati is fundamental right’s case. The crux was whether fundamental rights could be ‘amended’. CJ. Sikri-led six judges stood for limited power of the Parliament to amend the Constitution. They held – fundamental rights could not be abrogated or repealed. Broadly speaking, J. Khanna joined with them for he held: Parliament has no unlimited power to amend the Constitution.

J. Khanna also joined six J. Ray-led judges when he held – fundamental rights also could be repealed. Therefore the majority decision turned out was that fundamental rights are also subject to ‘amendment power’ of the Parliament.

Finally the ‘mid-way’ stance of J. Khanna ‘tipped the scales’ in favour of CJ. Sikri-led-judges which paved way to emerge basic structure doctrine as the ‘essential feature’ of Kesavananda.

(4) Final outcome – ‘Basic Structure Doctrine’: But, No Common Ratio?

Khanna, J. asserted: Art. 368 cannot be “so construed as to embody the death-wish of the Constitution or provide sanction for what may perhaps be called lawful hara-kiri”.
It is clear that Khanna, J. propounded ‘basic structure’ doctrine not in the way that was upheld by Sikri (CJ.) led judges. It was not in the way exactly argued by Palkhivala also. For discarding the ‘implied limitation’ theory and ‘essential features’ theory (these theories were accepted by Sikri-led judges), Khanna, J. accepted the arguments of Seervai and Attorney General in this regard. But, finally, by the ‘View by the Majority’ signed by nine judges, the view (minority?) of Khanna, J. (ie. basic structure doctrine) was emerged as the ‘ratio’ of the case.
Seervai in his treatise ‘Constitutional Law of India’ stated as under, on page 1626: “If the ‘fundamental rights case’ is stood by itself, it was possible to argue that the judgment of 7 Judges [Sikri (CJ) led judges + Khanna, J.] as to the basic structure disclosed no common ratio”.

(5) Even CJ. Sikri-led-judges ‘diluted’ fundamental rights

CJ. Sikri led (6) judges (six only) held definitely that fundamental rights were not liable to be abrogated by amendment; and it is very important to note that even these 6 judges held that the fundamental rights were subject to reasonable abridgement, in the public interest; and the power of ‘amendment’ reached every part and every article of the Constitution, provided the basic foundation or structure remained the same. All these judges (also) varied from Golak Nath which unconditionally held – fundamental rights cannot be varied/ amended.

(6) Did Khanna J. hold every ‘fundamental right’ was part of basic structure?

Justice Khanna held the following in his Judgment: “Subject to the retention of the basic structure or frame work of the Constitution, I have no doubt (i) that the power of amendment is plenary and (ii) would include within itself the power to add, alter or repeal the various articles including those relating to fundamental rights as well as which may be said to relate to essential features”.

Divergent views as to Judgment of Khanna, J.:

Khanna, J. did not hold – fundamental rights were part of basic structure. Seervai stated as under in ‘Constitutional Law of India’ (Page 1625) – “His (Khanna, J.) Judgment was capable of being read to mean that according to him fundamental rights (as such) were not a part of the basic structure of our Constitution and it was so read by Chandrachud, J. in the Election case (Indira Nehru Gandhi Vs. Raj Narayan)”[16]. (The idea conveyed is that, by ‘basic structure’ it brought-in broad aspects like ‘democracy, sovereignty, federalism’ etc. and it is not confined to any specific Part or Article.)
Khanna J. held – fundamental rights might be part of basic structure. Bhagawati, J., in Minerva Mills case[17](mentioned below), pointed out that Khanna, J. did not hold that fundamental rights (as such) were not a part of the basic structure. Bhagawati, J. observed: “The very fact that Khanna, J. proceeded to consider this question (whether right to property, appertained to basic structure) shows beyond doubt that he did not hold that fundamental rights (as such) were not part of the basic structure; but so far as other fundamental rights were concerned, he left the question open”.
Khanna J. held – fundamental rights were part of basic structure. Khanna, J. himself, also, had ‘explained’ in Election Case (Indira Nehru Gandhi Vs. Raj Narayanan) as under:
- “It is difficult to read anything in my judgment to justify the conclusion that fundamental rights (as such) were not part of the basic structure”.

(7) Who won the battle for supremacy?

In Minerva Mills case (AIR 1980 SC 1789), CJ (majority) held:

“Whether or not the summary (signed by nine judges) is legitimate part of Judgment, or is per-incurium for the scholarly reasons cited by authors, it is undeniable that it correctly reflects the majority view”.

The basic structure theory is stated in ‘View by the Majority’ (summary) as under:

“Article 368 does not enable Parliament to alter the basic structure or frame work of the Constitution”.

The upshot of this view by majority was that the Parliament lost the battle between Parliament and court.

It is interesting to consider: Could have the basic structure doctrine been more happily worded in ‘View by Majority’? Propositions are numerous. It is suggested that it would have been better and apt if it was begun in positive form as:

“Article 368 enables the parliament to amend any provision of the Constitution provided the amendment does not destroy the basic structure of the Constitution” (See: (2016)5 SCC 1, 808 (J. Chelameswar).

Both the renditions were not relished by the Government. Why? Because, in either case the court has the ultimate power to decide upon the validity of the enactments of Parliament (that is judicial review) on the touch stone of ‘basic structure’ doctrine.

(8) What was the dictum on ‘right to property’?

The following two majority findings in Kesavananda are important:

The right of the Parliament to amend the Constitution is limited. There are certain essential features or basic structure which cannot be discarded. (Sikri (CJ) led judges + Khanna J)
Fundamental rights are also open to ‘amendment’. (J. Ray led judges + Khanna J)

In the light of the aforesaid two majority findings the following decision of Khanna, J. (single Judge) emerges as a declaration/ dictum (having force of law under Art. 141 of the Constitution) of Kesavananda[18]on the right to property: “Right to property in Art. 19(1)(f) does not form part of the basic structure”(so that it cannot be amended).

(9) Is there a majority finding in Kesavananda on fundamental rights to property or what was the fate of Kerala Act.

Sikri (CJ) – led (6) judges held that the matter whether the Kerala Land Reforms Act violated the fundamental rights to property was a matter to be gone into by the (regular) Constitution Bench. As stated above, they held that the fundamental rights were subject to reasonable abridgement, in the public interest, provided the basic foundation or structure remained the same. Therefore they directed to place the Kerala Land Reforms Act (29^th Amendment) to a Constitution Bench. J. Ray-led (6) judges stood for unlimited power of Parliament. Therefore they had no occasion to probe into this matter.

Khanna, J. alone probed – was ‘right to property’ formed part of basic structure of the Constitution. He held: “Right to property did not form part of basic structure of Constitution”. He, inter alia, stated that (i) if it was felt necessary to abridge the fundamental right to property, for changing the economic structure (by narrowing the gap between the rich and the poor), and (ii) to obtain the objectives contained in the Directive Principles, the Preamble did not stand in the way of amending/limiting right to property.

Khanna J. unambiguously found that right to property did not form part of the basic structure of Constitution; and therefore any constitutional amendment could be made on property (Land) related matters. Therefore, Khanna, J. held (along with six other Judges led by A N Ray, J) that the 29^th amendment of the Constitution was unconditionally valid. In view of Majority (J. Khanna + J. Ray led judges) the Kerala Act was not sent for consideration of a regular Constitution Bench.

(10) Did Khanna J ‘Misapplied’ ‘the law laid down’ by himself?

In Minerva Mills case Bhagavathi, J. doubted the decision of Khanna, J. as to the finding on the unconditional validity of the Kerala Acts for the following reason: Khanna, J. held that the fundamental rights, as a whole, are not part of basic structure. Otherwise he should have referred the Kerala Acts to the regular Constitution Bench (as done by CJ. Sikri -led Judges), to see whether the inclusion of the Kerala Acts in the 9th Schedule was violative of the basic structure or framework of the Constitution. But Khanna J “wrongly held the Constitution (Twenty-ninth Amendment) Act, 1972 to be unconditionally valid”.

Bhagavathi J held:

“It is not customary to quote from the writing of a living author, but departing from that practice which, I believe, is no longer strictly adhered to or followed, I may point out that what I have said above finds support from the comment made by Mr. Seervai in the 2nd Volume of his book on Constitutional Law, where the learned Author says: ‘The conflict between Khanna, J.’s views on the amending power and on the unconditional validity of the Twenty-ninth Amendment is resolved by saying that he laid down the scope of amending power correctly, but misapplied that law in holding Article 31-B and Schedule 9 unconditionally valid’. I entirely agree with this perceptive remark of the learned Author”.

(11) Did Apex Court Incorrectly held – Constitution (24^th Amendment) Act, 1971 is valid?

As shown above, in Kesavananda Bharati there was unanimous decision on the following:

Article 368 is independent from, and not controlled by, Article 13(2).
Golak Nath is overruled.
The Constitution (Twenty-fourth Amendment) Act, 1971 is valid.

The 24^th Constitutional Amendment Act had been passed to get over IC Golak Nath Vs. State of Punjab: AIR 1967 SC 1643. (In Golak Nath, it was held by an 11 judge bench that the Parliament could not amend fundamental rights guaranteed in Part III of the Constitution and that the amendments that took away or abridged fundamental rights were invalid.) The Golak Nath decision was on the basis of Article 13 – which laid down that the ‘Laws inconsistent with or in derogation of the fundamental rights’ are void. But, the Twenty-fourth Amendment Act, mainly, legislated:

“(4) Nothing in article 13 shall apply to any amendment made under this article”.

(i) The law declared by the Apex Court being the law of land, under Article 141 of the Constitution (See also: Bharvagi Constructions Vs. Kothakapu Muthyam Reddy: AIR 2017 SC 4428) and (ii) it being not open to the legislature to simply brush aside findings of a court of law by an Amendment Act, under the Constitutional principles; instead of upholding Twenty-fourth Amendment Act (after overruling Golak Nath) the Supreme Court should have either annulled the Amendment, or observed that this amendment was redundant in view of the overruling. It is legitimate to say that the course open to the Government was to approach the Supreme Court, again (Note: AN Ray, CJ constituted a 13 judge bench to reconsider Kesavananda on the presumed premises that the Governments sought for a ‘reconsideration’, as shown below).

VI Attempt of Government and the Chief Justice, A.N.Ray, to overcome Kesavananda

The Judges (Khanna, Mathew and Chandrachud, JJ.) applied the ‘basic structure doctrine’ when they considered the Election case of Indira Gandhi. The importance is that it could have been ‘argued’: there was ‘no common ratio’, as observed by H.M. Seervai. (But, even the two pro-government judges in Kesavananda also applied this doctrine)

On April 25, 1973 Sikri, CJ retired. The Government appointed A.N. Ray as Chief Justice overlooking seniority of Shelat, Hegde and Grover, JJ., whereby these Judges resigned.
On September 1, 1974, the Attorney General, Niren De, made an oral application to Chief justice for early hearing of certain petitions wherein violation of basic structure of the Constitution was alleged.
On June 25, 1975, Emergency was declared after Smt. Indira Gandhi lost the election case at Allahabad High Court.
On October 20, 1975, Chief Justice issued an order that a Bench of 13 Judges was constituted to hear the arguments, on basic structure doctrine and the validity of decision in Bank Nationalization case, from November 10, 1975.
On November 7, 1975 the election appeal of Indira Gandhi was allowed by the Supreme Court.
On November 10, 1975, the review matter of Kesavananda was taken up. Niren De, Attorney General submitted that Kesavananda impeded the Government’s committal to bring about large measures for socio-economic uplift of the people.

Palkhivala argued for 2 days on preliminary objection. [One of the main points placed by Palkhivala, and pondered by the judges (including pro-government judges in Kesavananda), was whether any legislation was ‘impeded’ by the declaration of the ‘basic-structure’ doctrine in Kesavananda. The Attorney General could not point out – any legislation was impeded.] (See ‘Neither Roses Nor Thornes’ by Khanna Page: 74, Seervai: Page 2657 and ‘The Kesavananda Bharati Case’ by Anthiarujina, Page 99).

The Chief Justice dissolved the Bench, abruptly, after two-days-hearing. Thus, the dissolution of specially constituted bench by Ray, CJ resulted in changing the ‘weak & wooden-framed’ basic structure doctrine into a ‘steel’ one, indirectly.

VII. Reasons for abrupt dissolution of Special Bench

It is obvious that the fellow Judges of Ray, CJ in the specially constituted 13-judge-bench (including those who were in minority in Kesavananda) did not favour reconsideration or review of Kesavananda.

It appears that it was for the following reason: That these judges were of the opinion that there would not have been any impediment to enact any so-called ‘progressive or socio-economic-oriented legislations’, such as Kerala Land Reforms Act, in future (on the allegation that such legislations violated fundamental rights), since:

Golak Nath was overruled;
The theory of ‘essential feature’ (whereby no fundamental right could be amended) propounded by Palkhivala was discarded;
‘Basic structure doctrine’ (alone) became ‘view of the majority’ in Kesavananda;
Even Sikri (CJ) – led 6 judges held that the fundamental rights were subject to ‘reasonable abridgement’ in public interest; and
Khanna, J. probed into the merits of argument – whether property right was not part of basic structure ; and his ‘findings’ were widely acclaimed.

Seervai stated (on Page 1628) – “This sequence of events would suggest that Ray, CJ realised, before 10^th November 1975, that his brother-judges in the Election case were not likely to depart from the theory of basic structure; and it would also suggest that the hearing before the bench of 13 judges satisfied him that the doctrine of the basic structure would not be reconsidered by the bench”.

VIII. Minerva Mills Case: Government-attempt to Supersede Kesavananda Led to this Case

During emergency the 42^nd Constitution Amendment Act, 1976 was passed. Major changes were the following: Article 31C was modified whereby the amendment deprived the fundamental rights of their supremacy and made them subordinate to directive principles of State policy. In other words, the primacy was given to directive principles over fundamental rights in case of conflict between them.

Art. 368 was amended agaiin – Clause 4 & 5 were added: (a) Clause 4 –No amendment, before or after 42^nd Amendment, “shall be called in question in any court on any ground”. (b) Clause 5 –“There shall be no limitation whatever” on Parliament’s amending power.

All these amendments were challenged before the Supreme Court, in Minerva Mills Vs. Union of India (AIR 1980 SC 1789). Palkhivala resigned the office as Ambassador to United States and came down to argue this case. The amendment to Art. 31C was struck down by the majority (Chandrachud (CJ), A.C. Gupta, N.L. Untwalia and P.S. Kailasam, JJ) as the same was found to be destructive to the basic structure of the Constitution.

Bhagawati, J. (minority) upheld Art. 31C which, according to him, did not destroy the basic structure of Constitution. Bhagawati, J. stated:

“Lastly I must consider the argument of Mr. Palkhivala that almost any and every law would be within the protection of the amended Article 31C, because it would be referable to some Directive Principles or the other. I think this is an argument of despair. Obviously, the objection set out in these directive principles being specific and limited, ……… it is only a limited number of laws which would have real and substantive connection with one or the other of the specific objectives contained in these directive principles ……… I cannot therefore subscribe to the proposition that if the amendment in Article 31C were held valid, it would have the effect of protecting every possible legislation under the sun; and that would, in effect and substance, wipe out Article 14 and 19 from the Constitution ……”

Chandrachud, CJ observed (for majority) as under:

“……… Art.31C has removed two sides of that golden triangle (Article 14, 19 and 21) which affords to the people of this country an assurance that the promise held forth by the Preamble (….to secure justice, liberty, equality & fraternity) will be performed ……, without emasculation of the rights to liberty and equality which alone can preserve the dignity of the individual.”

It is interesting to remember: Chandrachud, J. was a ‘pro-government judge’ in Kesavananda.

Clause 4 & 5 of Article 368 were unanimously struck down by the Supreme Court it being found invalid and ultravires for the following (main) reasons (as stated by Palkhivala in ‘We, the People’):

Donee of a limited power cannot, by the exercise of that very power, convert the limited power into an unlimited one. It amounts to overthrow the supremacy of the Constitution.
The limited amending power is itself a basic feature of the Constitution.
Ouster of the court’s jurisdiction destroys a basic feature. It destroys balance of power between the legislature and judiciary.

IX. How the Conflicts on ‘Right to Property’ laid to ‘Rest in Peace’:

The right to property – Article 19(1)(f) and 31 – was deleted by 44^th Constitution Amendment Act, 1978 and Article 300A was inserted. It stated:

“No person shall be deprived of his property save by authority of law”.

Palkhivala stated in ‘We, the people’ Page 201 –

“I am wholly in favour of removing the small remnant of the right to property from the chapter on Fundamental Rights so as to put an end to the perpetual and deliberate distortion of the issue of the basic human freedoms by snide references to the right to property”.

X. I.R. Coelho Vs. State of TN: AIR 2007 SC 861

Despite Kesavananda Bharati decision following questions remained as potential:

Whether 9^th Schedule was valid. Could laws be put in 9^th schedule.
Did a law stand immunised from judicial review for it was put in 9^th schedule.
Could the Parliament itself declare a law as valid by inserting it in the 9^th Schedule.

The nature and character of protection given by the 9^th Schedule & Art. 31B had been considered by the Supreme Court in various cases subsequent to Kesavananda Bharati, including Waman Rao Vs. Union of India (AIR 1981 SC 271).

A 9-Judge Bench was constituted in I.R. Coelho – for re-considering Waman Rao to reconcile the ‘apparent inconsistencies’ in that decision, and to determine – (i) whether an Act once found by a Constitutional court to be violative of Ar. 14, 19 or 31 could be protected by including the same in the 9^th Schedule; and (ii) whether the Constitution amendment (of putting an Act in the 9^th schedule) itself destroys the basic structure of the Constitution could be struck down.

I.R. Coelho found:

9th Schedule is valid. Laws can be put in 9^th schedule.
But, no law is not immunised – for it is put in 9^th schedule – from judicial review.
Parliament itself cannot declare a law valid by inserting such laws in the 9th Schedule.
Laws that that are incorporated in the Ninth Schedule after 24th April, 1973 (that is, after Kesavananda Bharati decision), shall be open to challenge on the ground that it destroys or damages the basic structure of the Constitution.

The reference to the 9-Judge Bench was finally answered by a ‘twin test’.

Twin Test [19]

First, whether there is violation of Fundamental Rights; then (second) whether ‘in effect and substance, destroys the basic structure’.

The first test (whether violation of Fundamental Rights) takes in following points:

All fundamental rights do not constitute the basic structure. It includes only ‘some of the fundamental rights.’[20]
If only the ‘essence of any fundamental right or any other part of the basic structure is infringed’, [21] then only an Act put in the 9^th schedule will be rendered unconstitutional as violative of basic structure of the Constitution.
Inquiry on essential features of the Constitution as reflected in Ar. 21, r/w 14, 19 is necessary[22] to render an Act unconstitutional.

Infirmities pointed out by those who criticise this Judgment:

The aforesaid 3 points are not harmonizing (but apparently conflicting) each other.
The twin test in para 147 is also ambiguous. It turned more confusing when it reflected in the decreetal para, 150 (iii), as it was not made clear – what was the ‘basic or essential features of the Constitution as reflected in Ar. 21 r/w Ar. 14 and Ar. 19 and the principles underlining them’. It is not clear, whether it widened the scope of Basic Structure Doctrine or narrowed it (from earlier decisions).
It is not clear: which are the fundamental rights that are accepted as basic structure.
It is also not made clear: whether the aforesaid fundamental rights as such, or the ‘essence’ of the fundamental rights, formed ‘basic structure’.

Significance of this Judgment according to those who support it.

This Judgment expressly declared: Certain Fundamental Rights (as such) are part of basic structure.[23]
It clarified and enlarged the scope of ‘basic structure’: for it canvassed ‘basic or essential features of the Constitution as reflected in[24] Ar. 21 r/w Ar. 14, Ar. 19 and the principles underlining them’. It left open a window so as to bring-in (future) social-reform-laws in the 9th schedule if and when it becomes the ‘need of the hour’.
The twin test[25] (First, whether violation of Fundamental Rights; then (second) whether ‘in effect and substance, destroys the basic structure’) resolved the ambiguity/disputes in saving an Act putting in the 9th schedule after a finding by a Court that it is unconstitutional.

X. Dietrich Conrad on ‘Implied Limitations of the Amending Power’

German lawyer, Dietrich Conrad delivered a speech at the Law Faculty of the Banaras Hindu University in 1965 on ‘Implied Limitations of the Amending Power’. In the speech he said as under:

“Perhaps the position of the Supreme Court is influenced by the fact that it has not so far been confronted with any extreme type of constitutional amendments. It is the duty of the jurist, though, to anticipate extreme cases of conflict, and sometimes only extreme tests reveal the true nature of a legal concept.”

Thereafter he wrote an article in the Indian Yearbook of International Affairs, in 1970, after the decision in Golak Nath v. State of Punjab, ‘Limitations of Amendment Procedures and the Constituent Power’. This article was referred to in this judgement.

(It is pointed out that the amendment made to save the election case of the then Prime Minister Indira Gandhi was an ‘extreme amendment’ stated by Conrad.)

XI. ‘Majority cannot alter Fundamental Principles of Foundation’

The fundamental principles upon which a trust is founded cannot be varied. It is also not open for the majority of the members of an association to alter the fundamental principles upon which it is founded, unless such a power is specifically reserved. These principles are found in Prasanna Venkitesa Rao Vs. Srinivasa Rao, AIR 1931 Mad. 12 [Relying on: Milligan Vs. Mitchel, 40 ER 852, Attorney General Vs. Anderson and Free Church of England Vs. Overtoun, (1904) AC 515].

XII Conclusion:

F.S. Nariman stated (‘Before Memory Fades …’- Page 126): “It (basic structure theory) was evolved from great silences in our Constitution”. No doubt, these silences make the Constitution dynamic, vibrant and grow as an organic giant. But, what about ‘silences’ and ‘misapplications’ in judgments …?

XI. Amendments and Cases: in a nutshell

Year	Article	Amendment	Case, Year and Decision
1951	31A 31B	Acquisition law: not void for abridging F/r 9^th Schedule – notwithstanding Judgmt, Law continue in force.	Sankari Prasad (1952). Upheld amendment. Sajjan Singh (1965) Upheld amendment. Golakh Nath (1967) Struck down amendments (overruled Sankari Prd & Sajjan Singh).
1971	31C 13 (4) & 368	Laws give effect to D/p. Not be void for inconsistent with F/r. Such laws shall not be questioned in court. Amended to overcome Golek Nath	Kesav. Bharati (1973). Upheld the 1^stpart (Laws give effect to D/p. Not be void for inconsistent with F/r) and Struck down 2^nd part (Such laws shall not be questioned in court). Upheld Amended to overcome Golek Nath.
1975	329A (4),(5)	Prime Minister, Speaker not amenable to Election Law.	Indira Gandhi (1975). Struck down Amendment.
1976	31C 368 (4) (5)	Primacy given to D/p when conflict. Shall not be questioned in court. No limitation	M. Mills (1980). (i) Struck down by majority – Primacy given to D/p when conflict. (ii) Struck down unanimously – Shall not be questioned in court & No limitation.
	31A, B, C	….	Bhim Singhji & Waman Rao (1980). Urban Land Ceiling Act. S.27(1) struck down. Held that 9^th Schedule would not hold full protection after 1973 April.
…	-do-	…	I.R. Coelho (2007). Twin test. (1) Whether violation of F/r (2) Whether destroys B/s

[1] His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kerala: AIR 1973 SC 1461. This case is known is as ‘Fundamental Rights Case’.

[2] IC Golak Nath Vs. State of Punjab: AIR 1967 SC 1643

[3] F.S. Nariman stated in ‘Before Memory Fades ….’ page 124, as under: “Subba Rao, CJ managed to forge (with his qualities of judicial statesmanship) a narrow majority (6:5) for the view that none of the fundamental rights were amenable to the amending power (Article 368) in the Constitution …” (F.S. Nariman assisted N.A. Palkhivala who argued for petitioner in Golak Nath)

[4] AIR 1951 SC 458

[5] Part IV contains Directive Principles of State Policy

[6] It was repealed and a new Article was inserted – Art. 300A

[7] Article 31A stipulated that no acquisition law should be void for it takes away or abridges fundamental rights. Article 31B introduced 9^th schedule and stated that the Acts specified in that schedule should not be void for it took away or abridged fundamental rights.

[8] Provincial Parliament Debates: May 16, 1951

[9] Article 13(2) lays down: State shall not make any law which takes away or abridges the rights conferred by fundamental rights and any law made in contravention of this clause is void. (Art. 12: State includes Parliament.) Note: Article 13(2) refers to ‘laws’ and not Constitutional amendments

[10] AIR 1965 SC 845; Golak Nath has held that the 1^st Amendment was invalid. It (prospectively) overruled both Sankari Prasad & Sajjan Singh.

[11] Rustom Cawasji Cooper Vs. Union of India – AIR 1970 SC 564

[12] Madhava Rao Sindhya Vs. Union of India – AIR 1971 SC 530

[13] Kesavananda Bharathi Case: TR Andhiarujina: Page 16.

[14] Sankari Prasad and Sajjan Singh held that Article 368 was independent from Article 13(2). But Golak Nath held: “Law in Article 13(2) would cover Constitutional amendments in Article 368 also.

[15] The Preamble to the Constitution, as amended by the Constitution (Forty-second Amendment) Act, 1976, proclaims:

“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity;

and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

In our Constituent Assembly this twenty-sixth day of November, 1949, do hereby adopt, enact and give to ourselves this constitution.”

[16] AIR 1975 SC 2299

[17] AIR 1980 SC 1789

[18] (Art. 141: Law declared by SC binds on all courts)

Palkhivala, in the written propositions placed before the 13-judge-review-bench (detailed below), begun as under: “At the outset it is important to note what are the true effects of Kesavananda’s case. In that case it has been expressly held that the right to property is not a part of the basic structure of the Constitution and therefore any amendment can be made to the Constitution in total disregard of the right to property”. (We, the people – Page 183)

[19] Para 147

[20] Para 114 (1^st part): Since the basic structure of the Constitution includes some of the fundamental rights, any law granted 9th schedule protection deserves to be tested against these principles.

Para 150 (iii) (2^nd part): Even though an act is put in the 9th schedule by a constitutional amendment its provisions would be open to attack, on the ground that they destroy or damage the basic structure, if the fundamental right or rights taken away or abrogated pertains or pertain to the basic structure.

[21] Para 114 (2^nd part): If the law infringes the essence of any of the fundamental rights or any other aspect of basic structure then it will be struck down.

[22] Para 150(iii): All amendments ……….. shall have to be tested on the touchstone of the basic or essential features of the Constitution as reflected in Ar. 21 r/w Ar. 14 and Ar. 19 and the principles underlining them. (1^st part)

[23] The other views are: (i) not a ‘mere violation’ of a fundamental right, but a ‘shocking, unconscionable or unscrupulous’ violation invites challenge on the doctrine of basic structure (See Judgment of Krishna Iyer, J. in Waman Rao); (ii) violation should affect the ‘core’ of the fundamental right; and (iii) basic structure doctrine pertains to ‘concept’ and not the ‘language’ in Part III of the Constitution.

[24] In Waman Rao v. Union of India (AIR 1981 SC 271), considering the earlier decision in Keshavananda Bharti v. State of Kerala (AIR 1973 SC 1461), it is held: “2. In Keshavananda Bharati, decided on April 24, 1973 it was held by the majority that Parliament has no power to amend the Constitution so as to damage and destroy its basic or essential features or its Basic Structure. ….. (I)f any Act or Regulation included in the 9th Schedule by a constitutional amendment made after April 24. 1973 is saved by Article 31C as it stood prior to its amendment by the 42nd Amendment, the challenge to the validity of the relevant Constitutional Amendment by which that Act or Regulation is put in the 9th Schedule, on the ground that the Amendment damages or destroys a basic or essential feature of the Constitution or its Basic Structure as reflected in Articles 14, 19 or 31, will become otiose. “

[25] Para 147

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Kesavananda Bharati Case: Effect and Outcome – Never Ending Controversy

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