Kesavanada Bharti v/s State Of Kerela-1973 by Somesh Vaidya @LexCliq

Chief Justice Sikri and the Supreme Court’s 12-judge bench issued the most significant court judgement in history on April 24, 1973. This decision is important because it determined that the Constitution may be changed but not its fundamental construction. Kesavanada Bharti vs. State of Kerala was heard over 68 days, beginning on October 31, 1972 and ending on March 23, 1973. The case required extensive study, comparative analysis, and academic contributions, which resulted in significant legislative changes.

Important Points:
1. In this case, petitioner Kesavanada Bharti challenged the Kerala Government Land Reforms Legislations enacted in 1970, which placed limitations and attempted to regulate religiously held properties under the state land reforms act.
2. This lawsuit was brought under Article 26, which grants an Indian citizen/trust the authority to administer a religious property without intervention from the government.
3. The decision was issued by a 13-judge panel appointed by the Supreme Court of India, which is also the largest court to hear a case to date.

Background Information and Timeline:

  • Case of Shankari Prasad (1951) and Sajjan Singh (1965)
    In the above decisions, the Supreme Court granted Parliament full authority to alter the Constitution.

In these instances, the court ruled that the word “law” in Article 13 refers to rules or regulations enacted in the exercise of regular legislative authority, rather than changes to the Constitution enacted in the exercise of constituent power under Article 368.

These judgments stated that Parliament has the authority to alter any section of the Constitution, including fundamental rights.

  • Golaknath and Others vs. Punjab State (1976)
    The Supreme Court ruled in this case that Parliament could not alter Fundamental Rights and that the authority to amend the Constitution could only be exercised by a Constituent Assembly.
    Article 13(2) further states:
    The State shall not create any legislation that takes away or limits the rights granted by this Part (i.e. Part-III), and any law enacted in violation of this paragraph shall be invalid to the extent of the violation.

Taking this into account, the court determined that an amendment under Article 368 is “law” within the sense of Article 13 of the Constitution, and therefore any modification that “takes away or abridges” a Fundamental Right granted by Part III is null and invalid.

  • Cases of R.C. Cooper and Madhavrao Scindia (1970)
    The preceding cases contradicted the Supreme Court’s decision in the Golaknath case (1967). Along with it, the administration arbitrarily altered the constitution, giving it unlimited authority to make modifications to any sections of the constitution while shielding them from court review and criticism. Notable examples include:
    The 24th Constitutional (Amendment) Act of 1971 gave Parliament the authority to alter any section of the Constitution.
    The right to property was abolished as a basic right in the 25th Constitutional (Amendment) Act of 1972.

Case Specifics:

  1. Swami H.H Sri.Keswananda Bharti is the senior spiritual leader of the Edneer Mutt (Kerala)
  2. Under two state land reform acts, the Kerala government sought to regulate religiously held property.
  3. In this case, the Kerala government attempted to impose a limitation on Article 26 of the constitution, which grants an Indian citizen or trust the authority to administer religious property.
  4. Kesvananda Bharti was persuaded to bring a petition under Article 26 by Nanabhoy Palkhivala (Senior Advocate).
    Nanabhoy Palkivala filed a P.I.L, which was heard after 68 days (31st October,1972 to 23rd March,1973)


  1. Delivered by a slim 7:6 margin on April 24, 1973.
  2. According to the majority,
    Any article of the Indian Constitution may be changed by Parliament in order to meet the Preamble’s socioeconomic responsibilities to people, but only if such modification does not affect the Constitution’s fundamental framework.
  3. The minority believed:
    They were apprehensive about granting the Parliament limitless amending authority, in their nonconformist view.
  4. The court ruled that the 24th Amendment to the Constitution was fully legitimate.
  5. The second portion of the 25th Constitutional Amendment, however, was determined to be ultra vires in nature.
  6. Removal of Judicial Review under Article 31 C was ruled illegal and void on the grounds that it is a fundamental structure that cannot be removed.
  7. Even after finding that Parliament cannot violate basic rights, the court maintained the elimination of the fundamental right to property modification. Taking this modification into account, the court determined that it would not contradict the fundamental structure of the Constitution and therefore would be legal.

The Basic Structure Doctrine:

  1. The idea of fundamental structural doctrine does not appear in the constitution, but has developed progressively over the years. This concept of the Basic Structure arose in order to maintain the essence of Indian democracy and to defend people’s rights and freedoms.
  2. The Basic Structure Doctrine contributes to the protection and preservation of India’s Constitution’s integrity and spirit.
  3. The fundamental structure concept has served as the foundation for judicial scrutiny of all legislation enacted by Parliament in India.
  4. The list of essential structure components is not comprehensive, but the court recognised parliamentary democracy, fundamental rights, judicial review, and secularism as basic structure elements.
  5. The judiciary is in charge of determining what comprises the fundamental framework.

Consequences of Judgment:

  1. This judgement was a declaration of judicial war against the government. Because the administration disregarded the judiciary’s advice and overruled three judges.
  2. The Forty-second Amendment was challenged in 1974 before the Supreme Court by the proprietors of Minerva Mills (Bangalore), an ailing industrial company nationalised by the government, less than two years after Parliament’s amending powers were restored to near-absolute terms. The fundamental structure concept was maintained in this instance.
  3. The Minerva Mills case, and subsequently the Waman Rao case, both reaffirmed the basic structural concept.

Written by Somesh Vaidya

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