Kesavananda Bharati Vs State of Kerala

Citation: 1973 4 SCC 225

Case Type: Writ Petition

Case No: 135 of 1970

Petitioner: Kesavananda Bharati

Respondents: State of Kerala

Decided On: 24^th April, 1973

Statues Referred: Constitution of India.

Bench: Sikri, S.M. (CJ), Shelat, J.M., Hegde K.S, & Grover, A.N., Ray, A.N. & Reddy, P.J. & Palekar, D.G., Khanna, Hans Raj Mathew, K.K. & Beg, M.H., Dwivedi, S.N. Mukherjea, B.K. Chandrachud, Y.V.

Facts:

Kesavananda Bharati was the chief of a religious sect in Edneer Muttt in the Kasaragod district of Kerala. He had certain pieces of land which were acquired by the Government of Kerala as a consequence of Kerala Land Reforms Act, 1963 for socio-economic purposes.

Afterwhich the Petitioner moved the Apex Court under Article 32 of the Constitution for the enforcement of Article 25,26,14,19(1)(g) and 31. And urged to declare Kerala Land Reform Act as unconstitutional and void.

The Parliament in order to over-rule the Golaknath Judgement passed a series of amendement which includes 24^th amendment in 1971, 25^th and 29^th amendment in 1972.

24^th amendment dealt with the following:

• In order to neutralize the Golaknath Judgement, the Parliament added a new Clause (4) to Article 13 of the Constitution which nullified the provision of Article 13 with regard to Article 368.
• It added a new clause(1) to Article 368 which provided that the Parliament may by way of addition or variation or repeal any provision of the Constitution.
• It tried to omit the choice of the President to give his assent to the bill by making it compulsory for him to give his assent to the bill presented to him.

25^th amendment dealt with the following:

• Article 31(2) of the Constitution was amended whereby it was not compulsory to compensate the lanlords in case the property was acquired by the State Government.
• Article 19(1)(f) was specified as having no link with Article 31(2).
• A new clause 31(c) was added whereby it was provided that Article 14,19,&31 shall not apply to Article 39(b) and (c). And that it shall be immune from Court’s Intervention.

29^th amendment inserted the Kerala Land Reform Act into ninth schedule whereby it was protected from judicial scrutiny.

Issue:

To determine the extent of the amending power of the Constitution under Article 368.

To determine the validity of the 24^th and 25^th Constitutional Amendments.

Contentions by Parties-

Petitioner’s Arguments:

The amendment power of the parliament is limited and not absolute in nature. The Parliament has no right to amend the Constitution in such a way that the basic structure is destroyed. Justice Mudhokar in Sajjan Singh V. State of Rsajasthan propounded that the Parliament cannot amend the basic structure of the Constitution.

The 24^th and 25^th amendment infringes the Fundamental right guaranteed under Article 19(1)(f).

For the enjoyment of Freedom the availability of Fundamental Rights are essential and the Parliament cannot amend the Constitution in such a way that such Fundamental rights are abridged thereby hindering the Freedom.

Respondent’s Arguments:

The Parliament has absolute, unlimited and unfettered power to amend Constitution, the same was contented in Shankri Prasad’ case. The Indian Legal system ensures the Supremacy of the Parliament.

The Parliament can amend or repeal the provision related to Fundamental Rights. Also democracy can be replaced with one party rule.

The Respondent contended that the Preamble of the Constitution has delegated the State with some Socio-economic obligation which needs to be fulfilled by the Parliament without any limitation as to its power.

Judgment:

The Apex Court’s bench comprising of Sikri, S.M. (CJ), Shelat, J.M., Hegde K.S, & Grover, A.N., Ray, A.N. & Reddy, P.J. & Palekar, D.G., Khanna, Hans Raj Mathew, K.K. & Beg, M.H., Dwivedi, S.N. Mukherjea, B.K. Chandrachud, Y.V., held the following:

The Supreme Court by 7:6 majority held that the Parliament under Article 368 had sufficient power to amend any provision of the Constitution to fulfil its socio-economic obligation but with a strict adherence to the condition that the basic structure of the Constitution shall not be effected in any way.

The basic structure of the Constitution includes:

• Supremacy of the Constitution;
• Republican and Democratic form of Government;
• Secular character of the Constitution;
• Separation of power between the legislature, the executive, the judiciary;
• Federal character of the Constitution.

However the list was held as not exhaustive and the majority left it upon the Courts to determine such fundamental elements.

The fundamental rights are “natural rights” and hence inalienable.

The thirteen Judge Bench held that 24^th Constitutional Amendment Act was valid in its entirety.

While 1^st part of 25^th Constitutional Amendment Act was intra vires whereas 2^nd part was ultra vires. Judicial restriction was struck down.

The decision of Golaknath case was over-ruled and it was held that the Parliament cannot be conceded with unfettered power to amend the Constitution. The Parliament can amend all the provision of the Constitution but subject to the condition that such amendment should not effect in anyway the basic structure of the Constitution. (Theory of Basic Structure).

The unanswered question of Golaknath case received an answer by the Apex Court that the word “amend” in the Article 368 has a restrictive meaning. The validity of the Parliament amendment shall always be determined by the Basic Structure Test.

The Court also held that the word “amount” cannot have same connotation as the word “compensation”. But such amount need not be the market value but necessarily close to market value.

Rule of Law:

Article 25 of the Constitution provides to all citizen the freedom of conscience and right to freely practice, profess, and propagate religion. This is subject to restriction by the
State with respect to economic, financial, political, or any secular activity associated with religious practice.

Article 26 expounds the freedom to manage religious affairs subject to public order, morality, and health. Any religious domination shall have following rights:

• To establish and maintain institution for religious purpose.
• To manage its own religious matters.
• To own and acquire movable and immovable property.
• To administer such property in accordance with law.

Article 368 provides:

(1) Notwithstanding anything in this Constitution, Parliament may in the exercise of its constituent power amend by way of addition, variation, or repeal any provision of this Constitution in accordance with the procedure laid dawn in this Article.

(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the bill and thereupon  the Constitution shall stand amended in accordance with the terms of the Bill:

Provided that if such amendment seeks to make any change in-

(a) Article 54, article 55, article 73, article 162 or article 241 or article 246A

(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or

(c) Any of the Lists in the Seventh Schedule, or

(d) The representation of States in Parliament, or

(e) the provisions of this article, the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.

(3) Nothing in Article 13 shall apply to any amendment made under this article.

(4) No amendment of this Constitution made or purporting to have been made under this article [whether before or after the commencement of Section 55 of the

Constitution (42^nd Amendment) Act, 1976 shall be called in question in any Court on any ground.

(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.]

Conclusion:

Social balancing and balance of interest where the two tools by which the Court held that the basic structure of the Constitution can never be amended. The mandate to establish a welfare and egalitarian society is irrevocable. This case is an embellishment of the Golakanath Case as it broadened the protection of the Constitution.

The umbrella of Basic Structure Test is a check upon the arbitrary power of parliament to not to maltreat the noble Constitution. The petitioner lost the case in full but won in part as the judgement served as the guardian of the Indian Democracy and its soul that is the Constitution.

Kaushal Agarwal.