Kesavananda Bharati v State of Kerala (Supreme Court, 1973) — Parliament may amend any provision, but not the basic structure

Article 368 gives Parliament the power to amend the Constitution. Golak Nath (1967) had held that the fundamental rights were beyond that power altogether. Kesavananda Bharati overruled Golak Nath and replaced it with something more durable: every provision can be amended, but the amendment must leave the basic structure of the Constitution standing. It also settled that the Preamble is part of the Constitution. It is cited in this paper for both.

The validity of the Constitution (Twenty-fourth), (Twenty-fifth) and (Twenty-ninth) Amendment Acts was challenged by a writ petition under Article 32. A Bench of thirteen judges — Sikri C.J., Shelat, Hegde, Grover, Ray, Jaganmohan Reddy, Palekar, Khanna, Mathew, Beg, Dwivedi, Mukherjea and Chandrachud JJ. — sat in the Court's original jurisdiction to hear it, and delivered eleven separate opinions. The main question was the nature, extent and scope of Parliament's amending power under the Constitution.

1. Was Golak Nath rightly decided — are the fundamental rights outside the reach of Article 368?
2. Is the Twenty-fourth Amendment, which declared that Parliament may amend any part of the Constitution, valid?
3. Is there any limit on the amending power, and if so what is it?
4. Are the parts of the Twenty-fourth and Twenty-fifth Amendments that excluded judicial review valid?

The views of the majority were these:

1. Golak Nath, "which had held that fundamental rights were beyond the amending powers of Parliament", was overruled.
2. The Constitution (Twenty-fourth Amendment) Act, 1971, "giving power to Parliament to amend any part of the Constitution", was valid.
3. Article 368, as amended, was valid, "but it did not confer power on the Parliament to alter the basic structure or framework of the Constitution." The Court did not spell out exhaustively what the basic structure was; some judges gave examples.
4. The amendment of Article 368(4), which excluded judicial review of a constitutional amendment, was unconstitutional.
5. The amendment of Article 31C that made a law's own declaration conclusive — "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" — was held invalid.

Sikri C.J. gave the illustration that examiners expect. Every provision of the Constitution can be amended "provided in the result the basic foundation and structure of the constitution remains the same", and the basic structure may be said to include: "(1) Supremacy of the Constitution; (2) Republican and Democratic forms of Government; (3) Secular character of the Constitution; (4) Separation of powers between the legislature, the executive and the judiciary; (5) Federal character of the Constitution." That structure, he added, "is built on the basic foundation, i.e. the dignity and freedom of the individual."

The reasoning behind the limit is that "one cannot legally use the Constitution to destroy itself." Under Article 368 the amended Constitution must remain the Constitution; if the basic features are taken away, to that extent the Constitution is abrogated, and "the personality of the Constitution must remain unchanged."

On the Preamble, Sikri C.J. traced it to the Objectives Resolution adopted on 22 January 1947 and read the Constitution in its light. The majority leans to holding that the Preamble is part of the Constitution, is not itself a source of power or of limitations, and plays a significant role in interpretation; Palekar J. held that, being part of the Constitution, it is amendable under Article 368. The consequence the compilations draw is that the Preamble can be amended, but its basic elements cannot be removed, for "the edifice of our constitution is based upon the basic element in the Preamble."

1. Parliament's power under Article 368 extends to every provision of the Constitution, including Part III.
2. That power does not extend to altering the basic structure or framework of the Constitution.
3. A constitutional amendment is itself subject to judicial review; a clause excluding review is void.
4. The Preamble is part of the Constitution and a guide to its interpretation.

The doctrine was applied to strike down amendments in Indira Nehru Gandhi v Raj Narain (1975) and Minerva Mills v Union of India (1980), and later to the tribunal provisions in L. Chandra Kumar (1997); the compilation lists these as the line of authority to read with it.