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KESAVANANDA

BHARATI CASE
(AIR 1973 SC 1461)
Landmark judgement (precedent)

13 judges bench

Gave birth to the concept of BASIC STRUCTURE DOCTRINE

Paved the way for struggle between parliament and judiciary

Fight for absolute power in regards to amendment power of any provision of


the constitution by virtue of Article 368.
History of amending power of
parliament
Shankari Prasad v. UOI (AIR 1951 SC 458)
Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845)
IC Golaknath v. St. Of Punjab (AIR 1967 SC 1643)
Shankari Prasad v. UOI (AIR 1951 SC 458)

1st amendment challenged (Art 31 A and 31 B)


Question on difference between ordinary legislative
power and amending constituent power.
Held that Art 13 (2) did not affect amendments made
under Art. 368.
Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845)

17th Amendment was challenged


Held that amendment is valid
Parliament can amend anything in the constitution
according to procedure laid down in Art.368.
IC Golaknath v. St. Of Punjab (AIR 1967 SC 1643)

1st Amendment, 4th and 17th amendment was challenged.


S.C adopted a doctrine of prospective over ruling under
which three constitutional amendment continued to be
valid.
Held that parliament had no power to amend provision of
part III.
S.C also interpreted that amending power under Art. 368
is same as legislative power under Art 248, entry 97 of 7th
schedule (Union list). It is therefore a law for the
purpose of Art. 13 (2).
Brief Facts:
In 1970 Swami HH Sri Kesavananda Bharati, Senior head of
a Hindu Mutt situated in Edneer, a village in District of
Kerala, challenged the Kerala government's attempts, under
two state land reform acts, to impose restrictions on the
management of its property.
Swami filled his petition under Article 26, concerning the
right to manage religiously owned property without
government interference.
Major amendments to the Constitution (the 24th, 25th and
29th) had been enacted by Indira Gandhis government
through Parliament. All these amendments were under
challenge in Kesavananda Bharati case.
ISSUES
Whether any limitation or restriction could be placed on the
amending power of parliament ?
Validity of 24th 25th and 29th amendment of C.O.I ?
Whether law word includes amendment ?
Can parliament destroy and frame new constitution ?
Is there any difference between ordinary legislative power and
constituent power ?
What exactly is basic structure doctrine ?
Whether judicial review could be done away with ?
Amendments
Many amendment brought about by parliament to
override the controversial judgements standing in the way
of parliament and to uphold their power to amend.
24th amendment
25th amendment
29th amendment
What is 24th Amendment
passed in the year 1971
Objective- to remove hindrance and difficulties created by the decision
of S.C in the year 1967 in Golaknath Case.
By way of amendment, parliament introduced the following provisions:
Art 13(4)
Amending the heading of Art 368
Art 368 (1)
President obligation to give assent to bill amending the constitution
Art 368 (3)
What is 25th Amendment
Passed in the year 1972.
Art 31 Clause 2 amended
Clause (2B) inserted in Art.31 after clause (2A)
Art. 31 C inserted by way of this amendment
What is 29th Amendment
Kerala Govt. faced practical difficulties and to overcome
them amended Kerala land Reform Act, 1963 through:
Kerala land Reform (Amendment) Act, 1969, and
Kerala land Reform (Amendment) Act, 1971
Certain provision of the principal act, 1963 as amended
were challenged in H.C of Kerala and S.C. This posed as a
threat to implementation of land reforms in Kerala.
29th Amendment passed in the year 1972.
29th Amendment - include these amendment acts in 9th
schedule to the constitution.
Protection under Article 31 B.
Art. 31 B & Ninth Schedule
Ninth schedule and Art. 31 B complement each other.
Art 31 B came into effect by way of 1 st amendment act, 1951
Art 31 B talks about protection given to all acts and regulations
mentioned in 9th schedule nor any of the provision thereof shall
be declared void, or ever have to become void on grounds that
such act and regulation takes away or violate the F.R
All acts in ninth schedule are provided immunity from judicial
review, overriding judgements, decree and order to the contrary,
if any.
Kesavananda Bharti case (13 JB)
24th, 25th and 29th amendment challenged.
Amendments held valid.
Over- ruled IC Golaknath v. State of Punjab (11 JB)
Held that though parliament had wide powers to amend, such powers
were curtailed by maintaining the basic spirit of constitution.
The parliament could not snatch certain basic principles enshrined in the
constitution.
No absolute power S.C gave a new concept of Basic structure doctrine.
Parliament could take away or amend F.R as long as it did not violate THE
BASIC STRUCTURE.
What is Basic Structure
Indian judicial principle Doctrine?
The basic features of the Constitution have not been explicitly defined by
the Judiciary.
Basic feature is determined by the Court in each case that comes before it.
The doctrine thus forms the basis of a limited power of the Supreme Court
to review and strike down constitutional amendments enacted by the
Parliament which conflict with or seek to alter this "basic structure" of the
Constitution.
Basic structure doctrine is referred as the basic spirit of constitution. It
could find its roots in the preamble.
Preamble is a 85 words summary of constitution. It is the basic essence of
constitution. The objective of constitution lies in the preamble.
Balance between F.R and DPSP
Judicial Review also part of basic structure.
Article 14 and 21 is also part of basic structure.
Indria Nehru Gandhi v. Raj Narian
(AIR 1975 SC 2299)
39th amendment was challenged (Art 329 A clause 4)
The amendment was made to the jurisdiction of all courts
including S.C over disputes related to elections involving
the prime minister of India.
Held that it is beyond the amending power of the
parliament as it destroyed the basic structure of the
constitution.
Judicial review part of basic structure upheld the
doctrine given in Kesavananda Bharti case.
Basic Structure By J. YV Chandrachud
in Indra Nehru Gandhi Case
Sovereign democratic republic states
Equality of status and opportunity of an individuals
Secularism and freedom of conscience and religion
Rule of law
Minerva Mills v. UOI
(AIR 1980 SC 1789)
Validity of 42nd amendment was challenged.
S.C struck down clauses 4 & 5 of Art. 368
It was ruled by the court that a limited amending power
itself is a basic feature of constitution of India.
Art.31 C - 42nd amendment declared unconstitutional
which extended the 25th amendment that is it replaced
Art 39 b and c by all DPSP.
Procedure describe by Art. 368 (2) is mandatory.
Conclusion

Dictatorship v. Democracy.
Restriction placed on power to amend, otherwise absolute
power would lead to dictatorship. Essential to uphold
democratic values. Nothing can take away the power of
judicial review by courts.
Parliament taking advantage of 9th schedule. Placing all
laws that violate the basic structure doctrine.

The landmark judgement of Supreme Court in I.R.Coelho


which was delivered on January 11 2007 it is now well
settled principle that any law placed under Ninth
Schedule after April 23 1973 are subject to scrutiny of
Court's if they violated fundamental rights and thus put
the check on the misuse of the provision of the Ninth
Schedule by the legislative.