“There were ‘grave consequences’ to treating the constitution as ‘as ordinary law to be changed at the will of the party in power’. If governments always could be trusted, there would have been no need for Fundamental Right.”
While reaching at the end of arguments in the Kesavananda Bharati case, the legendary Indian jurist, and one of the craftsmen whose names deserve to be mentioned for outstanding contribution, Senior Advocate Mr. Nani Ardeshir Palkhivala representing the petitioner His Holiness Kesavananda Bharati quoted these views expressed by eminent jurist H.M Seervai before the Supreme Court to support his arguments. These views were also well accepted by the Court.
Since the enforcement of the Indian Constitution in the year 1950, the Supreme Court has come across various ups and downs. Though initially, it has played the role of the conservative court, in due course of time, it has also set many instances of playing the vital role in dispensing justice through judicial activism delivering various verdicts which always play the vital role in strengthening the base Constitutional democracy in India.
We know that the Supreme Court, being ‘Sentinel on the qui vive’ is the supreme protector of the ‘Fundamental Rights’ of citizens. It is duty-bound to safeguard the ‘Fundamental Rights’ of the citizens. On the other hand, it has also the duty to ensure the Constitutional validity of the laws, passed by the legislature exercising the power of ‘Judicial Review’ under Article 13 of the Constitution of India. Supreme Court has the power to invalidate any law which violates any part of the Constitution. Likewise, if the Government makes any law that takes away any or all of the Fundamental Rights guaranteed under Part- III of the Constitution, the Supreme Court is duty-bound to make the law unconstitutional upholding the supremacy of the Fundamental Rights of citizens.
Among those landmark cases, Kesavananda Bharati vs. State of Kerala which established the ‘Basic Structure Doctrine’ deserves special mention. The main issue which was involved with this case was whether the Fundamental Rights contained in Part III of the Indian Constitution were amenable or not. The Supreme Court established that it is the mandate of the State to enact or amend every law or bring any Constitutional Amendment in congruence with the ‘Basic Structure of the Constitution’ also safeguarding the ‘Fundamental Rights’ of the citizens.
‘Doctrine of Basic Structure’ is a common law doctrine that is well recognized in India, Bangladesh, Malaysia, Pakistan, and Uganda. According to this doctrine, the Constitution of a sovereign state has some basic features or framework which cannot be amended or abrogated by the legislature at any time. In India, this doctrine was formulated by the Supreme Court through a series of cases in the 1950s and 1970s that formed the background of the establishment of ‘Basic Structure Doctrine’ and culminated in the case Kesavananda Bharati vs. State of Kerala in 1973. The Kesavananda Bharati case is also known as the ‘Fundamental Rights Case’ as well as the ‘Basic Structure Doctrine’ case because in this case, this doctrine was first adopted by the Supreme Court.
Under Article 368 of the Indian Constitution, the legislature has the power to amend any parts or Articles of the Constitution of India including the ‘Fundamental Rights’, but it cannot amend or erase anything in such a way that changes the ‘Basic Structure or the Framework of the Constitution’. In this case, the Supreme Court explicitly defined some characteristics of the Indian Constitution as the very ‘Basic Structure’. If there is an onslaught on those features, it will definitely vitiate the sole intentions of the framers of the Constitution behind the enactment of the same.
Thus the Supreme Court established that even the constitutionally elected Government cannot do whatever it wishes to do especially in cases of Constitutional amendments. The Government can amend the Constitution for the need of the time, but it can no way take away the basic features of the Constitution. Justice Hans Raj Khanna propounded that “the Constitution of India has certain ‘basic features’ that cannot be altered or destroyed through amendments by the Parliament of India.” The most important among these “Basic Features”, as expounded by Justice Khanna, are the ‘Fundamental Rights’ guaranteed to individuals by the Constitution. The basic framework of the Constitution must always remain unchanged.
This case also set some other rare instances in the Indian Judicial History. The hearing of this case was the longest ever because it had been heard for 68 days commencing on October 31, 1972, and ending on March 23, 1973. In this case also, for the first time the largest ever Constitutional Bench of 13 Judges, led by 13th Chief Justice of India Sarv Mittra Sikri who outlined the judgment, was formed.
The judgment of this case consists of 200 pages and the bench gave 11 separate judgments which were divided into the majority views of 7 judges and dissent views of 6 judges. Eminent jurist Nani Palkhivala, assisted by Fali S Nariman and Soli J Sorabjee, presented the case before the court against the Government in this case. More importantly, this case including the preceding cases starting from ‘Sankari Prasad Case’ to ‘Golaknath Case’ bear ample instances of the tussle of powers between the three most important pillars of democracy in India- the legislature, executive, and judiciary, although it can be undoubtedly said that ‘this case saved the democracy of India’. This can be termed as the “historic Fundamental Rights case prevented the nation from slipping into a totalitarian regime.”
In this case, also the Supreme Court held that the ‘Preamble’ is the part of the Constitution. Thus the contributions of Petitioner Sripadagalvaru Kesavananda Bharati and the noted jurist Nani Palkhivala to save the democracy of India are unforgettable and indisputable.
- Case Name: Kesavananda Bharati Sripadagalvaru And Others Versus State Of Kerala And Another (AIR 1973 SC 1461)
- Equivalent Citations: 1973 4 SCC 225, 1973 SCR (Supp), 1 AIR 1973 SC 1461
- Court: Supreme Court of India
- Petitioners: Kesavananda Bharati Sripadagalvaru & Others.
- Respondents: State of Kerala & Another.
- Bench: Majority – Sikri, (C.J); Hegde and Mukherjea, JJ.; Shelat and Grover, JJ.; Jaganmohan Reddy, J.; Khanna, J. Dissent- Ray, J.; Palekar, J.; Mathew, J.; Beg, J.; Dwivedi, J.; Chandrachud, J.
- Decided On: 24th April, 1973
- Referred Cases:
- Sri Sankari Prasad Singh Deo vs. Union Of India And State Of Bihar (AIR. 1951 SC 458),
- Sajjan Singh vs. State Of Rajasthan (1965 AIR 845),
- C. Golaknath & Ors vs. State Of Punjab & Anrs. (1967 AIR 1643),
- Rustom Cavasjee Cooper vs. Union Of India ( 1970 AIR 564),
- Madhav Rao Scindia vs. Union of India (1971 AIR 530),
- Indira Nehru Gandhi vs. Raj Narain (AIR 1975 SC 2299),
- Minerva Mills Ltd. & Ors vs. Union Of India & Ors. (1980 AIR 1789),
Background and Core Facts of Kesavananda Bharati Case:
In this case, the petitioner His Holiness Kesavananda Bharati Sripadagalvaru was the chief of ‘Edneer Matt’- a Hindu Mutt situated in Edneer, a town in Kasaragod Region of Kerala. This ‘Mutt’ had certain pieces of land acquired under its name. When the Kerala State legislature passes the Kerala Land Reforms Act, 1963 which was further amended, and Kerala Land Reforms (Amendment) Act, 1969 came into force, by virtue of this Act, some lands were to be acquired by the State to fulfill its socio-economic obligations.
Therefore, the Fundamental Rights contained under the following Articles- Article 14 (Right to equality before the law), Article 19 (1)(f) (Right to acquire property which was later repealed by 44th Constitutional Amendment Act, 1978), Article 25 (Freedom of conscience and free profession, practice, and propagation of religion), Article 26 (Freedom to manage religious affairs), Article 31 (Compulsory acquisition of property which was later repealed by 44th Constitutional Amendment Act, 1978), were infringed. On 21st March 1970, the petitioner Kesavananda Bharati, being convinced by the noted jurist Nani Palkhivala challenged the Constitutional validity of Kerala Land Reforms (Amendment) Act, 1969 first in Kerala High Court and later in Supreme Court under Article 32 (Right to Constitutional Remedies) of Indian Constitution.
Meanwhile, the Kerala Government again passed another Kerala Land Reforms (Amendment) Act, 1971, when the petition was still pending in the Supreme Court. Both the Kerala Land Reforms Legislations were challenged in Supreme Court.
Series of Cases:
The background of the Kesavananda Bharati case was not made in one night. There were series of preceding cases that were involved to cement the background of the case. In all of these cases, the same question was being raised again and again that whether the Fundamental Rights are amenable or not within the purview of Article 368 of the Constitution. In answer to this question, the Supreme Court gave several rulings and at last came to the final decision in Kesavananda Bharati Case. These cases were —
In this case, the 1st Constitutional Amendment Act, 1951 was challenged on the ground that it was violating the ‘Fundamental Rights’ incorporated in Part III of the Indian Constitution and therefore it. The Supreme Court upheld the validity of this Constitutional Amendment Act and ruled that “the power of the legislature to amend any part of the Constitution under Article 368 also includes the power to amend the ‘Fundamental Rights’ incorporated in Part III of the Constitution.” Thus, in this case, the Supreme Court held that Part III doesn’t possess any special status with respect to the other parts of the Constitution and the provisions incorporated in it are also amenable by the legislature under Article 368 like any other ordinary part of the Constitution.
In this case, also the Supreme Court gave the same ruling as the Sankari Prasad Case. The 17th Constitutional Amendment Act, 1964 changed the definition of an “Estate” given in article 31A of the Constitution so as to include therein Lands held under Ryotwari Settlement in addition to other Lands in respect of which Provisions were normally made in Land Reform Legislations.
The Amendment also appended 44 additional State Legislations in regard to Land Reforms to the 9th Schedule of the Constitution (Validation of certain Acts and Regulations under Article 31B) in order to secure the Constitutional Validity of those Amendment Acts.
More importantly, it also made the Provision to prevent those from being challenged before any Court within the territory of India on the ground that those are inconsistent with any of the Provisions contained in Part III of the Constitution relating to Fundamental Rights of citizens. It also shortened the powers of High Courts under Article 226 of the Constitution. This Amendment Act was challenged in the Supreme Court in 1965 on the ground that it was an onslaught on the Fundamental Rights of the citizen and most importantly, it was curtailing the power of ‘Judicial Review’ which empowers the Courts to review the laws passed by the legislature and strike down any law or its part if that is found to be inconsistent with any part of the Constitution.
The petitioner sought to the Court for striking down this Amendment Act on the ground of being unconstitutional as it was taking away the power of ‘Judicial Review’ which is very important to protect the democracy of any country. But, in this case, the Supreme Court again held that the legislature can amend any part of the Constitution including Article 13 and the ‘Fundamental Rights’ within the purview of Article 368. The principle of ‘Pith and Substance’ was applied to this case.
Though the majority view, in this case, upheld the correctness of Sankari Prasad judgment, Justices J.R Mudholkar and M. Hidayatullah dissented in their views and they opined that the Constitution of India has some basic features and those are not supposed to come under the scope of Article 368. The basic features which are sacrosanct and unassailable must remain immune from arbitrary invasions of the State using the amending power under Article 368. Thus, in this case, Justice Mudholkar and Justice Hidayatullah first theorized the ‘Basic Structure Doctrine’ which was finally adopted in the Kesavananda Bharati Case.
In this landmark case, the petitioner had 500 acres of land in Jalandhar, Punjab. By virtue of the Punjab Security and Land Tenure Act, 1953, the State Government was entitled to acquire 30 acres of land, and the rest of the land was to be distributed among the workers on the field for their welfare. This Act was placed in the 9th Schedule by the 17th Constitutional Amendment Act, 1964.
The petitioner filed a Writ Petition under Article 32 of the Constitution and challenged the Constitutional Validity of the Act in Supreme Court in 1967 under the ground that it was incongruent with the certain ‘Fundamental Rights’ incorporated in Article 14, Article 19(1)(f) and Article 31 of the Constitution of India. As the Act was added in the 9th Schedule by the 17th Constitutional Amendment Act, 1964, the 17th Constitutional Amendment Act was challenged once again. In this case, also the same issue was raised again that whether the ‘Fundamental Rights’ are amenable or not within the scope of Article 368 by the legislature.
In this case, the Supreme Court altered the judgments of the Sajjan Singh and Sankari Prasad Cases and ruled that the Fundamental Rights contained in Part III of the Constitution are unassailable and those don’t come within the purview of Article 368. The Court termed the power of the legislature to amend any of the Fundamental Rights in Part III of the Constitution as ‘ultra vires’ which means beyond the powers. The 11 Judges Constitution Bench by the thin majority of 6 judges held that the power of Supreme Court in case of ‘Judicial Review’ under Article 13 is also applicable on the Constitutional Amendment Acts made by the legislature. Article 13(2) expressly states—
“The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.”
The majority view also decided that there is no large difference between a Constitutional Amendment Act and an Amendment Act of any ordinary law.
Therefore, if the legislature ‘takes away or abridges’ any of the ‘Fundamental Rights’, the judiciary is empowered under Article 13 to invalidate that Constitutional Amendment Act likes any other ordinary Amendment Acts.
Another notable facet of this case was that in this, for the first time in India, 9th Chief Justice of India Kokka Subba Rao applied the ‘Doctrine of Prospective Overruling’ which was originally propounded by Justice Cardozo in the U.S Case- Great Northern Railway Co. vs. Sunburst Oil & Refining Co. (287 U.S. 358). To overrule the judgment of the Golaknath Case, the Parliament passed the 24th Constitutional Amendment Act, 1971, and made the provision that the power of the legislature to amend the Constitution under Article 368 is unquestionable and unrestricted and naturally the background of the Kesavananda Bharati Case was formed.
This case is also known as ‘Bank Nationalization Case’. In this case, the Supreme Court struck down the Bank Nationalization Act, 1969 because of the compensation element of the enactment, but upheld the right of the Parliament to nationalize the banks.
This case is popularly known as ‘Privy Purses Case’. In this case, also the Supreme Court again struck down the Presidential order, and as a result of which, the Government attempted to abolish ‘Privy Purses’ which were the payments promised to the erstwhile princes by the Indian Government at the time of Independence.
Series of Constitutional Amendments:
The several Constitutional Amendment Acts also formed a strong background of Kesavananda Bharati’s Case. Those are—
- 24th Constitutional Amendment Act, 1971:
1. In order to surpass the ambiguities or difficulties made by the Supreme Court in Golaknath Case, the Parliament also amended Article 368 and annexed clause 3 to it which explicitly stipulated that—
“In this article, unless the context otherwise requires,—
(a) “Law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
(b) “Laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.”
Thus it expressly excluded the Constitutional Amendment Acts from the purview of Article 13.
2. The Golaknath judgment laid down that the validity of every amendment made under Article 368 will be subject to the exception laid down in Article 13 of the Constitution. To overrule this judgment, the parliament annexed clause 4 to it and stipulated that “Nothing in article 13 shall apply to any amendment made under this article.”
3. In Golaknath Case, the majority of the judges relied upon the ‘Marginal Note’ of the earlier Article 368 to decide that the provision only stipulated the ‘Procedure of Amendment’ and not ‘Power’. The Marginal Note of Article 368 was amended and the word ‘Power’ was appended in the ‘Marginal Note’.
4. Through an Amendment in Article 368(2), the Parliament attempted to make difference between the ‘Procedure of Amendment’ in any ordinary law and any Constitutional Amendment. Earlier the President of India was empowered to have a choice to reject or withhold any bill for the Constitutional Amendments as well as the Amendments in ordinary laws presented before him for his assent, but after the 24th Constitutional Amendment, that power of the President to reject or withhold the Constitutional Amendment Bills was taken away. In this way, the Parliament tried to make the Process of Amendments of Constitution and an ordinary law different so as to secure the Constitutional Amendments from the exception stipulated under a combined reading of clause 1 and clause 3(a) of Article 13 of the Constitution.
- 25th Constitutional Amendment Act, 1971:
1. The Supreme Court, in its judgment on C Cooper v. Union Of India (1970 AIR 564), popularly known as the ‘Bank Nationalization Case’ in 1970, ruled that “the Constitution guarantees the right to compensation, that is, the equivalent money of the property compulsorily acquired.” It was also held in this case that “a law which seeks to acquire or requisition property for public purposes must satisfy the requirement of Article 19(1)(f).”
The 25th Constitutional Amendment sought to overrule the R.C Cooper judgment to overcome the restrictions imposed on the Government by this ruling of the Supreme Court. The Parliament in order to clarify their stance that they are not bound to adequately compensate the landowners introduced Amendment on Article 31(2) in the case when the property is acquired by the State. Through this Amendment, the word ‘Compensation’ was replaced by the word ‘Amount’.
2. Parliament delinked Article 19(1)(f) from Article 31(2) of the Constitution.
3. Article 31C, a new provision was annexed to the Constitution to remove and surpass all the difficulties. The Amendments were —
(a) Articles 14, 19 & 31 are not to be applied to any law enacted under the fulfillment of objectives laid down under Article 39(b) and 39(c).
(b) Any law to give effect to Article 39(b) & 39(c) will remain immune from the interventions of any Court.
- 29th Constitutional Amendment Act, 1972:
Through this Constitutional Amendment, the Parliament placed two Kerala Land Reforms Acts in the 9th Schedule of the Constitution. Even, 34th Amendment Act, 1974 included 20 more Land Tenure and Land Reforms Acts of various States in the 9th Schedule. In 29th Amendment, it was also stipulated that those inclusions of impugned provisions of two Kerala Land Reforms Acts in 9th Schedule will not be challenged in any Court and therefore, those will remain immune from ‘Judicial Scrutiny’.
In Kesavananda Bharati Case, the ‘Constitutional Validities’ of the impugned provisions of two Kerala Land Reforms Acts along with the 24th, 25th & 29th Constitutional Amendment Acts were challenged in the Supreme Court as those all were curtailing the power of the Courts to ‘Judicial Review’ and thus the three Constitutional Amendment Acts prepared the most important background of this landmark case.
Cardinal Issues Involved in Kesavananda Bharati Case:
- Whether the ‘Fundamental Rights’ contained in Part III of the Constitution are amenable by the Parliament within the scope of Article 368 or not.
- Whether 24th, 25th & 29th Constitutional Amendment Acts were valid or not.
The Verdict of Kesavananda Bharati Case:
In Kesavananda Bharati case, the judgment of Golaknath Case was overruled and the Supreme Court formulated the ‘Basic Structure Doctrine’. It was well settled by the Court that provision pertaining to the Amendment of the Constitution is the characteristic or most important aspect of the modern Constitutions of every democratic country in the World. Each judge in this case laid out their separate views, what they thought were the basic or essential features of the Indian Constitution. Another notable fact is that there was no unanimity of opinions within the majority view either.
Nine amongst the thirteen judges- Justices J. M. Shelat, K.S. Hegde, A.N. Grover, B. Jaganmohan Reddy, D.G. Palekar, H.R Khanna, A.K. Mukherjee, Y.V. Chandrachud along with CJI S.M Sikri signed in the final verdict. On the other hand, the other four judges- Justices A.N. Ray, K.K. Mathew, M.H. Beg, and S.N. Dwivedi did not sign in the final verdict. The final verdict was divided into the majority views of 7 judges and dissent views of 6 judges.
The Majority decision was as follows —
“Article 368 does not enable the Parliament to alter the Basic Structure or framework of the Constitution. The power of Amendment does not include the power to alter the basic structure or framework of the Constitution so as to change its identity.”
As per then Chief Justice of India S.M Sikri—
“Golaknath case held that the word Amendment includes both legislative and Constitutional Amendment. Golaknath case did not decide on the expression Amendment of the Constitution under Article 368. Amendment to Constitution does not enable the Parliament to abrogate or take away Fundamental Rights or completely change the fundamental features of the Constitution.”
According to Justices Shelat and Grover along with Chief Justice S.M. Sikri, there are some ‘Basic Features’ of the Indian Constitution that cannot be changed or amended under Article 368 and those are —
- Federal character of the Constitution,
- Separation of powers between the legislature, the executive, and the judiciary,
- The supremacy of the Constitution,
- Republican and democratic form of the Government,
- Secular character of the Constitution.
Therefore, according to Justice S.M Sikri, the Parliament is constitutionally empowered to amend any Article of the Constitution except those which constitute ‘Basic Structure of the Constitution’, even though Justices Hegde and Mukherjea proposed a separate and shorter list of ‘Basic Features’ —
- Democratic character of the polity,
- Sovereignty of India,
- Essential features of the individual freedoms secured to the citizens,
- Mandate to build a ‘Welfare State’,
- Unity of the Country.
They also commented that —
“Power to amend the Constitution under Article 368 before the 24th Amendment empowered the Parliament to amend each and every Article and each and every Part of the Constitution. Though the power under Article 368 is very wide, it does not include the power to destroy or emasculate the basic elements or fundamental features of the Constitution.”
In this Case, the Apex Court upheld the Constitutional Validity of the 24th Constitutional Amendment Act, 1971 stating that Parliament has the power to amend any or all provisions of the Constitution except the ‘Basic Features’ which are given above.
Justice H.R Khanna stated that —
“Article 368 contains the procedure for Amendment of the Constitution as well as confers the power of amending the Constitution. Power of Amendment under Article 368 does not include power to abrogate the Constitution nor does it include the power to alter the basic structure or framework of the Constitution. Power of Amendment is plenary subject to retention of basic structure. This includes the power to amend various Articles of the Constitution including those relating to Fundamental Rights. No part of Fundamental Right can claim immunity from amendatory process.”
Justice Y.V Chandrachud stated that —
“The word Amendment in Article 368 has a clear and definite import and it connotes a power of the widest amplitude to make alterations, additions or variations. The decision that there is no distinction between an ordinary law and law amending the Constitution is incorrect. Article 13(2) dealt with only ordinary laws, not Amendments to Constitution effected under Article 368. The decision that Parliament had no power to amend the Constitution so as to abrogate or take away Fundamental Rights is incorrect.”
Further, the Court also held that certain keywords in the Preamble form an essential part of the ‘Basic Structure of the Constitution’ and declared that “this basic structure was inviolable thereby casting a limitation to Parliament’s power to amend the Constitution.” Justice Jaganmohan Reddy also held that these following features of the preamble are ‘Basic Features’ —
- Sovereign, democratic and republican nature,
- The equality of the status,
- Social, economic, and political justice,
- Liberty of thoughts and expression,
- Belief, faith, and worship.
In a nutshell, the basic features of the Indian Constitution which were decided by the Supreme Court were —
- Supremacy of the Constitution;
- Rule of law;
- The principle of Separation of Powers;
- The objectives specified in the Preamble to the Constitution of India;
- Judicial Review;
- Articles 32 and 226;
- Federalism (including financial liberty of states under Articles 282 and 293);
- The Sovereign, Democratic, Republican structure;
- Freedom and dignity of the individual;
- Unity and integrity of the Nation;
- The principle of equality, not every feature of equality, but the quintessence of equal justice;
- The “essence” of other Fundamental Rights in Part III;
- The concept of social and economic justice — to build a Welfare State;
- The balance between Fundamental Rights and Directive Principles;
- The Parliamentary system of government;
- The principle of free and fair elections;
- Limitations upon the amending power conferred by Article 368;
- Independence of the Judiciary;
- Effective access to justice;
- Powers of the Supreme Court under Articles 32, 136, 141, 142;
- Legislation seeking to nullify the awards made in exercise of the judicial power of the State by Arbitration Tribunals constituted under an Act.]
Succinctly it was derived by the Court that the Parliament is empowered to amend any part of the Constitution, but the ‘Basic Structure’ of the Constitution must remain intact.
Thus the Supreme Court evolved and adopted the ‘Doctrine of Basic Structure’ to uphold those features of the Constitution of India as sacrosanct and inviolable from the arbitrary invasions of the State and the State must abide by those ‘Basic Characteristics’.
Effects of the Kesavananda Bharati Case:
- Indira Nehru Gandhi vs. Raj Narain (AIR 1975 SC 2299): In this case, in order to negate the judgment of Allahabad High Court invalidating Prime Minister Indira Gandhi’s election to parliament, the 39th Constitutional Amendment Act, 1975 was introduced by then Prime Minister Indira Gandhi’s Government during the time of National Emergency of 1975 and Article 329A was inserted through this Amendment which stipulated that the election of the Prime Minister and Speaker of Lok Sabha cannot be questioned. It attempted to regularize the election of Prime Minister Indira Gandhi and Speaker of Lok Sabha which was struck down by the Supreme Court citing the ‘Basic Features of Democracy’, ‘Rule of Law and Equality’ as held in Kesavananda Bharati Case.
- Minerva Mills Ltd. & Ors vs. Union Of India & Ors. (1980 AIR 1789): In this case, the 42nd Constitutional Amendment Act, 1976 was challenged in the Supreme Court. Through this Amendment Act, clauses 4 and 5 were inserted in Article 368. This Constitutional Amendment made a large number of changes to the Constitution and also to the Preamble. In some points of view, it changed almost the full Constitution through a large number of Amendments to various Articles and introduced a new Constitution which was different in many ways from the original Constitution. Because of this reason, it is sometimes called a “Mini-Constitution”. The 42nd Amendment also led to the addition of some new Articles and Clauses. Through this Constitutional Amendment, Parliament was conferred unquestionable and unrestrained power to amend any parts of the Constitution, overcoming the difficulties of ‘Judicial Review’. It transferred more powers from the State Governments to the Union Government, eroding India’s ‘Federal Structure’. The major changes which were made through this Constitutional Amendment were that it changed the words “unity of the nation” to “unity and integrity of the nation” and the description of India from “Sovereign Democratic Republic” to a “Sovereign, Socialist, Secular Democratic Republic.” The Supreme Court eventually struck down the Constitutional Amendment on the ground that the ‘Judicial Review’ of any Parliamentary enactment, and the limitations of Parliamentary power to amend the Constitution. Those were curtailed by this 42nd Constitutional Amendment Act, 1976, itself constitute the significant parts of the ‘Basic Structure of the Constitution’ and cannot be bypassed at any point in time.
It is needless to say that Kesavananda Bharati Case is the most important case in the History of Independent India as it saved the ‘Democracy of India’ and Senior Advocate and legendary jurist Nani Palkhivala was the protagonist of this landmark case.
In an Article ‘Palkhivala and the Constitution of India’ authored by former Attorney General of India and Eminent Jurist- Soli J. Sorabjee, he stated that — Palkhivala believed that a Constitution is intended not merely to provide for the exigencies of the moment but to endure over the ages. He urged that we should get accustomed to a spacious view of the great instrument because “the Constitution was meant to impart such a momentum to the living spirit of the rule of law that democracy and civil liberty may survive in India beyond our own times and in the days when our place will know us no more”.
He pointed out that our original Constitution provided for stability without stagnation and growth without destruction of human values. He lamented that the recent amendments had only achieved stagnation without stability and destruction of human values without growth. Palkhivala did not at all believe that a Constitution is unamendable or cannot be changed. He shared the thinking of Thomas Jefferson who said: “Some men look at constitutions with sanctimonious reverence and deem them like the Ark of the Covenant too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human and suppose what they did to be beyond amendment…. I am certainly not an advocate for frequent and untried changes in laws and Constitution … but I know that the laws and institutions must go hand in hand with the progress of human mind…. As new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also and keep pace with the times.”
By this case, the Supreme Court firmly established that in a nation like India where the ‘Constitutional Democracy’ prevails, only the Constitution of India must be inducted into the most sacred ‘Pedestal of Deity’ immortalizing its ‘Fundamental Frameworks’. Even though the petitioner His Holiness Kesavananda Bharati lost this case as the Supreme Court upheld the validity of two Land Reforms Acts which were challenged, this ‘Historic Fundamental Right’s Case’ impelled the Supreme Court to evolve the ‘Basic Structure Doctrine’ safeguarding the sacrosanct features of the Indian Constitution and it protected the nation from slipping into the totalitarian regime.
. Cite as : (2003) 4 SCC (Jour) 33
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