The case of Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 : (1973) 4 SCC 225, is a case decided by a bench of 13 judges of the Supreme Court of India in the year 1973. At that time, this was the full strength of the Supreme Court. This is largest strength of a bench of the Supreme Court which has finally decided any case so far. The main issue in this case was the nature and scope of amending power of the Constitution, i.e., mainly Article 368 of the Constitution which provided for amendment of the Constitution.
The constitutional validity of two Constitution Amendment Acts, namely, the 24th and the 25th Amendment Acts, was challenged in this case before the Supreme Court by way of a writ petition filed under Article 32 of the Constitution.
It may be pointed out that the Constitution (24th Amendment) Act, 1971, had amended Articles 13 and 368 of the Constitution, to re-assert the power of the Parliament to amend any provision of the Constitution, including the fundamental rights.
On the other hand, the Constitution (25th Amendment) Act, 1971, had made changes to Article 31 by substituting the clause (2) with a new clause, and by inserting a new (2B) clause therein; a new Article 31C was also inserted in the Constitution. The net effect of these changes was to further weaken the right to property and to delink Article 19(1)(f) from Article 31(2).
This case of Kesavananda Bharati was decided by a narrow majority of 7 to 6 judges. It was held by the majority that there are certain basic features of the Constitution, which cannot be destroyed or damaged while amending the Constitution. Thus, it meant that while any provision of the Constitution could be amended by following the procedure prescribed under Article 368, such a power to amend was not absolute in as much as the basic features of the Constitution could not be destroyed or emasculated during such an amendment.
These are the main findings of the majority opinion in this case:
1. The power to amend the Constitution was to be found in Article 368 itself. It was found unbelievable that the makers of the Constitution left such an important power to amend the Constitution hidden in the residuary legislative powers of the Parliament, especially when provisions relating to the amendment of a Constitution are some of the most important features of any modern Constitution. To this extent, the decision of the Golak Nath v. State of Punjab, AIR 1967 SC 1643, was overruled.
2. It was held that there was a distinction between an ordinary law and a constitutional law. It was further held that the word law used in Article 13 did not include constitutional law, thereby meaning that an amendment under Article 368 could even abridge or take away a fundamental right. To this extent again, the decision of the Golak Nath v. State of Punjab, AIR 1967 SC 1643, was overruled.
3. However, a new concept of implied limitations on the amending power was added by the majority now. It was now held that there are certain basic features of the Constitution, which cannot be destroyed or damaged while amending the Constitution. Thus, it meant that while any provision of the Constitution could be amended by following the procedure prescribed under Article 368, such a power to amend was not absolute in as much as the basic features of the Constitution could not be destroyed or emasculated during such an amendment.
4. What are the basic feature of the Constitution? The court refused to give an exhaustive list of all the basic features of the Constitution, saying that this question was to be decided by the court on a case to case basis to see if a particular amendment of the Constitution affects a basic feature of the Constitution. It was not possible to lay down a list of all the basic features of the Constitution. However, some of the features of the Constitution considered basic features by the court in this case are:
- Supremacy of the Constitution.
- Republican and democratic form of the government.
- Principle of secularism in the Constitution.
- Separation of powers among legislature, executive and judiciary.
- Federal character of the Constitution.
- The dignity of the individual secured by the various freedoms and basic rights in Part III and the mandate to build a welfare State contained in Part IV.
- The unity and the integrity of the nation.
But, this list was only to be an illustrative list and not an exhaustive list of all the basic features of the Constitution.
5. The said theory of implied limitations on the amending power or the non-amendability of the basic features of the Constitution was based on the view that the word amend used in Article 368 has a restrictive connotation and could not comprise a fundamental change in the Constitution. The words amendment of the Constitution in Article 368 could not have the effect of destroying or damaging the basic features of the Constitution.
6. The Constitution (24th Amendment) Act, 1971, which has been noted above, was held to be valid. In fact, some judges pointed out that the said Amendment Act by amending Article 368 made explicit what was already implicit in the unamended Article 368.
This decision in Kesavananda Bharati case changed the complete nature of the amending power in the Indian Constitution. The fundamental rights could now be said to be amendable, except, of course, those fundamental rights which could be considered by the court to be part of the basic features of the Constitution. Moreover, all provisions of the Constitution were now within the reach of the amending power, but subject to the condition that the basic features of the Constitution could not be amended. And, the question as to what are these basic features of the Constitution is left for the court to decide as and when a particular amendment is challenged before the court. This, of course, led to a lot of uncertainties, as the Parliament would now not know before amending the Constitution as to whether the amended provisions were going to survive the test of the basic features theory when challenged in the court.
[Note: Some contents have been taken from the book of the author: Need to Amend a Constitution and Doctrine of Basic Features (2007 Edition), appx. 600 pages, published by Wadhwa and Company Nagpur, New Delhi (ISBN:978-81-8038-253-6).]
