|Citation||1973 KHC 800|
S. M. Sikri, C. J. I. ; J. M. Shelat; K. S. Hegde; A. N. Grover; A. N. Ray; P.Jaganmohan Reddy; D. G. Palekar; H. R. Khanna; K. K. Mathew; M. H.Beg; S. N. Dwivedi; A. K. Mukherjea; Y. V. Chandrachud, JJ.
His Holiness Kesavananda Bharati Sripadgalvaru and Others v. State of Kerala and Another Parallel citation(s) : 1973 KHC 800 : 1973 (4) SCC 225 : AIR 1973 SC 1461 : 1973 Supp SCR 1 CaseNo : W. P. Nos. 135 of 1970, 351, 352, 373, 374, 400 of 1972
Constitution of India – Art.13(2) – Meaning of Law – Does it include 'Amendment' – Held, it does not include amendments to the Constitution – Art.13(2) has reference to ordinary piece of legislation
Important Para(s):1381, 1548
Constitution of India – Preamble. – Is preamble a part of Constitution – Held preamble is a part of Constitution – Interpretation of Statutes – Importance of preamble as an aid in constructing a statute
Important Para(s):36, 84, 1482
Constitution of India – Art.368 – Scope of Amendment under Art.368 – Interpretation of Statutes – Words and Phrases – Law – Amendment – Amendment does not include power to abrogate Constitution – Does not include power to alter the basic structure of Constitution – Basic Structure – Subject to – Power of amendment, plenary – Parliament can amend various articles, including fundamental rights – No immunity from amendatory process, for any part of fundamental rights – Amendment includes power to add to, alter or repeal various articles – I.C. Golaknath v. State of Punjab, overruled
Important Para(s):1440, 1445, 1163
Constitution of India – Art.31 – Constitution of India (25th Amendment Act,1971) – Amendment of Art.31 sub clause (2) – Substitution of New clause – Clause 2B inserted after Clause 2A – Acquisition of property by State – New Clause 2 the State has power to acquire or requisition property for amount named in the Act – Word “amount” substituted instead of word “compensation” – New Clause 2 (B) Art.19(1)(f) relating to the right to acquire, hold and dispose of property is made inapplicable to laws under Art.31, Clause 2 – Validity of amendment – The adequacy of amount not justiciable – Held, amendment valid
Important Para(s):775, 1078
Interpretation of Statutes – External Aids of Interpretation – Constituent Assemble Debates – Reliance – Explained
Constitution of India – Constitution of India (Twenty - Fifth Amendment Act) 1971, S.3 – Insertion of – Art.31C – Validity of – First part of S.3 valid – Law purporting to made by Legislature under Art.31C in order to give effect to objects of Directive Principles of State Policy as enshrined in Art.39(b)&© can be challenged only on the ground of it does not give effect to the object – Second part of S.3, “and no law containing a declaration that it is for giving effect to such policy shall be called into in any Court on the ground that it does not give effect to such policy” – Ouster of jurisdiction of Court – Not visualized in Art.31C – Invalid
Important Para(s):611, 431
Constitution of India – Art.31A – Art.31C – Interpretation of Statutes – Pari materia provisions - Art.31A valid – Art.31C valid
Important Para(s):1093, 1119
Constitution of India – Constitution of India(Twenty-Fifth Amendment Act) 1971 – Insertion of Art.31C – First part valid – Second part invalid – Strikes at Basic Structure of Constitution – Ouster of judicial scrutiny – Interpretation of statutes – Interpretation of Constitution – Doctrine of severability – Second part severed from the rest of the provision – Valid
Important Para(s):1217, 1219
Constitution of India – Art.31B – Constitution of India (Twenty-Ninth Amendment Act) 1971 – Insertion of Acts – Land Reforms (Amendment) Act, 1969 (Kerala), Land Reforms (Amendment) Act, 1971 (Kerala) – Amendment – Constitutionality of an Act – Validity of – Held, Twenty-Ninth Amendment Act, valid – Schedule.7 Art.31B – Acts included in Ninth Schedule are immune from challenge
Constitution of India – Constitution of India (Twenty-Ninth Amendment) Act, 1971 – Valid – Art.31B – Ninth Schedule –Validity of an Act in Ninth Schedule – Whether Amendment Act or any provisions of Act included in Ninth Schedule abrogates any basic element of Constitutional structure or denudes of their identity – Question will have to be answered
Constitution of India – Art.31B, Art.368 – Constitution of India (Twenty-Ninth Amendment) Act, 1971 – Art.368 does not enable Parliament to take away or abrogate fundamental rights – Art.31B and Ninth Schedule bad in so far as it protects statutes which takes away fundamental rights – Twenty-Ninth Amendment Act is bad in so far as it protects the impugned Act which takes away fundamental right
Important Para(s):468, 486, 633, 628, 796
Constitution of India – Art.368 – Amendment to Constitution of India – Any provision of Constitution can be amended, provided the basic structure remains the same – Basic structure explained
Important Para(s):513, 518, 618, 786
Interpretation of statutes – Principles of construction of statutes, including Constitution
Constitution of India – Art.368 – Art.368 does not enable the Parliament to alter the basic structure of the Constitution – Constitution of India, Art.13
Constitution of India – (Twenty-fourth Amendment) Act, 1971 – Is valid
Important Para(s):42, 408, 409, 410
Constitution of India – Art.13(2) – Expression 'Law' – Does not include constitutional amendments under Art.368 – Constitution of India, Art.368
Important Para(s):639, 640, 641, 759
Constitution of India – Art.31 – Constitution of India (Twenty-fifth Amendment) Act, 1971, S.2 – State has power to acquire or requisition property – Hence, the provision is valid
Important Para(s):725, 1202, 1733
Constitution of India – Art.31C – Constitution of India (Twenty-fifth Amendment) Act, 1971, S.3 – First part of S.3 inserting Art.31C is valid –Second part invalid
Land Reforms (Amendment) Act, 1969 (Kerala) – Land Reforms (Amendment) Act, 1971 (Kerala) – Constitution of India (Twenty-ninth Amendment) Act, 1971 – Is valid -Constitution of India, Schedule.9
Herein below are some lesser known facts and events related to this case, which are as follows:
1. Supreme Court heard this case with its largest bench ever i.e., 13 Judges Bench (because Golak Nath’s case was decided by 11 judges, so Court procedure dictated that any challenge had to be before an even larger odd number bench) over the longest number of days — 68 (or 66 days as few contend) and delivered 11 verdicts, with fine shades of difference, all on the same day which was the Chief Justice Sarva Mittra Sikri’s last working day. The arguments in this case began on 31st October 1972.
2. Petitioner’s (Kesavananda Bharati’s) full name was Srimad Jagadguru Sri Sri Sankaracharya Thotakacharya Keshavananda Bharathi Sripadangalavaru. He died on 6 September 2020 at the age of 79.
3. You will get a 502 pages long Judgement if you download it from judis.nic.in and 811 pages Judgement if you download it from scconline.com. However, the judgment stretching up to 703 pages with SCC footnotes of 80 pages alone was ended with a controversial ‘summary’. This summary was signed only by 9 judges. (Ray, Mathew, Beg and Dwivedi did not sign)
4. There were six (6) Writ Petitions in toto (Keshvananda Bharati, 2 erstwhile rulers and mining, sugar and coal companies) and 20 intervenors which were clubbed by the Supreme Court as they involved common questions of law. Bharati became the lead petitioner since he filed the petition first; regardless, he did not have any role to play in the subsequent legal drama.
5. The entire case came very close of being reheard because of illness of Justice Beg. He fell ill in February & March 1973 and was hospitalized thrice. His recovery and Chief Justice Sikri’s 2 week Europe trip and superannuation also came in way. However, due to parallel efforts by the bar and bench the 5 month long arguments did not go in vain.
6. The Court’s approach seemed to heavily rely on the work of Prof. Dietrich Conrad, who was a renowned constitutional law Professor in Germany. Scholars like Prof. I.P. Massey argue that the Court’s language echoed the words of Prof. Conrad from a lecture he delivered in Banaras Hindu University in India wherein he spoke on the topic of 'Implied Limitation of the Amending Power'. Sadly, however, only Justice Khanna acknowledged the contribution in his opinion.
7. A paper was written on the theme of the lecture and Mr. M.K. Nambiar (a constitutional lawyer) came across it. Mr. Nambiar was so impressed with the doctrine and the possible questions it raised, that he relied upon it while arguing before the Supreme Court in the case of Golak Nath v. State of Punjab, (AIR 1967 SC 1643). The Court did not accept the doctrine, however the majority held that the argument had substantial force and may be revisited if a situation arises where the Parliament attempt to destroy the structure of the Constitution. Such a situation came about in the case of Kesavananda Bharti case.
8. Justice Nariman in a lecture shared an interesting anecdote about the hearing in Kesavananda's case. He recalled, that Shri Palkhivala had gone to Court without any supporting judgments or case laws for his proposition on implied limitations. The only authority Mr. Palkhivala had was the article authored by Prof. Conrad. This shows both the genius of Prof. Conrad and most importantly the brilliance of Mr. Palkhivala who by his sheer advocacy was able to convince 7 out of 13 Judges with his argument. The Court called this theory, the doctrine of Basic Structure, a moniker for Conrad's Implied Limitations.
9. While appreciating the judgment, we should rightfully laud the efforts of Shri. Nani Palkhivala i.e. the lawyer who argued the case and the great Justice H.R. Khanna i.e. the Judge who acted as the swing vote and ruled in favour of the Doctrine, making it a wafer-thin majority of 7:6 decision in its favour.
10. There is a school of thought which believes that Conrad was not the inspiration behind the Doctrine. According to eminent scholar Fali S. Nariman, Justice Mudholkar had first used the phrase 'basic feature' in the case of Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845). Justice Mudholkar had got the idea of a basic feature from a judgment of Chief Justice AR Coohelius of the Pakistan Supreme Court, wherein he had observed that the President of Pakistan under the 1956 Constitution, though empowered to remove difficulties in the Constitution, had no power to remove “a fundamental feature of the Constitution” (Fazlul Quader Chowdhry v. Mohd. Abdul Haque, PLD 1963 SC 486). However, this school of thought occupies the minority view on the origins of the Doctrine and the dominant view considers Prof. Conrad as the inspiration behind the Doctrine.
11. On March 23rd the arguments of this case came to an end and written submissions were filed by March 28th, leaving the judges just a month to arrive at their verdicts.
12. The beauty of this case was that at first glance, it would seem that the government had won, which we all know was not the verdict.
13. Petitioner was bewildered at that time to find his name in the papers and Senior counsel T.R. Andhyarujina recalls his advocate saying His Holiness worried about how to pay these high profile lawyers, not realizing that all were only working for the prestige and importance of the case. In fact, Bharati claims he never met Palkhivala or ever spoke to him, perhaps one of the few cases in legal history, where a client never met his lawyer, on such a notable case.
14. In the years since, a few curious legal students had made their way to the mutt to meet him, and he greeted them politely and asked if they have eaten. About the case in his name that remade the Indian constitution, he said he only vaguely remembers a property matter many years back.
15. Even though Mr. Niren De was the Attorney-General of India and should have had precedence, and opened the arguments, Hormusji Seervai was bestowed with the power of opening the arguments by the then Government.
16. Nani Palkhivala, for the plaintiff, took on his friend Hormasji Maneckji Seervai representing the State of Kerala. Both were assisted by a formidable battery of legal talent. Palkhivala was assisted by Soli Sorabjee, Fali S Nariman and Anil Divan, and instructed by JB Dadachanji, Ravinder Narain, DM Popat, and ML Bhakta. Seervai, representing the government, had Niren De, Tehmton Andhyarujina, Lal Narain Sinha, Byra Reddy and Dr. LM Singhvi.
This case had become an exporter of Constitutional Ideas as the same has been influencing the foreign legal systems since April 24, 1973. Here is a list of foreign Judgements which relied on Kesavananda Bharati Case:-
1. In Bangladesh, after 16 years of Kesavananda verdict, Bangladesh Supreme Court also recognised the Basic Structure Doctrine in Anwar Hossain Chowdhary v. Bangladesh, LEX/BDAD/0011/1989: 41 DLR (AD) (1989) 165 by relying on it.
2. In Pakistan, even after the Judgement of Chief Justice AR Coohelius of the Pakistan Supreme Court in Fazlul Quader Chowdhry v. Mohd. Abdul Haque, PLD 1963 SC 486, wherein Hon'ble Justice used the phrase “Fundamental feature of the Constitution, until 2015, the Pakistan Supreme Court refrained from accepting Basic Structure Doctrine in clear terms; but on August 5, 2015, a historic judgment was delivered by a bench of 17 Judges in District Bar Association v. Federation of Pakistan, 2015 SCC Online Pak SC 2, wherein unamendability of fundamental provisions of Constitution was recognised.
3. In Belize, a Caribbean nation, the Belize Court relied upon Kesavananda Case and IR Coelho Case in Barry M. Bowen v. Attorney General of Belize, BZ 2009 SC 2, to adopt the Basic Structure Doctrine.
4. In Kenya, the High Court of Kenya at Nairobi in Njoya v. Attorney General,  LLR 4788 (HCK), held that power of Parliament was limited only to 'alterations' of the existing Constitution, since power to make a new Constitution (the constituent power) belongs to the people of Kenya as a whole. Also, in Law Society of Kenya v. The Centre for Human Rights and Democracy, Constitutional Appeal No. 02 of 2018,  UGSC 6, while interpreting the ouster clause, the Kenya High Court also discussed the approach adopted in Kesavananda Case and held that in situations of strong and compelling circumstances, the ouster clause may be usurped.
5. In Uganda, an East African Country, the Supreme Court of Uganda while dealing with a Constitutional amendment which was made removing the age limit for position of the President; held in Male H Marlize K. Kiwanuka and ors. v. the Attorney General, Constitutional Appeal No. 02 of 2018,  UGSC 6, that the said amendment is constitutional and that the age of the President is not a part of Basic Structure and observed that the effect of the impugned amendment is to increase the spectrum of people's choice. To arrive at this conclusion, the Court delved into existence of the Basic Structure Doctrine across different legal systems and it observed– “Basic Structure Doctrine is a Judge-made Indian Principle.”
6. In Seychelles, the Courts of Appeal of Seychelles in Popular Democratic Movement v. Electoral Commission, (2011) SLR 385: 2011 SCC Online SCCA 10, on the issue whether Preamble is a part of Constitution or not also could not resist itself from referring to Kesavananda.
Kesavananda Case is an apt example of cross-pollination of constitutional ideas, spreading the ideas of 'importance of preamble in the Constitution', 'Basic Structure Doctrine', 'Supremacy of the Constitution', and 'Limited power of Parliament to amend the Constitution' which benefitted all the courts globally.
Professor Dietrich Conrad appreciated the role of Indian Supreme Court in this context: “…in this free trade of constitutional ideas, the Indian Supreme Court has come to play the role of an exporter. This holds true with respect to at least two major innovations introduced by the Court, public interest litigation and the basic structure doctrine.”