Kesavananda Bharati Revisited: Whether

Basic Structure Doctrine was the ratio of

Kesavananda Bharati ?

Submitted ByDhrupad Pant

5th Year B.A., LL.B.(Hons.) Student
Hidayatullah National Law University, Raipur.

Electronic copy available at: http://ssrn.com/abstract=2335429

INTRODUCTION
Eleven days before the pledge-taking his Holiness Swami Kesavananda Bharati
Sripadagalvaru lodged a case in the Supreme Court whose outcome would profoundly affect
the countrys democratic processes.1 A month after the hearings concluded, on April 24, 1973
in Chief Justice Sikris courtroom the thirteen judges delivered eleven judgments and what
came to be called a statement signed by nine of the judges. The statement began, The
view of the majority in these writ petitions is as follows.2 The essence of the view of the
majority was that Article 368 did not enable Parliament to alter the basic structure or
framework of the Constitution.3
According to Granville Austin, The benchs glory was in its decision, not in the manner of
arriving at it, which reflected ill of itself and on the judiciary as an institution In
Kesavananda, the Court emerged as victorious asserting its institutional role vis--vis
Parliament in constitutional matters and strengthening its power of judicial review through
the basic structure doctrine4
This view of the majority is the law of India, clearly and emphatically expressed. 5 This
basic structure doctrine is fairly said to have become the bedrock of the constitutional
interpretation in India.6
The paper primarily revolves around the question whether basic structure doctrine was the
ratio of Kesavananda Bharati case or it was the stratagem of pronouncing the view of the
majority by Chief Justice Sikri that gave basic structure doctrine the effect of a ratio? The
paper analyses eleven opinions delivered by thirteen judges and their critique by various
jurists and legal luminaries along with the inputs from the author.
1

GRANVILLE AUSTIN, WORKING A DEMOCRATIC CONSTITUTION: A HISTORY OF THE INDIAN EXPERIENCE 258
(1999).
2
(1973) 4 SCC 225, 1007.
3
Kesavananda Bharati & Others v. State of Kerala & Others, (1973) 4 SCC 225, 1007 (2); GRANVILLE AUSTIN,
WORKING A DEMOCRATIC CONSTITUTION: A HISTORY OF THE INDIAN EXPERIENCE 264 (1999);
4
GRANVILLE AUSTIN, WORKING A DEMOCRATIC CONSTITUTION: A HISTORY OF THE INDIAN EXPERIENCE 258
(1999).
5
GRANVILLE AUSTIN, WORKING A DEMOCRATIC CONSTITUTION: A HISTORY OF THE INDIAN EXPERIENCE 265
(1999).
6
GRANVILLE AUSTIN, WORKING A DEMOCRATIC CONSTITUTION: A HISTORY OF THE INDIAN EXPERIENCE 258
(1999).

1|Page

Electronic copy available at: http://ssrn.com/abstract=2335429

WHETHER

BASIC

STRUCTURE

DOCTRINE

WAS

THE

RATIO

OF

KESAVANANDA BHARATI ?
Prof. Upendra Baxi remarked, Kesavananda Bharati creates many paradoxes. Although it is
in the ultimate analysis a judicial decision, it is not just a reported case on some Articles of
the Indian Constitution. Indeed, it is in some sense, the Indian Constitution of the future. 7

The most important and standard application of the Kesavananda Bharati is the proposition
stated in view of the majority that Parliament cannot alter the basic structure of the
Constitution and hence, it is critical to examine whether there was a ratio to that effect
derived from the 11 judgments delivered in the case on April 24, 1973.

It may not be out of place understand what is meant by ratio decidendi. The expression has
been described as, any rule of law expressly or impliedly treated by the Judge as
necessary step in reaching his conclusion, having regard to the line of reasoning adopted by
him8

The eleven judgments delivered by the thirteen judges with respect to their observations
regarding power of Parliament to amend the Constitution under Article 368 are as follows.

OBSERVATIONS OF THE HONBLE LORDSHIPS:

The observations given below are in the order as produced in Supreme Court Cases.9

Observations of Chief Justice Sikri:

Chief Justice Sikri observed that the word amendment would not permit the destroying of the
democratic structure of the Constitution and the basic inalienable rights guaranteed by Part III
and the Preamble.10
In his conclusions he observed,11

Upendra Baxi, The Constitutional Quicksands of Kesavananda Bharati and the Twenty-Fifth Amendment,
(1974) 1 SCC (Jour) 45, 45.
8
Joseph Minattur, The Ratio in Kesavananda Bharati Case, (1974) 1 SCC (Jour) 73, 73.
9
(1973) 4 SCC 225.
10
(1973) 4 SCC 225, 346-349, paras 210-223; (1973) 4 SCC 225, 365, para 284.
11
(1973) 4 SCC 225, 405, para 475 (c).

2|Page

The expression amendment of this Constitution does not enable Parliament to

abrogate or take away fundamental rights or to completely change the
fundamental features of the Constitution so as to destroy its identity. Within these
limits Parliament can amend every article.

Observations of Justice Shelat and Justice Grover:

The Lordships in their common judgment held that there were implied limitations on
amending power of Parliament and that there were certain basic elements of the
Constitution.12
In their conclusion they stated,13
(b)

though the power to amend cannot be narrowly construed and extends to

all the Articles it is not unlimited so as to include the power to abrogate or

change the identity of the Constitution or its basic features;
(c)

even if the amending power includes the power to amend Article 13(2),

a question not decided in Golak Nath case, the power is not so wide so as to
include the power to abrogate or take away the fundamental freedoms;

Observations of Justice Hegde and Mukherjea:

Their Lordships in their common judgment held that if the basic features of the
Constitution are taken away to that extent the Constitution is abrogated or repealed, the
amending power is subject to implied limitations. They held that Parliament has no power to
abrogate or emasculate the basic elements or fundamental features of the Constitution.14
In their conclusion they held that15
Though the power to amend the Constitution under Article 368 is a very wide
power, it does not yet include the power to destroy or emasculate the basic
elements or the fundamental features of the Constitution.

12

(1973) 4 SCC 225, 454, para 582.

(1973) 4 SCC 225, 462, para 608 (b) & (c).
14
(1973) 4 SCC 225, 481, paras 651, 654; (1973) 4 SCC 225, 486, para 666.
15
(1973) 4 SCC 225, 512, para 744 (3).
13

3|Page

Observations of Justice Ray:

Justice Ray observed that there are no express or implied limitations to the power of
amendment. Following which he remarked, the power to amend is wide and unlimited.16
He also dismissed the distinction between essential and in-essential features of the
Constitution. However, he observed that, an amendment would leave an organic mechanism
providing the Constitution organization and system for the Stateorderly and peaceful
changes in a Constitutional manner would absorb all amendments to all provisions of the
Constitution which in the end would be an amendment of this Constitution.17

Observations of Justice Reddy:

Justice Jaganmohan Reddys judgment is concurring with Chief Justice Sikhris judgment
and he also observes that essential elements constituting the basic structure which cannot be
amended.18
In his conclusion he held,19
Although the power of amendment is wide, it is not wide enough to totally
abrogate or emasculate or damage any of the fundamental rights or the essential
elements in the basic structure of the Constitution or of destroying the identity of
the Constitution.

Observations of Justice Palekar:

His Lordship in his conclusion observed,20
(1) An Amendment of the Constitution abridging or taking away a fundamental
right conferred by Part III of the Constitution is not void
(2) There were no implied or inherent limitations on the Amending power under
the unamended Article 368 in its operation over the fundamental rights. There
can be none after its amendment.

16

(1973) 4 SCC 225, 593, Para 1064.

(1973) 4 SCC 225, 593, para 1064.
18
(1973) 4 SCC 225, 637, para 1159.
19
(1973) 4 SCC 225, 666, para 1212 (2).
20
(1973) 4 SCC 225, 726, para 1333.
17

4|Page

Observations of Justice Khanna:

Justice Khanna held that limitations on the amending power only arose only from the word
amendment. He observes, I am further of the opinion that amendment of the Constitution
necessarily contemplates that the Constitution has not to be abrogated but only changes have
to be made in it. The word amendment postulates that the old Constitution survives
without loss of its identity despite the change and continues even though it has been subjected
to alterations. As a result of the amendment, the old Constitution cannot be destroyed and
done away with; it is retained though in the amended form Although it is permissible under
the power of amendment to effect changes, howsoever important, and to adapt the system to
the requirements of the changing conditions, it is not permissible to touch the foundation or
to alter the basic institutional pattern. The words amendment of the Constitution with all
their wide sweep and amplitude cannot have the effect of destroying or abrogating the basic
structure or framework of the Constitution.21
Apart from the limitations arising from the word amendment, Justice Khanna found no
inherent or implied limitations on the amending power unlike the other 6 judges. 22 He
rejected the theory that the contention that the core of Fundamental Right could not be
amended.23 He also rejected the arguments that the Preamble of the Constitution could not be
amended at all.24
In his conclusions summarizing his judgment, Justice Khanna held,25
(vii)

The power of amendment under Article 368 does not include the power

to abrogate the Constitution nor does it include the power to alter the basic
structure or framework of the Constitution.
(ix)

There are no implied or inherent limitations on the power of

amendment apart from those which inhere and are implicit in the word
amendment.

21

(1973) 4 SCC 225, 767, para 1426; (1973) 4 SCC 225, 776, para 1445.
(1973) 4 SCC 225, 776-777, paras 1444, 1446, 1477.
23
(1973) 4 SCC 225, 784, para 1464.
24
(1973) 4 SCC 225, 787, para 1471.
25
(1973) 4 SCC 225, 824, paras (vii) & (ix).
22

5|Page

Observations of Justice Mathew:

Justice Mathew in observed that the power to amend under Article 368 is plenary in
character and extended to all the provisions of the Constitution. However, he similar to
Justice Ray affirmed that, The only limitation is that the Constitution cannot be repealed or
abrogated in the exercise of the power of amendment without substituting a mechanism by
which the State is constituted and organized. That limitation flows from the language of the
article itself.26

Observations of Justice Beg:

Justice Beg held there were no limitations on the power of Parliament to amend the
Constitution and in this regard observed, in such a Constitution as ours, we must strongly
lean against a construction which may enable us to hold that any part of the Constitution is
exempt from the scope of Article 368 as originally framed.27

Observations of Justice Dwivedi:

Justice Dwivedi in his judgment remarked, the phrase amendment of this Constitution is
the nerve-center of Article 368. The words this Constitution in the phrase embrace the
entire Constitution. 28 Further, the denial of power to make radical changes in the
Constitution to the future generation would invite the danger of extra Constitutional changes
of the Constitution.29
His Lordship went to an extent to put on record that, it may be that Parliament may not be
able to annihilate the entire Constitution by one stroke of pen. But it can surely repeal or
abrogate all provisions in Part III. Article 368 permits Parliament to apply not only the
physicians needle but also the surgeons saw. It may amputate any part of the Constitution if
and when it becomes necessary so to do for the good health and survival of the other parts of
the Constitution.30
In his conclusion summarizing his judgment, he observed, 31

26

(1973) 4 SCC 225, 897, para 1784.

(1973) 4 SCC 225, 910, para 1825.
28
(1973) 4 SCC 225, 927, para 1879.
29
(1973) 4 SCC 225, 930, para 1890.
30
(1973) 4 SCC 225, 933, para 1899.
31
(1973) 4 SCC 225, 959, para 1955.
27

6|Page

(2) The word amendment in Article 368 is broad enough to authorise the
varying, repealing or abrogating of each and every provision in the Constitution
including Part III.
(3) There are no inherent and implied limitations on the amending power in
Article 368.

Observations of Justice Chandrachud:

Justice Chandrachud in his judgment observed that, the word amendment in Article 368
has a clear and definite import and it connotes a power of the widest amplitude to make
additions, alterations or variations No express restraint having been imposed on the power
to amend the amending power, it is unnecessary to seek better evidence of the width of the
power of amendment under our Constitution.32 Further, Article 368, manifestly, does not
impose any express limitations.The power of amendment is a safety valve and having
regard to its true nature and purpose, it must be construed as being equal to the need for
amendment. The power must rise to the occasion. 33
In his conclusion summarizing his judgment, he observed,34
(4) The power of amendment of the Constitution conferred by the then Article 368
was wide and unfettered. It reached every part and provision of the Constitution.
(6) There are no inherent limitations on the amending power in the sense that the
Amending Body lacks the power to make amendments so as to damage or destroy
the essential features or the fundamental principles of the Constitution.
THE ANALYSIS OF JUDGMENTS IN KESAVANANDA BHARATI AND BASIC
STRUCTURE DOCTRINE:

The eleven judgments delivered by the thirteen judges with respect to their observations
regarding power of Parliament to amend the Constitution under Article 368 can be classified
into three categories, namely, judgments identifying inherent and implied limitation under
Article 368; judgments identifying no limitations on amending power under Article 368 and
judgment delivered by Justice Khanna which belong to neither of the above category.
32

(1973) 4 SCC 225, 981, para 2059.

(1973) 4 SCC 225, 981, para 2060.
34
(1973) 4 SCC 225, 1005, para 2142.
33

7|Page

The judgments delivered by Chief Justice Sikri, Justices Shelat and Grover, Hegde and
Mukherjea and Jagannathan Reddy belonged to the first category and they held that the
amending power was limited by various inherent and implied limitations in the Constitution
including Fundamental Rights. Six other judges Justices A.N. Ray, Palekar, Mathew,
Dwivedi, Beg, and Chandrachud belonged to second category and in six separate judgments
held that there were no limitations on the amending power of Parliament. The judgment
delivered by Justice Khanna belonged to neither of the above category, expressly rejected the
view of the six Sikri-led judges that there were inherent or implied limitations on the
amending power. Justice Khanna held that the amending power was plenary in every sense,
but the word amendment in Article 368 by its limited connotation did not lend itself to
abrogating the Constitution. Any amendment to the Constitution had necessarily to retain
the basic structure and framework of the Constitution after the amendment and cannot have
the effect of destroying or abrogating the basic structure or framework of the Constitution.35

On closer analysis of the judgments delivered by Sikri-led judges who held that the amending
power was limited by various inherent and implied limitations in the Constitution, did not
refer to basic structure doctrine. They in their conclusions observed that Article 368 did not
include the power to damage, abrogate, emasculate, destroy, or change or alter the
basic features/elements fundamental features, or framework of the Constitution.36 The
term basic structure was used only by Justice Khanna, which was lifted by Chief Justice
Sikri and adopted in his view of the majority.37

Immediately after the case was decided, Palkhivala the leading counsel who had appeared for
the Petitioners analyzed the judgements of the Kesavananda case wrote, Six judges decided
the case in favour of the citizen and six in favour of the State. Justice Khanna agreed with
none of these 12 judges and decided the case midway between the two conflicting viewpoints.
Thus by a strange quirk of fate the judgment of Justice Khanna with whom none of the other
judges agreed has become the law of the land.38

35

T. R. ANDHYARUJINA, THE KESAVANANDA BHARATI CASE: THE UNTOLD STORY OF STRUGGLE FOR SUPREMACY
SUPREME COURT AND PARLIAMENT 42 (2011).
36
SUDHIR KRISHNASWAMY, DEMOCRACY AND CONSTITUTIONALISM IN INDIA: A STUDY OF THE BASIC
STRUCTURE DOCTRINE 27 (2009).
37
T. R. ANDHYARUJINA, THE KESAVANANDA BHARATI CASE: THE UNTOLD STORY OF STRUGGLE FOR SUPREMACY
BY SUPREME COURT AND PARLIAMENT 47 (2011).
38
Nani A. Palkhivala, Fundamental Rights Case: Comment, (1973) 4 SCC (Jour) 57, 59.
BY

8|Page

This view of the majority and specifically, basic structure doctrine has become the law of
the law, and hence, inevitably regarded as the ratio of Kesavananda Bharti case. The view
of the majority, itself, was discredited by Seervai and Rajiv Dhavan along with many others.
Seervai believed, there was an unbridgeable gap between the concepts and lines of
reasoning of Justice Khanna and the six judges.39 He further submitted that the summary
signed by nine judges has no legal effect at all- this even in the revision of his book in which
he accepted Kesavananda as law.40 Rajeev Dhavan observed that even the nine judges who
subscribed to some versions of the doctrine of implied limits did not do so for the same
reasons.41

T. R. Andhyarujina, Senior Advocate, in his recent book on Kesavananda Bharati case

writes, The View of the Majority cannot be the ratio of the Kesavananda judgment. If a
ratio had to be extracted from the eleven judgments in the Kesavananda case it could not
have been done in the manner of asking judges to merely subscribe to The View of Majority
paper on the day of pronouncement of the judgments in Court. Deriving a ratio from the 11
judgments could have been done only after a full hearing by a later Constitution Bench to
which the Petitions were remanded for disposal according to the unanimous Order of the
Court. No later Constitution Bench to dispose of the petitions was convened to dispose off the
petitions. Alternatively, the ratio could have been extracted by any later bench from the
differing judgments as had been done in other cases. He further remarks, Look whatever
way, there was no majority view, no decision and no ratio in Kesavananda case that
Parliament could not amend the basic structure or framework of the Constitution. This was
only the conclusion of Justice Khanna. By a strategic roping in of his view in with six other
judges The View of the Majority a majority of 7 Judges to 6 was created and approved by
nine judges.42

In judgment subsequent to Kesavananda Bharati, no attempt was made to find the ratio of
the case. In Indira Gandhi v. Raj Narain,43 Chief Justice Ray observed, It should be stated
39

T. R. ANDHYARUJINA, THE KESAVANANDA BHARATI CASE: THE UNTOLD STORY OF STRUGGLE FOR SUPREMACY
SUPREME COURT AND PARLIAMENT 47 (2011).
40
GRANVILLE AUSTIN, WORKING A DEMOCRATIC CONSTITUTION: A HISTORY OF THE INDIAN EXPERIENCE 268
(1999).
41
SUDHIR KRISHNASWAMY, DEMOCRACY AND CONSTITUTIONALISM IN INDIA: A STUDY OF THE BASIC
STRUCTURE DOCTRINE 27 (2009).
42
T. R. ANDHYARUJINA, THE KESAVANANDA BHARATI CASE: THE UNTOLD STORY OF STRUGGLE FOR SUPREMACY
BY SUPREME COURT AND PARLIAMENT 56 (2011).
43
(1975) Suppl. SCC 1.
BY

9|Page

here that the hearing has proceeded on the assumption that it is not necessary to challenge
the majority view in Kesavananda Bharati case 44
Chief Justice Chandrachud, in Minerva Mills v. Union of India45 observed, The summary of
the various judgements in Kesavananda Bharati was signed by nine out of the thirteen
Judges. Paragraph 2 of the summary reads to say that according to the majority, Article
368 does not enable Parliament to alter the basic structure or framework of the
Constitution. Whether or not the summary is a legitimate part of the judgement, or is per
incuriam for the scholarly reasons cited by authors, it is undeniable that it correctly reflects
the majority view.46
Justice Bhagwati in his separate opinion in Minerva Mills v. Union of India47observed that
the view of the majority in Kesavananda Bharati case has no legal effect, however, he
proceeded on the basis of the view taken in Indira Gandhi case as regards the ratio of the
majority decision in Kesavananda Bharti case.48

Subsequent judgments have ritualistically repeated that Kesavananda Bharati had held that
the amending power of Parliament was limited by the basic structure of the Constitution
without examining whether there was a ratio to this effect from the eleven judgments in the
case. 49 Granville Austin says that in this way the nine judges performed an act of
statesmanship, even of legerdemain.50

44

(1975) Suppl. SCC 1, 35.

(1980) 3 SCC 625.
46
(1980) 3 SCC 625, 641.
47
(1980) 3 SCC 625.
48
(1980) 3 SCC 625, 669.
49
T. R. ANDHYARUJINA, THE KESAVANANDA BHARATI CASE: THE UNTOLD STORY OF STRUGGLE FOR SUPREMACY
BY SUPREME COURT AND PARLIAMENT 59 (2011).
50
GRANVILLE AUSTIN, WORKING A DEMOCRATIC CONSTITUTION: A HISTORY OF THE INDIAN EXPERIENCE 276
(1999).
45

10 | P a g e

CONCLUSION

Technically, it is hard to decipher the ratio of Kesavananda Bharati and so is to accept the
fact, that view of majority was indeed the ratio of the case. In spite of the severe criticism
of the so-called view of the majority, the acceptance of basic structure doctrine in cases
subsequent to Kesavananda Bharati this view of the majority is the law of India, clearly and
emphatically expressed. In words of Granville Austin, the basic structure doctrine is fairly
said to have become the bedrock of the constitutional interpretation in India.

11 | P a g e

REFERENCES

CASES
i.
ii.
iii.

Indira Gandhi v. Raj Narain, (1975) Suppl. SCC 1.

Kesavananda Bharati & Others v. State of Kerala & Others, (1973) 4 SCC 225.
Minerva Mills v. Union of India, (1980) 3 SCC 625.

BOOKS
i.

GRANVILLE AUSTIN, WORKING

DEMOCRATIC CONSTITUTION: A HISTORY

OF THE

INDIAN EXPERIENCE (1999).

ii.

SUDHIR KRISHNASWAMY, DEMOCRACY AND CONSTITUTIONALISM

OF THE BASIC STRUCTURE DOCTRINE

iii.

IN INDIA:

A STUDY

(2009).

T. R. ANDHYARUJINA, THE KESAVANANDA BHARATI CASE: THE UNTOLD STORY

OF

STRUGGLE FOR SUPREMACY BY SUPREME COURT AND PARLIAMENT (2011).

ARTICLES
i.

Joseph Minattur, The Ratio in Kesavananda Bharati Case, (1974) 1 SCC (Jour) 73.

ii.

K. Subba Rao, The Two Judgments: Golaknath and Kesavananda Bharati, (1973) 2
SCC (Jour) 1.

iii.

Nani A. Palkhivala, Fundamental Rights Case: Comment, (1973) 4 SCC (Jour) 57.

iv.

P. K. Tripathi, Kesavananda Bharati v. The State of Kerala- Who wins?, (1974) 1

SCC (Jour) 3.

v.

Upendra Baxi, The Constitutional Quicksands of Kesavananda Bharati and the

Twenty-Fifth Amendment, (1974) 1 SCC (Jour) 45.

12 | P a g e