Author: Aaditya Mittal, Fairfield Institute of Management and Technology, GGSIPU
There are judgments that decide a case, and then there are judgments that decide what kind of country you live in. Kesavananda Bharati Sripadagalvaru v. State of Kerala belongs firmly in the second category. It runs to over seven hundred pages, was argued for sixty-eight working days across roughly five months, and was authored, in eleven separate opinions, by a bench of thirteen judges — the largest ever assembled by the Supreme Court of India. And yet its holding can be stated in a single sentence: Parliament can amend any part of the Constitution, including the Fundamental Rights, but it cannot use that power to destroy the Constitution’s basic structure. That one sentence, decided by the narrowest of margins, has quietly governed the boundary between constitutional change and constitutional destruction for over fifty years.
What makes the case worth revisiting today is not merely its age or its length. It is that the question the Court was wrestling with in 1973 — how much power should an elected majority have to rewrite the document that constrains it — has not gone away. It resurfaces every time a legislature amends an election law, restructures a tribunal, or tinkers with the appointment of judges. Kesavananda Bharati is the case practitioners still reach for when that question needs an answer.
How the Question Arose
The petitioner, Swami Kesavananda Bharati, was the head of the Edneer Mutt in Kasaragod, Kerala. His original grievance had nothing to do with grand constitutional theory. He had approached the Supreme Court under Article 32 in March 1970, contesting restrictions the Kerala Land Reforms Act, 1963 placed on the Mutt’s ability to manage its own properties. It was, at heart, a property dispute dressed in the language of religious and proprietary freedom.
While that petition was pending, Parliament passed three constitutional amendments that transformed the case into something much larger. The Twenty-Fourth Amendmentdeclared, in terms, that Parliament’s power under Article 368 extended to every provision of the Constitution, Fundamental Rights included, and made presidential assent to a constitutional amendment bill mandatory rather than discretionary. The Twenty-Fifth Amendment inserted Article 31C, which shielded laws enacted to give effect to the Directive Principles in Articles 39(b) and (c) from challenge under Articles 14, 19 or 31 — and, more troublingly, purported to bar courts from even examining whether a given law genuinely gave effect to those Directive Principles. The TwentyNinth Amendment inserted certain Kerala land reform statutes into the Ninth Schedule, placing them beyond judicial reach altogether.
Read together, these amendments were Parliament’s direct response to an uncomfortable precedent it had suffered three years earlier.
The Shadow of Golak Nath
To understand why the government felt compelled to legislate so aggressively, one has to go back further, to a trilogy of cases on the amending power. In Sri Sankari Prasad Singh Deo v. Union of India, decided in 1952, the Court had held that a constitutional amendment is not “law” within the meaning of Article 13(2), and therefore Fundamental Rights could be amended like any other part of the Constitution. Sajjan Singh v. State of Rajasthan reaffirmed that position in 1965, though two judges on that bench, writing separately, wondered aloud whether it deserved reconsideration.
Reconsideration came in 1967. In I.C. Golak Nath v. State of Punjab, a slender 6:5 majority overturned Sankari Prasad and Sajjan Singh. Chief Justice Subba Rao held that Article 368 merely prescribed the procedure for amendment; it did not itself confer the substantive power to amend. That power, he reasoned, had to be located in Parliament’s ordinary legislative competence, which meant a constitutional amendment was indeed “law” under Article 13(2) and could not abridge Fundamental Rights. To avoid unsettling amendments already made, the Court applied the doctrine of prospective overruling — an American import being used in India for the first time — so that the ruling would bind only future amendments.
Golak Nath was, by most accounts, an uneasy compromise. It answered the immediate question but left the deeper one dangling: if Fundamental Rights were now untouchable, was the rest of the Constitution equally immune, or could Parliament rewrite everything else at will? The government’s response was legislative rather than doctrinal — amend the Constitution to expressly overrule Golak Nath. That is precisely what the Twenty-Fourth Amendment attempted, setting up the confrontation that would play out in Kesavananda Bharati.
The Questions Before the Thirteen Judges
Stripped of its many subsidiary arguments, the reference before the Court turned on four questions. Was Golak Nath correctly decided? Did Article 368 confer an unlimited power to amend any part of the Constitution, Fundamental Rights included? Were the Twenty-Fourth, Twenty-Fifth and Twenty-Ninth Amendments valid? And, most fundamentally, did the word “amend” in Article 368 carry any implied ceiling at all, or was its only limit the procedure by which it was exercised?
Counsel for the petitioners — a formidable array including N.A. Palkhivala, who is widely credited with shaping the intellectual architecture of the eventual majority view — argued that a Constitution which conferred rights meant to outlast any single Parliament could not simultaneously contain the seeds of its own destruction. If Article 368 were read as an unlimited power, they contended, nothing would stop a determined majority from abolishing elections, suppressing dissent, or replacing the republic with one-party rule, so long as the correct procedural boxes were ticked. The State, represented among others by H.M. Seervai, argued the opposite: that reading unwritten limitations into an express constitutional text was itself a form of judicial overreach, and that the amending power, being an expression of the people’s constituent will exercised through their elected representatives, ought not to be second-guessed by unelected judges.
The Judgment: A Doctrine Born of a Single Vote
The Court split 7:6. Chief Justice Sikri, along with Justices Shelat, Grover, Hegde, Mukherjea, Jaganmohan Reddy and Khanna, formed the majority that gave the world the basic structure doctrine. Justices Ray, Palekar, Mathew, Beg, Dwivedi and Chandrachud dissented, holding that Article 368 imposed no implied limitation on Parliament’s power at all.
The majority’s reasoning, though expressed in eleven separate opinions with meaningfully different emphases, converged on a few propositions. First, Golak Nath was overruled on the narrow point that a constitutional amendment could never touch Fundamental Rights — Parliament could indeed amend Part III. Second, and this was the innovation, the word “amend” was held to carry an inherent limitation: it permitted change, even radical change, but not the destruction of the Constitution’s identity. An amendment that abrogated or effaced what the majority called the “basic structure” or “basic features” of the Constitution would, on this reasoning, not be an amendment at all — it would be a repeal masquerading as one, and therefore outside the power Article 368 actually confers.
None of the majority judges produced, or purported to produce, an exhaustive list of what counts as basic structure. Different opinions offered different illustrative catalogues: the supremacy of the Constitution; the republican and democratic form of government; the secular character of the State; the separation of powers between the legislature, executive and judiciary; the federal character of the Constitution; and the dignity of the individual secured through the Fundamental Rights read together with the Directive Principles. The deliberate open-endedness of the list has been both the doctrine’s greatest strength and its most persistent target for criticism — a point this article returns to below.
Justice H.R. Khanna’s opinion deserves particular attention, because his was the seventh and decisive vote, and because his formulation proved the most durable. Khanna J. did not join the other six majority judges on every point. He accepted that Parliament could amend Fundamental Rights, and in that sense stood apart from Sikri C.J.’s framing. But he held that the power to amend could not extend to abrogating the Constitution or altering its identity so fundamentally that it ceased to be recognisably the same instrument. It is Khanna J.’s test — amendment as change within continuity, not change as destruction — that later benches would treat as the authoritative statement of the doctrine.
On the specific amendments in issue, the Court upheld the Twenty-Fourth Amendment in its entirety, confirming Parliament’s power to amend Part III. On Article 31C, the Court drew a sharp line: the substantive protection for laws implementing Articles 39(b) and (c) was upheld, but the clause barring judicial review of whether a law genuinely gave effect to those Directive Principles was struck down, since ousting the courts’ power of review was itself held to damage the basic structure. The validity of the Ninth Schedule insertions under the Twenty-Ninth Amendment was largely left open, to be tested against the same yardstick as and when individual laws were challenged.
Why the Doctrine Survived — and Grew
A judgment decided by one vote, on a bench that could not agree on what it had decided, might reasonably have been expected to fade. Indian constitutional history took the opposite course. Within two years, the basic structure doctrine was tested in the most politically charged setting imaginable. In Indira Nehru Gandhi v. Raj Narain, decided during the Emergency, the Court struck down clause (4) of the Thirty-Ninth Amendment, which had sought to place the Prime Minister’s own election beyond judicial scrutiny. Free and fair elections, the Court held, were part of the basic structure, and no amendment, however procedurally impeccable, could exempt a head of government from that discipline.
Minerva Mills Ltd. v. Union of India pushed the doctrine further in 1980. Sections of the FortySecond Amendment had attempted to give Directive Principles complete primacy over Fundamental Rights and to strip courts of the power to review constitutional amendments on the ground of basic structure violation. The Court struck both attempts down, holding that the harmonious balance between Part III and Part IV was itself part of the Constitution’s basic structure, and — in a move of striking self-referential logic — that the limited nature of the amending power was itself a basic feature, so that Parliament could not use a limited power to confer upon itself an unlimited one. Waman Rao v. Union of India then fixed 24 April 1973, the date of the Kesavananda Bharati judgment, as the cut-off after which Ninth Schedule insertions would themselves be open to basic structure review, a principle reaffirmed and strengthened by the nine-judge bench in I.R. Coelho v. State of Tamil Nadu in 2007. Most recently, the doctrine underpinned the 2015 ruling striking down the National Judicial Appointments Commission, where judicial independence was held to be a basic feature that the Ninety-Ninth Amendment could not compromise.
A Fair Critique
It would be incomplete to treat the doctrine as beyond reproach, and a practitioner ought to know its weaknesses as well as its uses. The most enduring criticism is that the basic structure has never been comprehensively defined, and probably cannot be, since each bench adds to the list according to the facts before it. Critics have long argued this converts an unelected judiciary into a permanent constitutional revision committee, deciding by accretion what earlier constituent assemblies and later Parliaments could not settle by consensus. There is also a more technical objection: nothing in the text of Article 368 supports an implied limitation of this kind, and the majority’s reasoning has been described by scholars, not unfairly, as an exercise in constitutional construction that reads a great deal into very little language.
The doctrine’s defenders respond that written constitutions the world over rely on some form of eternity clause or entrenched core, whether express, as in Germany, or judicially implied, as in India, and that a Constitution without any such floor is functionally indistinguishable from an ordinary statute subject to majority whim. Fifty years on, the debate has not been resolved so much as institutionalised: the basic structure doctrine is now simply how Indian constitutional law works, whatever one thinks of its origins.
Conclusion
For a case that began as a dispute over the management of a mutt’s paddy fields in Kasaragod, Kesavananda Bharati travelled a long way. It settled, at least for practical purposes, a question that had occupied the Supreme Court through three earlier rounds of litigation, and it did so by drawing a line that has held for half a century despite enormous political pressure to erase it, most visibly during the Emergency. Whatever view one takes of its textual pedigree, the basic structure doctrine has functioned as the outer wall of Indian constitutionalism — the one boundary that no parliamentary majority, however large, has yet been able to breach. For students and practitioners of constitutional law, the case remains not just a precedent to be cited but a template for how courts, at their most self-aware, reason about the difference between changing a constitution and consuming it.
Frequently Asked Questions
Q1. Did Kesavananda Bharati actually win his case?
Not in any meaningful sense. The Court’s attention shifted almost entirely to the constitutional questions surrounding the Twenty-Fourth, Twenty-Fifth and Twenty-Ninth Amendments, and the underlying land reform dispute was effectively left to be governed by the general principles the judgment laid down, rather than decided in the petitioner’s favour on its own facts.
Q2. Is the list of “basic features” fixed, or can courts keep adding to it?
It is deliberately open-ended. The thirteen judges in 1973 offered illustrative, not exhaustive, examples, and subsequent benches — in Indira Gandhi v. Raj Narain, Minerva Mills, and the NJAC judgment among others — have added free and fair elections, the harmony between Fundamental Rights and Directive Principles, and judicial independence to the list. There is no closed catalogue, which is itself the most common criticism levelled against the doctrine.
Q3. Does the basic structure doctrine apply to ordinary legislation, or only to constitutional amendments?
Strictly, the doctrine constrains Parliament’s constituent power under Article 368 — that is, constitutional amendments. Ordinary legislation is tested against the Constitution as it stands, including the Fundamental Rights, through conventional judicial review; it does not need to separately survive a basic structure challenge unless it is itself the product of, or shielded by, a constitutional amendment.
Q4. Can the basic structure doctrine itself be overruled by a larger bench?
In theory, a bench larger than thirteen judges could revisit it, but no such reconsideration has occurred in the fifty-plus years since 1973, and repeated reaffirmation by constitutional benches — most recently in the NJAC case — has entrenched it as settled law. As a practical matter, it is now treated as part of the basic structure of Indian constitutional adjudication itself.
