Kesavananda Bharati: why Parliament cannot change the Constitution's basic structure
In 1973 a 13-judge bench held, by 7 to 6, that Parliament can amend any part of the Constitution but cannot destroy its basic structure. The doctrine still limits every constitutional amendment.
- Case
- Kesavananda Bharati Sripadagalvaru v. State of Kerala
- Court
- Supreme Court of India
- Bench
- 13-judge bench presided over by S.M. Sikri, C.J.
- Decided
- 24 April 1973
- Case number
- W.P. (Civil) No. 135 of 1970
- Citation
- (1973) 4 SCC 225; AIR 1973 SC 1461
In 30 seconds
- Parliament’s power to amend the Constitution under Article 368 is wide, but it cannot alter the Constitution’s basic structure.
- The decision was by a majority of 7 to 6, the largest bench the Supreme Court has ever sat.
- It overruled Golak Nath v. State of Punjab (1967), which had held that Parliament could not amend fundamental rights at all.
Background
Kesavananda Bharati, head of a math (religious institution) in Kerala, challenged Kerala land reform laws that restricted the math’s property. The case grew into a challenge to the constitutional amendments of the early 1970s, which Parliament had passed to widen its power to amend fundamental rights and to limit judicial review.
The issue
Is Parliament’s power to amend the Constitution unlimited, or are there parts of the Constitution that no amendment can take away?
What the Court held
The majority held that Article 368 lets Parliament amend any provision of the Constitution, including fundamental rights, but not in a way that destroys its basic structure or essential features. The judges gave examples rather than a closed list, such as the supremacy of the Constitution, the republican and democratic form of government, its secular character, the separation of powers and its federal character.
The Court upheld the 24th Amendment, which confirmed Parliament’s power to amend fundamental rights. It struck down the part of the 25th Amendment that tried to shut out courts from reviewing certain laws.
Why it matters
The basic structure doctrine has been applied ever since to test constitutional amendments, including in Indira Nehru Gandhi v. Raj Narain (1975) and Minerva Mills v. Union of India (1980). Judicial review and free and fair elections are among the features later recognised as part of the basic structure.
Key terms
Basic structure: the core features of the Constitution that an amendment cannot destroy.
Article 368: the provision of the Constitution that sets out Parliament’s power and procedure to amend it.