Kesavananda Bharati Case-SC

Friends, today I am writing about a Supreme Court (SC) case that is more than five decades old, and after which many things changed in the country’s political scenario.

In February 1970, Swami Kesavananda Bharti, head of the Hindu Monastery   Edneer Matha in Edneer, Dist Kesaragod, Kerala Matha, challenged the Kerala Governments attempts under two land reforms acts, to impose restrictions on the management of its property. A very senior jurist, convinced Swami into filing his petition under Article 26, concerning the right to manage religiously owned property without government interference. The case was heard for 68 days, the arguments commencing on 31^st October 1972, and ending on 23^rd March 1973, and its judgment consists of 700 Pages.

This case was heard by a bench of 17 judges of the SC, making it one of the largest benches in Indian legal history. The bench comprised of Chief Justice SM Sikri, Justices JM Shelat ,KS Hegde, AN Grover, AN Ray, P Jagamohan Reddy, DG Palekar, HR Khanna, KK Mathew, MH Beg, SN Dwivedi, AK Mukherjee and YD Chandrachud.

This case overturned a previous ruling of the case of Gokalnath vs State of Punjab (1967), which held that constitutional amendments through Article 368 were subject to fundamental rights review, but only if they could affect the ‘basic structure of the Constitution’. At the same time, the court upheld that the constitutionality of the first provision of Article 31-c, which implies that laws seeking to implement the Directive Principles, which do not affect the  ‘Basic Structure’ shall not be subjected to judicial review. This doctrine form the basis of power of the Indian judiciary to review and override amendments to the Constitution of India enacted by the Indian Parliament.

Nani Palkhiwala, assisted by Fali Nariman and Soli Sorabjee presented the case against the government.

The petitioner Bharati  had moved the SC to enforce the rights that were guaranteed to him under:

1 Aticle 25-Right to practice and propagate religion.

2 Article 26- Right to manage religious affairs.

3 Article 14- Right to equality.

4 Article 19(1)(f)-Freedom to acquire property.

Article 31- Compulsory acquistion of property

Contentions of the Petitioners

• Petitioners contented that the Parliament can’t amend the Constitution in a manner they want as their power to do this is limited. The Parliament cannot amend the Constitution to change the basic structure.
• They argued that the 24^th & 25^th Constitutional Amendments were violative of the fundamental rights provided in Article 1991)(f).

Contentions of the Respondents

• The government said that the Parliament’s supremacy is the Indian legal system’s basic structure and hence, it has boundless power to amend the Constitution. The respondents stressed that in order to fulfil socio-economic obligations the unlimited power of the Parliament to amend the Constitution must be upheld.

The Judgment

The landmark judgment was delivered on 24^th April 1973 by 7-6 majority, wherein the majority held that any provision of the Indian Constitution can be amended by the Parliament to fulfil its socio-economic obligations that were guaranteed to the citizens as given in the Preamble, provided that such amendment did not change the Constitution’s basic structure. The minority, however, in their dissenting opinion, were wary of giving the Parliament unlimited amending power.

The basic structure doctrine states that the Parliament has limitless power to amend the Constitution subject to the condition that such amendments should not change the Constitution’s basic structure.

Judges who were part of majority judgment were CJ SM Sikri, Justices KS Hegde, AK Mukherjee, JM Shelat, AN Grover, Jaganamohan Reddy, and HR Khanna, and the dissenting judges were Justices AN Ray, DG Palekar, KK Mathew, MH Beg, SN Dwivedi and YD Chandrachud.

Aftermath this Judgment

The government headed by Indira Gandhi did not take kindly to this restriction on its powers by the court. Just two days after this judgment, on 26^th April Justices AN Ray, who was among dissenters, were promoted to Chief justice of India superseding three senior judges JM Shelat, AN Grover and KS Hegde, which was unprecedented in India legal history.

The 42^nd Amendment, enacted in 1976, is considered to be the immediate and most direct fall out of the judgment.

I the 1980 case (Indira Gandhi vs Raj Narain) a Constitution Bench of the SC used thee basic structure doctrine to strike down the 39^th Amendment, which was passed in 1975 during The Emergency and placed the election of the President, the Vice President, the Prime Minister and the Speaker of the Lok Sabha beyond scrutiny of the Indian courts. Adopting this amendment was a move to suppress Indira Gandhi’s prosecution.

Friends, the outcome case proves that Congress government headed By Indira Gandhi, and how she treated the judiciary during her days, and the same continued in Congress Party’s later governments also.

Waiting for your views on this blog.

Anil Malik

Mumbai, India

25^th August 2025.