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Author: Ankita Maji,

UPES, Dehradun


The case of Keshavnanda Bharti vs State of Kerala[1], is one of the most historic cases in terms of legal relevancy and constitutionalism. This case is also popularly known as the Fundamental Rights Case, where there was a visible clash between the Parliament and the Judiciary. Keshavananda Bharati Sripadagalvaru, the Kerala seer from Edneer Math, challenged the 29th Amendment Act 1972 of the Constitution questioning Kerala government’s power to impose restrictions on management of its property (math) under the Land Reforms Act, 1963. The main issue that arose was whether Parliament had the power to amend the Constitution, specifically Part Ⅲ which incorporates the Fundamental Rights. A 13 judge bench presided over this case, and delivered the judgement by a 6:7 majority, where the Court held that the ‘basic structure’ of the Constitution was unalterable, and therefore cannot be amended by the Parliament. The basic structure doctrine has been regarded as a fundamental part of the Indian constitution since then.


There were a number of cases wherein the Court had passed several decisions with regard to the power of the Parliament to amend the Constitution, which were also reviewed by the judiciary while deciding upon this case.

After independence, a series of reforms were passed, which violated the fundamental rights of the people, specifically the Right to Property, as a result of which they were challenged. The (First Constitutional Amendment Act) 1951 was passed by the government to protect such reforms. In the case of Shankari Prasad vs Union of India[2] the (First Constitutional Amendment) Act, 1951 was challenged. The court drew a clear distinction between ordinary laws and constitutional amendment and held that the Parliament under Article 368, had the power to amend Part Ⅲ of the Constitution including fundamental rights. A similar judgement was also passed in the case of Sajjan Singh vs State of Rajasthan[3].

However, in the case of Golak Nath vs state of Punjab (1967), the court overruled its earlier decisions, and held that the amendment power of the Parliament cannot take away the Fundamental Rights as they are transcendental and immutable, and that Article 368 is mainly procedural and does not confer any absolute rights on the Parliament. In C Cooper vs Union of India[4] the Court struck down the Bank Nationalization Act, 1969 because of the compensation component of the enactment, and upheld the right of Parliament to nationalise banks while in the case of Madhav Rao Scindia v. Union of India[5], the court struck down the presidential order.

In order to disregard the decisions held in the above three cases, the government enacted two major amendments to the constitution. The 24th Constitutional (Amendment) Act, 1971- which gave the Parliament the power to amend any part of the Constitution and the 25th Constitutional (Amendment) Act, 1972 through which the right to property was removed as a fundamental right.


Swami Sripad Kalvaru Keshavananda Bharti was the head of a Hindu Math, situated in Edneer village of Kerala. There were several sectors of land under his religious property. The state government, in order to fulfil its socio-economic obligations demanded to acquire those lands under the Kerala Land Reforms Act, 1963, which was challenged by Keshavnanda Bharti under the Constitutional 24th, 25th and 29th Amendment Act, which was passed by the government to give the Parliament absolute right to amend the Constitution, and filed a petition in 1970 in the apex court. The petitioner claimed the enforcement of fundamental rights under Articles 14, 19 (1) (f), 25, 26, 31 of the Constitution and that the power of the Parliament with respect to amending the Constitution is limited, while the State i.e., the respondent in this case held that the Parliament has an absolute power to amend the Constitution.

The bench held that the power of the Parliament to amend the Constitution was not explicitly limited, but it cannot subject the basic structure or features of the constitution to alteration or modification. The bench consisted of 13 judges, wherein 11 separate judgements were pronounced orally. The Court upheld the Land Reforms Act and the amendments that were challenged, and struck down only the second part of 25th Amendment Act of the Constitution as it was ultra vires, including Article 31C which tried to limit the application of judicial review. The court however did not provide any particular definition of the concept of ‘basic structure’ and only stated a few of its contents namely- secularism, federal structure, supremacy of the constitution are a few to begin with.


The term ‘Basic Structure’ is not mentioned anywhere in the Indian constitution. The concept developed gradually as and when the judiciary interfered with the laws and amendments to protect the basic rights of the people and the ideals and the philosophy of the constitution.

Justice J.R. Mudholkar conceptualised the idea of ‘basic features’ of a Constitution for the first time in 1964, in the case of Sajjan Singh v. State of Rajasthan (1965). He said that it is a matter to be contemplated whether any change in the basic feature of the Constitution is to be regarded only as an amendment or would it be seen as rewriting a part of the Constitution; and incase of the latter, would it be within the scope of Article 368?

In India, the basic structure doctrine has become the foundation of judicial review for every law passed by Parliament. No law can infringe the basic structure. However, what forms the basic structure has been a continuing deliberation. While judicial review, fundamental rights, secularism are considered by courts as basic structure, the list is not comprehensive in nature.


A lot of controversy surrounded the judgement, and this decision was met with a lot of opposition by the government, wherein a bench of 13 judges was constituted to review the Keshavnanda Bharti case, headed by Chief Justice A.N Ray. The bench was unilaterally dissolved as it was found that the review was initiated on an oral request, without any review petition.

Even though this case overruled the Golaknath case, it did not establish the supremacy of the Parliament. It not only recognized fundamental rights, but other provisions of the Constitution as well, and held that if such provisions fall within the basic structure of the Constitution, they cannot be amended. By striking off Article 31(c) in Keshavanand Bharati case, it prevented the State Legislature from exercising power to virtually amend the constitution.

The Keshavananda Bharati case was upheld when the Twenty-fourth amendment act, 1976 which stated that Parliament had the power to amend any or all provisions of the Constitution, was challenged in the case of Minerva Mills v. Union of India[6] and reiterated the doctrine of ‘basic structure’. Also the Court held that certain key words in the Preamble formed a part of the basic structure and declared that this basic structure cannot be infringed thereby limiting the power of the Parliament to amend the Constitution.

Even though this judgement did not provide individual relief to the petitioner, this doctrine of Basic structure has formed the foundation for the judiciary to review or strike off any amendments to the Constitution, made by the Parliament, in case they are inconsistent or in contrary to this doctrine. Courts have interpreted this doctrine to include the rule of law, supremacy of the Constitution, independent judiciary, separation of powers doctrine, federalism, secularism, sovereign, republic, democratic, the parliamentary form of government, free and fair elections and the concept of welfare state.

In Coelho v State of Tamil Nadu[7], the Apex Court held that every law and provision of the constitution is either directly or indirectly connected to the fundamental rights, and are therefore a part of the basic structure. Henceforth, any element of any law subjected to amendment should be examined and should not alter any of the basic structure of the constitution.

The provision of amendment was included in the Constitution by the Constitution makers to help India adjust itself to the changing circumstances. A society can never be stagnant in nature. This was the reason that the amending procedure was made partly flexible to make it easy for the Legislature. However, the Parliament started acting in an arbitrary manner considering that it has unlimited amending power. It considered itself as the supreme law of the land when in reality it is the Constitution which is the supreme law. The Parliament made amendments which destroyed the basic structure of the Indian Constitution. The landmark decision of Keshavnand Bharati, the Court by its power of judicial review has curtailed the amending power of the Parliament.


Over the years, the Court has been applying this doctrine to several legislations, either directly or indirectly. In the case of Indira Sawhney v. Union of India[8], the reservation for appointments or posts for services under the State for the creamy layer was held to be violative of the basic structure. In S.R. Bommai. v. Union of India[9], the Court said that policies of a state government which are against any feature of the Basic Structure of the Constitution is a rational ground for the exercise of the central power under article 356, i.e., imposition of the President’s rule. The fact that the doctrine of basic structure is essential to the idea of Constitutionalism in India as has been already proved during the government of Indira Gandhi where this doctrine acted as the shield between an all-powerful Parliament and the people, owing to legislative immoderation by the heedless usage of article 368.

The Judiciary has played an important role in interpretation of the Constitution of India and has tried to uphold this basic doctrine structure through the system of checks and balances. Unlimited power in the hands of any authority will pose a threat to the democracy, therefore separation of power as well as the system of checks and balances in a democracy is needed to prevent abuse of power and to safeguard the freedom of everyone. Before the case of Keshavnanda Bharti, almost 30 amendments had been passed ever since the Constitution came into effect in 1950. After this case, there have been almost 70 more amendments to the Constitution. Despite the large number of amendments, the basic spirit of the Constitution remains intact till date, and the case of Keshavnanda Bharti has played a huge role in it.

[1] AIR 1973 SC 1461. [2] 1951 AIR 458 [3] 1965 AIR 845 [4] AIR 1970 SC 564. [5] AIR 1971 SC 530 [6] 1980 AIR 1789 [7] AIR 2007 SC 861 [8] (2000) 1 SCC 168 [9] (1994) 3 SCC 1

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