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CHANAKYA NATIONAL LAW UNIVERSITY

PATNA

KESAVANANDA BHARATI V. STATE OF KERALA

SUBJECT- LEGAL METHODS RESOURCE PERSON- NITEESH Kr UPADHYAYA

INZMAMUL HAQUE 933 (1ST YEAR)

CONTENT:
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. INTRODUCTION.03 ACKNOWLEDGEMENT.04 HYPOTHESIS...04 AIM AND OBJECTIVES....04 RESEARCH METHODOLOGY...04 REFERENCE DETAILS....05 FACTS IN ISSUE06-07 DECISION...07 CONSTITUTIONAL PROVISIONS...07-09 CONCLUSION..10 BIBLIOGRAPHY..11

ACKNOWLEDGEMENT
I am feeling highly elated to work on the topic KESAVANANDA BHARATI V. STATE OF KERALA under the guidance of my political science teacher NITEESH KUMAR UPADHYAYA .I am very grateful to him for his exemplary guidance. I would like to enlighten my readers regarding this topic and I hope I have tried my best to pave the way for bringing more luminosity to this topic. I also want to thank all of my friends, without whose cooperation this project was not possible. Apart from all these, I want to give special thanks to the librarian of my university who made every relevant materials regarding to my topic available to me at the time of my busy research work and gave me assistance. And at last I am very much obliged to the God who provided me the potential for the rigorous research work. At finally yet importantly I would like to thank my parents for the financial support. -----------------Thanking You

Introduction:The Supreme Court laid down the theory of basic structure in this case. According to this theory some of the provisions of the constitution of India form their basic structures which are not amendable by parliament by exercise of its constituent power under article 368. In this case, the validity of 24th, 25th and 29th amendments to the Constitution of India was challenged. The main question related to the nature, extent and scope of amending power of the Parliament under the Constitution. The views of the majority were as follows: (1) L.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643 (which had held that Fundamental rights were beyond the amending powers of Parliament) was overruled; (2) The Constitution (Twenty-fourth Amendment) Act, 1971 (giving power to Parliament to amend any part of the Constitution) was valid; (3) Article 368, as amended, was valid but it did not confer power on the Parliament to alter the basic structure or framework of the Constitution; the court, however, did not spell out in any exhaustive manner as to what the basic Structure/framework was except that some judges gave a few examples. (4) The amendment of Article 368(4) excluding judicial review of a constitutional Amendment was unconstitutional. (5) The amendment of Article 31C containing the words and no law containing a Declaration that it is for giving effect to such policy shall be called in question in any Court on the ground that it does not give effect to such policy was held invalid;1 It was heard by a bench consisting of thirteen judges and till date it was the case having the maximum number of judges in a bench of Supreme Court. The subject matter of the controversy was the scope of the power of the amendment of the constitution under article 368. Nearly three decades ago this case was one of the famous case as we know Kesavananda Bharati v. State of Kerala,2 the Supreme Court exhibiting extreme creativeness and courage on its part came up with the most famous innovation in the Indian constitutional law history. In this case the Supreme Court propounded the famous basic structure and framework of Indian Constitution or doctrine of basic structure

Anonymous, Kesavananda bharati v. state of Kerala, http://www.du.ac.in/fileadmin/DU/Academics/course_material/2012/30812_3_ConstitutionalLaw.pdf, accessed on 22-10-2013 22;29 IST
2

AIR 1973 SC 1461 : (1973) 4 SCC 225

There by halting the legislatures ever extending arm. In this case the Honble Supreme Court also shows the intention of preserving the original ideals of Indian Constitution and also pronounced that the parliament could not distort, disfigure and mutilate the basic features of the Constitution. In this case nine judges signed a summary statement which records the most important conclusion reached by them in this case.3 All judges upheld the validity of of the Twenty-Fourth amendment saying that the Parliament had the power to amend any or all provision of the constitution. However, the Parliament cannot alter the basic structure of the constitution like secularism, democracy, federalism, separation of powers. Often called the "Basic structure doctrine", this decision is widely regarded as an important part of Indian history.4

Hypothesis:After this historic case Honble Supreme Court stated that some of provisions of the constitutions forms the basic structure of which cannot be amended. It was a landmark judgment which overhauled the scenario of fundamental right and consolidated liberty, equality, and fraternity in its truest form.

Research Methodology:The researcher has used the doctrinal and in doctrinal method with empirical research. Doctrinal method includes the books, articles, journals etc. whereas the in doctrinal one includes the online sources like online journals, databases etc.

Aims and objectives:1. To know about the origin and history of the case. 2. To know about the judgment or outcome of the case. 3. To know about the nature of Indian Constitution related to this case.

3 4

His Holiness Kesavananda Bharati Sripadagalavaru v State of Kerala and Another 1973 (4) SCC 225 Anonymous, http://www.civilserviceindia.com/subject/Law/notes/fundamental-right-kesavanda.html, accessed on 23-10-2013 10:05 IST

Reference details:CASE NO.: Writ Petition (civil) 135 of 1970 PETITIONER: Kesavananda Bharati Sripadagalvaru and Ors RESPONDENT: State of Kerala and Anr DATE OF JUDGMENT: 24/04/1973 BENCH: S.M. Sikri & A.N. Grover & A.N. Ray & D.G. Palekar & H.R. Khanna & J.M. Shelat & K.K. Mathew & K.S. Hegde & M.H. Beg & P. Jaganmohan Reddy & S.N. Dwivedi & Y.V.Chandrachud JUDGMENT: JUDGMENT W.P.(C) 135 OF 1970 Appellants: His Holiness Kesavananda Bharati Sripadagalvaru and Ors. Vs. Respondent: State of Kerala and Anr. Decided On: 24.04.1973 Hon'ble Judges: S.M. Sikri, C.J., A.N. Grover, A.N. Ray, D.G. Palekar, H.R. Khanna, J.M. Shelat, K.K. Mathew, K.S. Hegde M.H. Beg, P. Jaganmohan Reddy, S.N. Dwivedi and Y.V. Chandrachud, JJ. JUDGMENT S.M. Sikri, C.J.5

Anonymous, http://www.indiankanoon.org/doc/257876/, accessed on 23-10-2013 08:30 IST

Facts in issue:There are SIX Writ petition under Article 32 of the constitution challenging the common question :

The validity of 24th, 25th & 29th Amendment Act of the constitution. Writ petition No 135 of 1970 pertains to petitioner Kesavananda Bharati who has filed the petition for the enforcement of his Fundamental right under Article 25,26,14.19(1)(f) and 31 of the Constitution.

He prayed that the provision of the Kerala land Reform Act 1963,(for Short the Act) as amended by Kerala Land Reform (Amendment) Act 1969 be declared unconstitutional , ultra vires & void.

He further prayed for an appropriate writ or order to issue during the pendency of the petition.

During the Pendency of the writ petition the Kerala Reforms Act 1971 was passed which received the assent of the President on 7th Aug 1971.The petitioner Kesavananda Bharti field an application for permission to urge(advise) additional grounds and to impugn(point the figure at ) the constitutional validity of the said Act 1971 Act.

In the meantime time SC by its judgment in April 1971 in Kunjukutty Vs State of Kerala (AIR 1972 SC 2097) upheld (maintain/sustain/support) the majority judgment of the Kerala High Court in Narayan Nair Vs State of Kerala (AIR 1971 Ker 98 F.B) whereby certain section of the Act were stuck down.

After the Constitution 29th Amendment came into force in 9th June 1972, The Kerala Land Reform (Amendment) Act 1969 & The Kerala Land Reform (Amendment) Act 1971 is inserted in the 9th Schedule of the constitution.

The petitioner Kesavananda Baharti then moved an application for urging additional grounds and for amendment of the writ petition in order to challenge the above constitutional amendments.

The Court allowed both the prayer on August 19, 1972 and issued notice before the Advocate General to appear before the court and take such part in the proceedings as they may be advised.6

A very small minority, including the reviewer, holds the view that the doctrine is antidemocratic and counter-majoritarian in character, and that unelected judges cannot have the power to annul amendments to the Constitution passed by Parliament. A weakened political class has, however, surrendered to judicial supremacy. After the 42nd Amendment, made during the Emergency, was struck down by the Supreme Court in Minerva Mills (1980), no attempt has been made by Parliament to regain the power which the court itself had acknowledged in the early years of the Constitution, until Golak Nath (1967).7 Whether there are implied and inherent limitations on power of amendment? - Held, there are no implied and inherent limitations on power of amendment - Neither Preamble nor Article 13 (2) is at all a limitation on power of amendment - Order accordingly. Constitution - Constitution of India, 1950, arts. 31A, 31B and 368 -Power to amend - Held, power to amend is wide and unlimited -Power to amend means power to add, alter or repeal any provision of Constitution - There can be or is no distinction between essential and inessential features of Constitution to raise any impediment to amendment of alleged essential features - Parliament in exercise of constituent power can amend any provision of this Constitution -U/art. 368 powers to amend can also be increased Order accordingly. Validity of Part VII Twenty-Ninth-Amendment - Constitution (Twenty-Ninth Amendment) amended Ninth Schedule of Constitution and inserted Kerala Land Reforms (Amendment ) Act, 1969 and Kerala Land Reforms(Amendment ) Act, 1971 - Held, it is valid - Order accordingly.

Issues in the case: The scope of the provision of Article 368 relating to the amendment of the fundamental Rights contained in part III of the constitution. The validity of the 24th & 25th Amendment Act (1971) of the constitution.

Anonymous, http://www.tinsukialawcollege.org/CASE%20LAWS/KESAVANANDA%20BHARTI%20SIRPASDAGALVARU.htm, accessed on 23-10-2013 at 10:43 IST 7 Anonymous, http://www.indianexpress.com/news/extraordinary-case-study/863792/, accessed on 23-102013 at 23:39 IST

The court also had to decide whether its earlier decision in the Golak Naths Case (AIR 1967 SC 1643) was correctly decided or not.

Decision: The judgment also defined the extent to which Parliament could restrict the right to property, in pursuit of land reform and the redistribution of large landholdings to cultivators, overruling previous decisions that suggested that the right to property could not be restricted. The case was a culmination of a series of cases relating to limitations to the power to amend the Indian constitution. The 42nd amendment is thought to be the immediate and most direct fall out of the judgement. Apart from it, the judgement cleared the deck for complete legislative authority to amend any part of the constitution except when the amendments are not in consonance with the basic features of the constitution. The basic structure doctrine is the judge-made principle that certain features of the Constitution of India are beyond the limit of the powers of amendment of the Indian Parliament. The doctrine, which was first expressed by the Indian Supreme Court in Kesavananda Bharati v. State of Kerala (1973), reflects judicial concern at the perceived threat to the liberal constitutional order posed by the Indian National Congress' majority in central and state legislatures, in particular under Indira Gandhi. The basic structure doctrine applies only to the constitutionality of amendments and not to ordinary Acts of Parliament, which must conform to the entirety of the Constitution and not just to its basic structure.8 The power of the Parliament to amend the Constitution is derived from Articles 245, 246 and 248 of the Constitution and not from Article 368 thereof which only deals with procedure. Amendment is a legislative process. Amendment is 'law' within the meaning of Article 13 of the Constitution and, therefore, if it takes away or abridges the rights conferred by Part III thereof, it is void. The Constitution (First Amendment) Act, 1951, Constitution (Fourth Amendment) Act, 1955, and the Constitution (Seventeenth Amendment) Act, 1964, abridge the scope of the fundamental rights. But, on the basis of earlier decisions of this Court, they were valid.
8

Anonymous, http://www.gktoday.in book-on-kesavananda-bharati-case//, last aceessed on 24-10-2013, at 01:15 IST

On the application of the doctrine of 'prospective over-ruling', as explained by us earlier, our decision will have only prospective operation and, therefore, the said amendments will continue to be valid.

We declare that the Parliament will have no power from the date of this decision to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights enshrined therein.

As the Constitution (Seventeenth Amendment) Act holds the field, the validity of the two impugned Acts, namely, the Punjab Security of Land Tenures Act X of 1953, and the Mysore Land Reforms Act X of 1962, as amended by Act XIV of 1965, cannot be questioned on the ground that they offend Articles 13, 14 or 31 of the Constitution.

Ratio decidendi

The seminal (important / decisive) concept of 'basic structure' of the Constitution gained recognition in the majority verdict. All judges uphold (support/maintain) the validity of the 24th amendment saying that Parliament had the power to amend any or all provisions of the Constitution

All signatories to the summary held that the Golaknath case had been decided wrongly and that Article 368 contained both the power and the procedure for amending the Constitution. However they were clear that an amendment to the Constitution was not the same as a law as understood by Article 13 (2).

The constitution (29th Amendment) which incorporated The Kerala Land Reform Act in the 9th Schedule is valid.

The learned Attorney-General said that every provision of the Constitution is essential; otherwise it would not have been put in the Constitution. This is true. But this does not place every provision of the Constitution in the same position. The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the constitution remains the same.

Constitutional provision discussed in this case:1. Article 13- laws inconsistent with or in derogation of the fundamental right Clause 2-The state shall not make any law which takes away or abridges the rights conferred by this part and law made in contravention of this clause shall, to the extent of the contravention be void.9
9

Dr Jay Jay Ram Upadhyaya, The constitution of India,5(2013)

2. Article 368-Power of the parliament o amend the constitution and procedure there for; Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.10

Conclusion:After reading the various aspects of this case researcher had concluded that the petitions contended that the application of land ceiling laws violated the basic structure of the Constitution. In effect the Review bench was to decide whether or not the basic structure doctrine restricted Parliament's power to amend the Constitution. The basic structure may be said to consist of the following features: 1. Supremacy of the Constitution; 2. Republican and Democratic form of Government; 3. Secular character of the Constitution;

4. Separation of powers between the legislature, the executive and the judiciary; 5. Federal character of the Constitution. 293. The above structure is built on the basic foundation, i.e., the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed. " One certainty that emerged out of this tussle between Parliament and the judiciary is that all laws and constitutional amendments are now subject to judicial review and laws that transgress the basic structure are likely to be struck down by the Supreme Court. In essence Parliament's power to amend the Constitution is not absolute and the Supreme Court is the final arbiter over and interpreter of all constitutional amendments. It may be said that the final word on the issue of the basic structure of the Constitution has not been pronounced by the Supreme Court- a scenario that is unlikely to change in the near future. While the idea that there is such a thing as a basic structure to the Constitution is well established its contents cannot be completely determined with any measure of finality until a judgement of the Supreme Court spells it out. The Kesavananda Bharati judgement is likely to be the key to interpreting and challenging any new legislation or constitutional amendment, imposing the State's reservation quotas on private unaided colleges, to determine if it violates the basic structure of the constitution or not.
10

Dr Jay Jay Ram Upadhyaya, The constitution of India,226(2013)

Bibliography
Online websites
A. httpwww.civilserviceindia.com/subject/Law/notes/fundamental-right-kesavanda.html B. http://www.thehindu.com/opinion/op-ed/the-case-that-saved-indiandemocracy/article4647800.ece C. http://www.du.ac.in/fileadmin/DU/Academics/course_material/2012/30812_3_Constitutio nalLaw.pdf D. http://itaxation.wordpress.com/2008/09/23/the-fundamental-rights-case-kesavanandabharati-by-na-palkhivala/ E. http://subjudiced.wordpress.com/2013/04/24/40-years-of-kesavananda-bharati/ F. http://timesofindia.indiatimes.com/topic/Kesavananda-Bharati-v.-State-of-Kerala G. http://www.indiankanoon.org/doc/257876/ H. http://www.humanrightsinitiative.org/publications/const/the_basic_structure_of_the_india n_constitution.pdf I. http://www.gktoday.in/book-on-kesavananda-bharati-case/ J. http://www.nujslawreview.org/pdf/articles/2008_3/navajyoti_samanta_and_sumitava_bas u.pdf K. http://www.indianexpress.com/news/extraordinary-case-study/863792/

Offline books: A. AIR,1973 SUPREME COURT CASES B. THE CONSTITUTION OF INDIA, CENTRAL LAW AGENCY,2013