Revisiting The

Kesavananda Bharathi
Judgement
INTELLECTUAL PROPERTY LAW CIA III

1416405 | Rahul Khemka

BBA LLB B (3rd Year)
School of Law, Christ University

History and Introduction

Revisiting The Kesavananda Bharathi Judgement

Eleven days before the pledge-taking his Holiness Swami Kesavananda Bharati Sripadagalvaru lodged
a case in the Supreme Court whose outcome would profoundly affect the countrys democratic
processes1. A month after the hearings concluded, on April 24, 1973 in Chief Justice Sikris courtroom
the thirteen judges delivered eleven judgments and what came to be called a statement signed by
nine of the judges. The statement began, The view of the majority in these writ petitions is as
follows.2 The essence of the view of the majority was that Article 368 did not enable Parliament to
alter the basic structure or framework of the Constitution.3

According to Granville Austin, The benchs glory was in its decision, not in the manner of arriving
at it, which reflected ill of itself and on the judiciary as an institution In Kesavananda, the Court
emerged as victorious asserting its institutional role vis--vis Parliament in constitutional matters and
strengthening its power of judicial review through the basic structure doctrine4

This view of the majority is the law of India, clearly and emphatically expressed. 5 This basic
structure doctrine is fairly said to have become the bedrock of the constitutional interpretation in
India.5

The paper primarily revolves around the question whether basic structure doctrine was the ratio of
Kesavananda Bharati case or it was the stratagem of pronouncing the view of the majority by Chief
Justice Sikri that gave basic structure doctrine the effect of a ratio? The paper analyses eleven
opinions delivered by thirteen judges and their critique by various jurists and legal luminaries. As
former Supreme Court Judge, Justice P.N.Bhagwati once said: Dont ever reconsider Kesavananda
Bharati. You would lose what you have.

Whether Basic Structure Doctrine Was The Ratio Of Kesavananda Bharati?

Prof. Upendra Baxi remarked, Kesavananda Bharati creates many paradoxes. Although it is in the
ultimate analysis a judicial decision, it is not just a reported case on some Articles of the Indian
Constitution. Indeed, it is in some sense, the Indian Constitution of the future.6

The most important and standard application of the Kesavananda Bharati is the proposition stated in
view of the majority that Parliament cannot alter the basic structure of the Constitution and hence, it
is critical to examine whether there was a ratio to that effect derived from the 11 judgments delivered
in the case on April 24, 1973.

1
GRANVILLE AUSTIN, WORKING A DEMOCRATIC CONSTITUTION: A HISTORY OF THE INDIAN
EXPERIENCE 258 (1999)
2
(1973) 4 SCC 225, 1007.
3
Kesavananda Bharati & Others v. State of Kerala & Others, (1973) 4 SCC 225, 1007 (2); GRANVILLE AUSTIN,
WORKING A DEMOCRATIC CONSTITUTION: A HISTORY OF THE INDIAN EXPERIENCE 264 (1999)
4
GRANVILLE AUSTIN, WORKING A DEMOCRATIC CONSTITUTION: A HISTORY OF THE INDIAN
EXPERIENCE 258 (1999)
5
GRANVILLE AUSTIN, WORKING A DEMOCRATIC CONSTITUTION: A HISTORY OF THE INDIAN
EXPERIENCE 265 (1999)
6
Upendra Baxi, The Constitutional Quicksands of Kesavananda Bharati and the Twenty-Fifth Amendment,
(1974) 1 SCC (Jour) 45, 45
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CONSTITUTIONAL LAW II CIA III

It may not be out of place understand what is meant by ratio decidendi. The expression has been
described as, any rule of law expressly or impliedly treated by the Judge as necessary step in
reaching his conclusion, having regard to the line of reasoning adopted by him7

Upholding the validity of clause (4) of article 14 (1) and a corresponding provision in article 368(3),
inserted by the 24th Amendment, the Court settled in favour of the view that Parliament has the power
to amend the Fundamental Rights also. However, the Court affirmed another proposition also asserted
in the Golaknath case, by ruling that the expression "amendment" of this Constitution in article 368
means any addition or change in any of the provisions of the Constitution within the broad contours of
the Preamble and the Constitution to carry out the objectives in the Preamble and the Directive
Principles. Applied to Fundamental Rights, it would be that while Fundamental Rights cannot be
abrogated, reasonable abridgement of Fundamental Rights could be effected in the public interest. The
true position is that every provision of the Constitution can be amended provided the basic foundation
and structure of the Constitution remains the same.8

The nine signatories to the statement were Chief Justice S M Sikri, and Justices J.M. Shelat, K.S.
Hegde, A.N. Grover, B. Jaganmohan Reddy, D.G. Palekar, H R Khanna, A.K. Mukherjee
and Yeshwant Vishnu Chandrachud. Four judges did not sign: Justices A.N. Ray, K.K. Mathew, M.H.
Beg and S.N. Dwivedi.9

The Analysis of Judgments in Kesavananda Bharati and Basic Structure Doctrine:

The eleven judgments delivered by the thirteen judges with respect to their observations regarding
power of Parliament to amend the Constitution under Article 368 can be classified into three categories,
namely, judgments identifying inherent and implied limitation under Article 368; judgments
identifying no limitations on amending power under Article 368 and judgment delivered by Justice
Khanna which belong to neither of the above category.

The judgments delivered by Chief Justice Sikri, Justices Shelat and Grover, Hegde and Mukherjea and
Jagannathan Reddy belonged to the first category and they held that the amending power was limited
by various inherent and implied limitations in the Constitution including Fundamental Rights. Six other
judges Justices A.N. Ray, Palekar, Mathew, Dwivedi, Beg, and Chandrachud belonged to second
category and in six separate judgments held that there were no limitations on the amending power of
Parliament. The judgment delivered by Justice Khanna belonged to neither of the above category,
expressly rejected the view of the six Sikri-led judges that there were inherent or implied limitations
on the amending power. Justice Khanna held that the amending power was plenary in every sense,
but the word amendment in Article 368 by its limited connotation did not lend itself to abrogating
the Constitution. Any amendment to the Constitution had necessarily to retain the basic structure and
framework of the Constitution after the amendment and cannot have the effect of destroying or
abrogating the basic structure or framework of the Constitution.10

7
Joseph Minattur, The Ratio in Kesavananda Bharati Case, (1974) 1 SCC (Jour) 73, 73.
8
"Constitution Amendment: Nature and Scope of the Amending Process" (PDF). Lok Sabha Secretariat. pp. 1617.
Retrieved 1 December 2013
9
G. G. Mirchandani (1 January 1977). Subverting the Constitution. Abhinav Publications. pp. 3940.
10
T. R. ANDHYARUJINA, THE KESAVANANDA BHARATI CASE: THE UNTOLD STORY OF STRUGGLE FOR
SUPREMACY BY SUPREME COURT AND PARLIAMENT 42 (2011).
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Revisiting The Kesavananda Bharathi Judgement

On closer analysis of the judgments delivered by Sikri-led judges who held that the amending power
was limited by various inherent and implied limitations in the Constitution, did not refer to basic
structure doctrine. They in their conclusions observed that Article 368 did not include the power to
damage, abrogate, emasculate, destroy, or change or alter the basic features/elements
fundamental features, or framework of the Constitution.11 The term basic structure was used only
by Justice Khanna, which was lifted by Chief Justice Sikri and adopted in his view of the majority.12

Immediately after the case was decided, Palkhivala the leading counsel who had appeared for the
Petitioners analyzed the judgements of the Kesavananda case wrote, Six judges decided the case in
favour of the citizen and six in favour of the State. Justice Khanna agreed with none of these 12 judges
and decided the case midway between the two conflicting viewpoints. Thus by a strange quirk of fate
the judgment of Justice Khanna with whom none of the other judges agreed has become the law of
the land.13

This view of the majority and specifically, basic structure doctrine has become the law of the law,
and hence, inevitably regarded as the ratio of Kesavananda Bharti case. The view of the majority,
itself, was discredited by Seervai and Rajiv Dhavan along with many others. Seervai believed, there
was an unbridgeable gap between the concepts and lines of reasoning of Justice Khanna and the six
judges.14 He further submitted that the summary signed by nine judges has no legal effect at all- this
even in the revision of his book in which he accepted Kesavananda as law.15 Rajeev Dhavan observed
that even the nine judges who subscribed to some versions of the doctrine of implied limits did not do
so for the same reasons.12

T. R. Andhyarujina, Senior Advocate, in his recent book on Kesavananda Bharati case writes, The
View of the Majority cannot be the ratio of the Kesavananda judgment. If a ratio had to be extracted
from the eleven judgments in the Kesavananda case it could not have been done in the manner of
asking judges to merely subscribe to The View of Majority paper on the day of pronouncement of
the judgments in Court. Deriving a ratio from the 11 judgments could have been done only after a full
hearing by a later Constitution Bench to which the Petitions were remanded for disposal according to
the unanimous Order of the Court. No later Constitution Bench to dispose of the petitions was
convened to dispose off the petitions. Alternatively, the ratio could have been extracted by any later
bench from the differing judgments as had been done in other cases. He further remarks, Look
whatever way, there was no majority view, no decision and no ratio in Kesavananda case that
Parliament could not amend the basic structure or framework of the Constitution. This was only the
conclusion of Justice Khanna. By a strategic roping in of his view in with six other judges The View
of the Majority a majority of 7 Judges to 6 was created and approved by nine judges.16

11
SUDHIR KRISHNASWAMY, DEMOCRACY AND CONSTITUTIONALISM IN INDIA: A STUDY OF THE BASIC
STRUCTURE DOCTRINE 27 (2009)
12
T. R. ANDHYARUJINA, THE KESAVANANDA BHARATI CASE: THE UNTOLD STORY OF STRUGGLE FOR
SUPREMACY BY SUPREME COURT AND PARLIAMENT 47 (2011)
13
Nani A. Palkhivala, Fundamental Rights Case: Comment, (1973) 4 SCC (Jour) 57, 59.
14
T. R. ANDHYARUJINA, THE KESAVANANDA BHARATI CASE: THE UNTOLD STORY OF STRUGGLE FOR
SUPREMACY BY SUPREME COURT AND PARLIAMENT 47 (2011)
15
GRANVILLE AUSTIN, WORKING A DEMOCRATIC CONSTITUTION: A HISTORY OF THE INDIAN
EXPERIENCE 268 (1999).
16
T. R. ANDHYARUJINA, THE KESAVANANDA BHARATI CASE: THE UNTOLD STORY OF STRUGGLE FOR
SUPREMACY BY SUPREME COURT AND PARLIAMENT 56 (2011).

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CONSTITUTIONAL LAW II CIA III

Chief Justice Chandrachud, in Minerva Mills v. Union of India 17 observed, The summary of the
various judgements in Kesavananda Bharati was signed by nine out of the thirteen Judges. Paragraph
2 of the summary reads to say that according to the majority, Article 368 does not enable Parliament
to alter the basic structure or framework of the Constitution. Whether or not the summary is a
legitimate part of the judgement, or is per incuriam for the scholarly reasons cited by authors, it is
undeniable that it correctly reflects the majority view.18

Justice Bhagwati in his separate opinion in Minerva Mills v. Union of India18 observed that the view
of the majority in Kesavananda Bharati case has no legal effect, however, he proceeded on the basis
of the view taken in Indira Gandhi case as regards the ratio of the majority decision in Kesavananda
Bharti case.19

Subsequent judgments have ritualistically repeated that Kesavananda Bharati had held that the
amending power of Parliament was limited by the basic structure of the Constitution without
examining whether there was a ratio to this effect from the eleven judgments in the case.20

Conclusion

Technically, it is hard to decipher the ratio of Kesavananda Bharati and so is to accept the fact, that
view of majority was indeed the ratio of the case. In spite of the severe criticism of the so-called
view of the majority, the acceptance of basic structure doctrine in cases subsequent to
Kesavananda Bharati this view of the majority is the law of India, clearly and emphatically expressed.
In words of Granville Austin, the basic structure doctrine is fairly said to have become the bedrock
of the constitutional interpretation in India.

17
(1980) 3 SCC 625
18
(1980) 3 SCC 625, 641.
19
(1980) 3 SCC 625, 669.
20
T. R. ANDHYARUJINA, THE KESAVANANDA BHARATI CASE: THE UNTOLD STORY OF STRUGGLE FOR
SUPREMACY BY SUPREME COURT AND PARLIAMENT 59 (2011)
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