Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461

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WCanada, Australia, Ireland, United States of America
and Switzerland. The Constitution being supreme all the organs and bodies owe their existence
to it. None can claim superiority over the other and each of them has to function within the four
corners of the constitutional provisions. The Preamble embodies the great purposes, objectives
and the policy underlying its provisions apart from the basic character of the State which was
to come into existence, i.e. a Sovereign Democratic Republic. Parts III and IV which embody
the fundamental rights and directive principles of State policy have been described as the
conscience of the Constitution. The legislative power distributed between the Union Parliament
and the State Legislatures cannot be so exercised asto take away or abridge the fundamental
rights contained in Part III. Powers of the Union and the States are further curtailed by
conferring the right to enforce fundamental rights contained in Part III by moving the Supreme
Court for a suitable relief, Article 32 itself has been constituted a fundamental right. Part IV
containing the directive principles of State policy wasinspired largely by similar provisions in
the Constitution of the Eire Republic (1937). This part, according to B. N. Rao, is like an
instrumentof Instructions from the ultimate sovereign,

(SM Sikri, C.J., J.M.Shelat,K.S.Hegde, A.N.Grover,A.N.Ray, P.Jaganmohan Reddy, D.G.Palekar, H.R.Khanna, K.K.Mathew, m.H.Beg, S.N. Dwivedi, A.K.Mukherjea and Y.V. Chandrachud, JJ.)

[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 formits basic structure which are not amendable by Parliament by exercise of its constituentpowerunderArticle368.SeealsoIndiraNehruGandhiv.RajNarain, AIR 1975 SC 2299; Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789; SanjeevCokeMfg.Co.v.BharatCokingCoalLtd.,AIR1983SC239;L.Chandra Kumar v. Union of India, AIR 1997 SC 1125.]

In this case, the validity of 24^th, 25^th and 29^th amendments to the Constitution of India was challenged. The main question was related to the nature, extent and scope of amending power of the Parliament under the Constitution. The views of the majority were as follows:

• I.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;
• The Constitution (Twenty-fourth Amendment) Act, 1971 (giving power to Parliament to amend any part of the Constitution) was valid;
• 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.
• The amendment of Article 368(4) excluding judicial review of a constitutional amendment was unconstitutional.
• 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;

S.M. SIKRI C.J.: 90. This Preamble, and indeed the Constitution, was drafted in the light and direction of the Objectives Resolution adopted on January 22, 1947, which runs as follows:

• THIS CONSTITUENT ASSEMBLY declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Constitution;
• wherein the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside British India and the States, as well as such other territories as are willing to be constituted into the Independent Sovereign India, shall be a Union of them all; and

• wherein the said territories, whether with their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the law of the Constitution, shall possess and retain the status of autonomous units, together with residuary powers, and exercise all powers and functions of government and administration, save and except such powers and functions as are vested in or assigned to the Union, or as are inherent or implied in the Union or resulting therefrom; and
• wherein all power and authority of the Sovereign Independent India, its constituent parts and organs of government, are derived from the people; and
• wherein shall be guaranteed and secured to all the people of India justice, social, economic and political; equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association andaction, subject to law and public morality; and
• wherein adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes; and
• whereby shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea and air according to justice and the law of civilized nations; and
• this ancient land attains its rightful and honoured place in the world and makes its full and willing contribution to the promotion of world peace and the welfare of mankind.

91. While moving the resolution for acceptance of the Objectives Resolution, Pandit Jawaharlal Nehru said:

It seeks very feebly to tell the world of what we have thought or dreamt for so long, and what we now hope to achieve in the near future. It is in that spirit that I venture to place this Resolution before the House and it is in that spirit that I trust the House will receive it and ultimately pass it. And may I, Sir, also with all respect, suggest to you and to the House that, when the time comes for the passing of this Resolution let it be not done in the formal way by the raising of hands, but much more solemnly, by all of us standing up and thus taking this pledge a new.

135. The fundamental rights were considered of such importance that right was given to an aggrieved person to move the highest court of the land, i.e. the Supreme Court, byappropriate proceedings for the enforcement of the rights conferred by this part, and this was guaranteed. Article 32 (2) confers very wide powers on the Supreme Court, to issue directions or orders or writs including writs in the nature of habeascorpus,mandamus,prohibition, quowarrantoand certiorari,whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. Article 32(4) further provides that “the right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution”.

• 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. The basic structure may be said

• Supremacy of the Constitution;
• Republican and Democratic forms of Government;
• Secular character of the Constitution;
• Separation of powers between the legislature, the executive and the judiciary;
• Federal character of the Constitution.
• 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.

J.M. SHELAT & A.N. GROVER, JJ.:499. These petitions which have been argued for a very long time raise momentous issues of great constitutional importance. Our Constitution is unique, apart from being the longest in the world. It is meant for the second largest population with diverse people speaking different languages and professing varying religions. It was chiselled and shaped by great political leaders and legal luminaries, most of whom had taken an active part in the struggle for freedom from the British yoke and who knew what domination of a foreign rule meant in the way of deprivation of basic freedoms and from the point of view of exploitation of the millions of Indians. The Constitution is an organic document which must grow and it must take stock of the vast socio-economic problems, particularlyof improving the lot of the common man consistent with his dignity and the unity of the nation.

503. Before the scheme of the Constitution is examined in some detail it is necessary to give the pattern which was followed in framing it. The Constituent Assembly was unfettered by any previous commitment in evolving a constitutional pattern “suitable to the genius and requirements of the Indian people as a whole”. The Assembly had before it the experience of the working of the Government of India Act, 1935, several features of which could be accepted for the new Constitution. Our Constitution borrowed a great deal from the Constitutions of other countries, e. g. United Kingdom, Canada, Australia, Ireland, United States of America and Switzerland. The Constitution being supreme all the organs and bodies owe their existence to it. None can claim superiority over the other and each of them has to function within the four corners of the constitutional provisions. The Preamble embodies the great purposes, objectives and the policy underlying its provisions apart from the basic character of the State which was to come into existence, i.e. a Sovereign Democratic Republic. Parts III and IV which embody the fundamental rights and directive principles of State policy have been described as the conscience of the Constitution. The legislative power distributed between the Union Parliament and the State Legislatures cannot be so exercised asto take away or abridge the fundamental rights contained in Part III. Powers of the Union and the States are further curtailed by conferring the right to enforce fundamental rights contained in Part III by moving the Supreme Court for a suitable relief, Article 32 itself has been constituted a fundamental right. Part IV containing the directive principles of State policy wasinspired largely by similar provisions in the Constitution of the Eire Republic (1937). This part, according to B. N. Rao, is like an instrumentof Instructions from the ultimate sovereign,

namely, the people of India. The Constitution has all the essential elements of a federalstructure as was the case in the Government of India Act, 1935, the essence of federalism being the distribution of powers between the federation or the Union and the Statesor the provinces. All the Legislatures have plenary powers but these are controlled by the basic concepts of the Constitution itself and they function within the limits laid down in it. Allthe functionaries, be they legislators, members of the executive or the judiciary take oath of allegiance to the Constitution and derive their authority and jurisdiction from its provisions. The Constitution has entrusted to the judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights. It is a written and controlled Constitution. It can be amended only to the extent of and in accordance with the provisions contained therein, the principal provision being Article 368. Although our Constitution is federal in its structure it provides a system modeled on the British parliamentary system. It is the executive that has the main responsibility for formulating the governmental policy by “transmitting it into law” whenever necessary. “The executive function comprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotionof social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State”. With regard to the civil services and the position of the judiciary, the British model has been adopted in as much as the appointment of judges both of the Supreme Court of India and of the High Courts of theStates is kept free from political controversies. Their independence has been assured. But the doctrine of parliamentary sovereignty as it obtains in England does not prevail here except to the extent provided by the Constitution. The entire scheme of the Constitution is such that it ensures the sovereignty and integrity of the country as a Republic and the democratic way of life by parliamentary institutions based on free and fair elections.

K.S.HEGDE&MUKHERJEA,JJ.:667. We find it difficult to accept the contention that our Constitution-makers after making immense sacrifices for achieving certain ideals made provision in the Constitution itself for the destruction of those ideals. There is no doubt as men of experience and sound political knowledge, they must have known that social, economic and political changes are bound to come with the passage of time and the Constitution must be capable of being so adjusted as to be able to respond to those new demands. Our Constitution is not a mere political document. It is essentially a social document. It is based on a social philosophy and every social philosophy like every religion has two main features, namely basic and circumstantial. The former remains constant but the latter is subject to change. The core of a religion always remains constant but the practices associated with it may change. Likewise, a Constitution like ours contains certain features which are so essential that they cannot be changed or destroyed. In any event it cannot be destroyed from within. In other words, one cannot legally use the Constitution to destroy itself. Under Article 368 the amended Constitution must remain ‘the Constitution’ which means the original Constitution. When we speak of the ‘abrogation’ or ‘repeal’ of the Constitution, we do not refer to any form but to substance. If one or more of the basic featuresof the Constitution are taken away to that extent the Constitution is abrogated or repealed. If all the basic features of the Constitution are repealed and some other provisions inconsistent

with those features are incorporated, it cannot still remain the Constitution referred toin Article

368. The personality of the Constitution must remain unchanged.

PALEKAR,J.–1229.Since fundamental questions with regard to the Constitution have been raised, it will be necessary to make a few prefatory remarks with regard to the Constitution. The Constitution is not an indigenous product. Those who framed it were thoroughly acquainted with the Constitutions and constitutional problems of the more important countries in the world, especially, the English-speaking countries. They knew the Unitary and Federal types of Constitutions and the Parliamentary and Presidential systems of Government. They knew what constitutions were regarded as “flexible” constitution and whatconstitutions were regarded as “rigid” constitutions. They further knew that in all modern written constitutions special provision is made for the amendment of the Constitution. Besides, after the Government of India Act, 1935, this country had become better acquainted at first hand, both with the Parliamentary system of Government and the frame of a Federal constitution with distribution of powers between the Centre and the States. All this knowledgeand experience went into the making of our Constitution which is broadly speaking a quasi- Federal constitution which adopted the Parliamentary system of Government based on adult franchise both at the Centre and in the States.

1220. The two words mentioned above ‘flexible’ and ‘rigid’ were first coined by Lord Bryce to describe the English constitution and the American constitution respectively. The words were made popular by Dicey in his Law of the Constitution first published in 1885. Many generations of lawyers, thereafter, who looked upon Dicey as one of the greatest expositors of the law of the constitution became familiar with these words. A ‘flexible’ constitution is one under which every law of every description (including one relating to the constitution) can legally be changedwith the same ease and in the same manner by one and the same body. A ‘rigid’ constitution is one under which certain laws generally known as constitutional or fundamental laws cannot be changed in the same manner as ordinary laws. It will be noted that the emphasis is on the word ‘change’ in denoting the distinction between the two types of constitutions. Lord Birkenhead in delivering the judgment of the Judicial Committee of the Privy Council in Mc Cawley v.The King [1920 AC 691], used the words ‘uncontrolled’ and ‘controlled’ for the words ‘flexible’ and ‘rigid’ respectively which were current then. He had to examine the type of constitution Queensland possessed, whether it was a ‘flexible’ constitution or a ‘rigid’ one in order to decide the point in controversy. He observed at page 703 ‘The first point which requires consideration depends upon the distinction between constitutions the terms of which may be modified or repealed with no other formality than is necessary in the case of other legislation, and constitutions which can only be altered with some special formality and in some cases by a specially convened assembly’. He had to do that because the distinction between the two types of constitutions was vital to the decision of the controversy before the Privy Council. At page 704 he further said ‘Many different terms have been employed in the text-books to distinguish these two contrasted forms of constitution. Their special qualities may perhaps be exhibited as clearly by calling the one a ‘controlled’ and the other an ‘uncontrolled’ constitution as by any other nomenclature’. Perhaps this was an apology for not using the words ‘rigid’ and ‘flexible’

which were current when he delivered the judgment. In fact, Sir John Simon in the course of his arguments in that case had used the words ‘rigid’ and ‘flexible’ and he had specifically referred to Dicey’s, Law of the Constitution. Strong in his text-book on Modern Political Constitutions, Seventh revised edition, 1966 says at p. 153 “The sole criterion of a rigid constitution is whether the Constituent Assembly which drew up the Constitution left any special directions as to how it was to be changed. If in the Constitution there are no such directions, or if the directions explicitly leave the Legislature a free hand, then the Constitution is ‘flexible’.”

H.R. KHANNA, J.:1448. The approach while determining the validity of an amendment of the Constitution, in my opinion, has necessarily to be different from the approach to the question relating to the legality of amendment of pleadings. A Constitution is essentially different from pleadings filed in court of litigating parties. Pleadings contain claim and counter-claim of private parties engaged in litigation, while a Constitution provides for the framework of the different organs of the State, viz., the executive, the legislature and the judiciary. A Constitution also reflects the hopes and aspirations of people. Besides laying down the norms for the functioning of different organs a Constitution encompasses within itself the broad indications as to how the nation is to march forward in times to come. A Constitution cannot be regarded as a mere legal document to be read as a will or an agreementnor is Constitution like a plaint or written statement filed in a suit between two litigants. A Constitution must of necessity be the vehicle of the life of a nation. It has also to be borne in mind that a Constitution is not a gate but a road. Beneath the drafting of a Constitution is the awareness that things do not stand still but move on, that life of a progressive nation, as of an individual, is not static and stagnant but dynamic and dashful. A Constitution must therefore contain ample provision for experiment and trial in the task of administration. A Constitution, it needs to be emphasised emphasized, is not a document for fastidious dialectics but the means of ordering the life of a people. It had (sic) its roots in the past, its continuity is reflected in the present and it is intended for the unknown future. The words of Holmes while dealing with the U.S. Constitution have equal relevance for our Constitution. Said the great Judge:

(T)he provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.

It is necessary to keep in view Marshall’s great premises that “It is a Constitution we are expounding”. To quote the words of Felix Frankfurter in his tribute to Holmes:

Whether the Constitution is treated primarily as a text for interpretation or as an instrument of government may make all the difference in the word. The fate of cases, and thereby of legislation, will turn on whether the meaning of the document is derived from itself or from one’s conception of the country, its development, its needs, its place in a civilized society.

K.K.MATHEW,J.:1563. Every well-drawn Constitution will therefore provide for its own amendment in such a way as to forestall as is humanly possible all revolutionary upheavals. That the Constitution is a framework of great governmental powers to be exercised

for great public ends in the future, is not a pale intellectual concept but a dynamic idea which must dominate in any consideration of the width of the amending power. No existing Constitution has reached its final form and shape and become, as it were a fixed thing incapable of further growth. Human societies keep changing; needs emerge, first vaguely felt and unexpressed, imperceptibly gathering strength, steadily becoming more and more exigent, generating a force which, if left unheeded and denied response so as to satisfy the impulse behind it, may burstforth with an intensity that exacts more than reasonable satisfaction. As Wilson said, a living Constitution must be Darwinian in structure and practice. The Constitution of a nation is the outward and visible manifestation of the life of the people andit must respond to the deep pulsation for change within. “A Constitution is an experiment as all life is an experiment”. If the experiment fails, there must be provision for making another. Jefferson said that there is nothing sanctimonious about a Constitution and that nobody shouldregard it as the Ark of the Covenant, too sacred to be touched. Nor need we ascribe to men of preceding age, a wisdom more than human and suppose that what they did should be beyond amendment. A Constitution is not an end in itself, rather a means for ordering the life of a nation. The generation of yesterday might not know the needs of today, and, ‘if yesterday is not to paralyse today’, it seems best to permit each generation to take care of itself. The sentiment expressed by Jefferson in this behalf was echoed by Dr Ambedkar. If there is one sure conclusion which I can draw from this speech of Dr Ambedkar, it is this: He could not have conceived of any limitation upon the amending power. How could he have said thatwhat Jefferson said is “not merely true but absolutely true”, unless he subscribed to the view of Jefferson that “each generation is a distinct nation with a right, by the will of the majorityto bind themselves but none ‘to bind the succeeding generations more than the inhabitants of another country”, and its corollary which follows as ‘the night the day’ that each generation should have the power to determine the structure of the Constitution under which they live. And how could this be done unless the power of amendment is plenary, for it would be absurdto think that Dr Ambedkar contemplated a resolution in every generation for changing the Constitution to suit its needs and aspirations. I should have thought that if there is any impliedlimitation upon any power, that limitation is that the amending body should not limit the power of amendment of the future generation by exercising its power to amend the amending power. Mr Palkhivala said that if the power of amendment of the amending power is plenary, one generation can, by exercising that power, take away the power of amendment of the Constitution from the future generations and foreclose them from ever exercising it. I think the argument is too speculative to be countenanced. It is just like the argument that if men andwomen are given the freedom to choose their vocations in life, they would all jump into a monastery or a nunnery, as the case may be, and prevent the birth of a new generation; or the argument of some political thinkers that if freedom of speech is allowed to those who do not believe in it, they would themselves deny it to others when they get power and, therefore, theyshould be denied that freedom today, in order that they might not deny it to others tomorrow.