Kesavananda Bharti Case: Remembering the Legend of Nani Palkhivala

Basant Vijay Sagar

April 24th marked the anniversary of the Kesavananda Bharati decision, which enunciated the Doctrine of Basic Structure. Let us reflect on the judgment in the light and memory of Nani Palkhivala, who argued the case on behalf of the petitioner.

The aim of the Constitution’s drafters, influenced by the independence struggle, was to usher in a democratic community through socio-economic reforms. Agrarian reform was high on the Government’s priority list. Land reform laws were introduced with this goal in mind. However, the reforms, as were then obtained, clashed with the fundamental right to property and thus were held unconstitutional by courts. Thus, the 1st Constitutional Amendment was passed in 1951 by the Parliament, which was then known as the “Provisional Parliament” until the first general election in 1952. It inserted Articles 31A and 31B into the Constitution to protect agrarian reforms and other nationalisation programmes from legal challenges based on the inadequacy of payments. It also included the device of Schedule IX that shielded all laws included in it from any appeal on the grounds of violation of the fundamental rights.

These legislations were protected by the Supreme Court in Sankari Prasad v. Union of India[1], wherein the court held that the power of Parliament extended well to cover amendments to fundamental rights and that the term “law” in Art 13 applied only to ordinary laws and not any constitutional amendment. Although the ratio decidendi of Sankari Prasad was adopted in Sajjan Singh v. State of Rajasthan[2], Hidayatullah and Mudholkar, JJ, voiced their reservations about its legal status. Where on one hand Hidayatullah, J., said that fundamental rights are not “the playthings for a majority”,[3] on the other Mudholkar, J., questioned whether the basic features of the Constitution can be granted permanence; and whether changing basic features should be considered simply an amendment or would it be like rewriting a portion of the Constitution.[4]

Soon, the decisions of both Sankari Prasad and Sajjan Singh were overruled by Golak Nath case,[5] wherein the court, with a majority of 6:5, held that Parliament had no authority to take away or curtail any of the fundamental rights, and the word ‘law’ mentioned in Art 13 encompassed even a Constitutional amendment. Now, it was this decision that set the ball rolling for the biggest and most momentous constitutional case in Indian history- the largest bench hearing and delivering the lengthiest judgment –Kesavananda Bharati v. State of Kerala[6].

The Golak Nath decision appeared to have established a proposition that was untenable and had to be overturned. The Court wanted to protect the Constitution against what was alleged to be onslaughts on the Constitution, since many laws were haphazardly inserted into Schedule IX over time. It was against this backdrop that the problem of the basic structure of constitution arose. The court, addressing this challenge, deftly developed the Doctrine of Basic Structure, which, while holding the amendment to every part of the Constitution, including Part III, permissible, sought to rein in the power of Parliament by declaring that the amendments should not be designed to destroy the fundamental features, framework or structure of the Constitution.

The majority view in Kesavananda, as concurred by 9 of the 13 Judges’ Bench, was that “Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.”[7] Khanna J. opined that “Any amending body organized within the statutory scheme, howsoever verbally unlimited its power, cannot by its very structure, change the fundamental pillars supporting its constitutional authority.”[8] The Court, for the first time, by a slim majority of 7:6 ruled that the Parliament was authorised to amend any article, including the fundamental rights mentioned in Part III of the Constitution and that there was no implication of restriction to the amending authority, provided that “the basic structure” remains intact. No court had previously affirmed the power, on the grounds of such a vague concept and through the Court itself, to annul a constitutional amendment, a legal novelty and a daring one in that regard![9] By overruling Golak Nath and maintaining the three reforms, the Court mollified the Government and almost reverted to the position of Sankari Prasad, though retaining and indeed enhancing its judicial review authority.

The decision of Kesavananda saved something valuable. In Indira Gandhi v. Raj Narain,[10] this doctrine was embraced and implemented. According to Chandrachud, J., the majority decision of Kesavananda Bharati was that the amending power of the Parliament cannot be exercised to destroy or damage the vital features or basic structure of the Constitution, “whatever those expressions may comprehend”. Going by the similar logic, the court in Minerva Mills v. Union of India[11] stated that “the theme song of the majority in Kesavananda is: ‘Amend as you may even the solemn document which the founding fathers have committed to your care, for you know best the needs of your generation. But the Constitution is a precious heritage, therefore you cannot destroy its identity.’”[12] This led to the dawn of the basic structure doctrine. By its very reason and name, this doctrine exists to ensure that the core of the constitution isn’t abrogated or destroyed.

The basic structure doctrine is a product of its history and time.[13] However, the doctrine is not a grace or a tragedy unmitigated. It must be noted down that this doctrine faces various criticisms.[14] The first one being that the phrase “basic structure” finds no mention anywhere in the constitution.[15] The critics have also maintained that through this doctrine, the judiciary tries to impose its own philosophy over a democratically formed government, resulting in the “tyranny of the unelected”.[16] In Indira Nehru Gandhi v. Raj Narain, even Mathew J. has said, “the concept of a basic structure as brooding omnipresence in the sky, apart from the specific provisions of the Constitution, is too vague and indefinite to provide a yardstick for the validity of an ordinary law”.[17] Thus, it becomes clear that this doctrine, if not used wisely and carefully, is prone to misuse due to its sheer ambiguity. It’s a rare tool to use with no attention. Invocation and implementation of this doctrine, without justification and indiscriminately, would itself be the abrogation of the basic structure of the Constitution.

[1] 1951 AIR 458

[2] AIR 1965 SC 845

[3] A.R. Blackshield, ‘” Fundamental Rights” and the Institutional Viability of the Indian Supreme Court’ (1966) 8 JILI 2.

[4] ibid

[5] I.C. Golaknath v State of Punjab, 1967 SCR (2) 762

[6] AIR 1973 SC 1461

[7] ibid ¶ 487

[8] Supra Note 6 at ¶1485

[9] Available at

[10] AIR 1975 SC 2299

[11] AIR 1980 SC 1789

[12] ibid

[13] Available at

[14] Available at

[15] Supra note 13

[16] Available at

[17] AIR 1975 SC 2299, ¶ 357

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