Case Study: Kesavananda Bharati vs State Of Kerala And Anr

Case Study: Kesavananda Bharati  vs State Of Kerala And Anr  24 April, 1973

• Name of the case – Kesavananda Bharati … vs State Of Kerala And Anr
• Equivalent Citations- (1973) 4 SCC 225)

 INTRODUCTION –

 Kesavananda Bharati  vs State Of Kerala –This is the greatest decision in the history of the Indian constitution which determined the fabric of Indian constitution and also has till date the highest number of judges on the bench.  Supreme Court of India outlined the Basic Structure doctrine of the Constitution.

JUDGES INVOLVED IN THE CASE –

• Sikri, N. Grover, N. Ray, G. Palekar, R. Khanna, M. Shelat, K. Mathew, S. Hegde, H. Beg, Jaganmohan Reddy, N. Dwivedi, V.Chandrachud

FACTS OF THE CASE – 

The factual summary of this case is as follows-

• In February 1970 Swami HH Sri Kesavananda Bharati, Senior head of “Edneer Mutt” – a HinduMutt situated in Edneer, a village in Kasaragod District of Kerala, challenged the Kerala government’s attempts, under two state land reform acts, to impose restrictions on the management of its property.
• Although the state invoked its authority under Article 21, an Indian jurist, Nanabhoy Palkhivala, convinced the Swami into filing his petition under Article 26, concerning the right to manage religiously owned property without government interference
• The big fight was anticipated. Major amendments to the Constitution (the 24th, 25th, 26th, and 29th) had been enacted by Indira Gandhi’s government through Parliament to get over the judgments of the Supreme Court in R.C. Cooper (1970), Madhavrao Scindia (1970) and Golak Nath.
• The first had struck down bank nationalization, the second had annulled the abolition of privy purses of former rulers and the third had held that the amending power could not touch Fundamental Rights.
• All these amendments were under challenge in Kesavananda. Since Golak Nath was decided by eleven judges, a larger bench was required to test its correctness. And so, 13 judges were to sit on the Kesavananda bench.

ISSUES OF THE CASE –

• Whether constitutional amendment as per article 368 applicable to fundamental rights also?
• Whether 24^thamendment act 1971 is valid?
• Whether section 2(a), 2(b) and 3 of 25^thamendment is valid?
• Whether 29^thamendment act 1971 is valid?

JUDGEMENT OF THE CASE –

There are 11 separate judgments of each judge, however, the summarized form of the same is- Writ Petition No. 135 of 1970 was filed by the petitioner on March 21, 1970, under Article 32 of the Constitution for enforcement of his fundamental rights under Articles 25, 26, 14, 19(1)(f) and 31 of the Constitution. He prayed that the provisions of the Kerala Land Reforms Act, 1963 (Act 1 of 1964) as amended by the Kerala Land Reforms (Amendment) Act 1969 (Act 35 of 1969) be declared unconstitutional, ultra vires and void. The Constitution (Twenty-fifth Amendment) Act came into force on November 5, 1971, the Constitution (Twenty-fifth Amendment) Act came into force on April 20, 1972, and the Constitution (Twenty-ninth Amendment) Act came into force on June 9, 1972. The effect of the Twenty-ninth Amendment of the Constitution was that it inserted the following Acts in the Ninth Schedule to the Constitution:

• The Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35 of 1969).
• The Kerala Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of 1971).

The petitioner then moved an application for urging additional grounds and for amendment of the writ petition in order to challenge the above Constitutional amendments. Before proceeding with the main task, judges review: what was decided in I.C. Golak Nath v. State of Punjab [1967] 2 S.C.R. 762? In order to properly appreciate that case, it is necessary first to have a look at Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar [1952] S.C.R. 89 and Sajjan Singh v. State of Rajasthan [1965] 1 S.C.R. 933. The Constitution (First Amendment) Act, 1951, which inserted inter alia Articles 31A and 31B in the Constitution was the subject matter of decision in Sankari Prasad’s [1952] S.C.R. 89 case. The main arguments relevant to the present case which were advanced in support of the petition before this Court were summarised by Patanjali Sastri, J. as he then was, as follows: First, the power of amending the Constitution provided for under Article 368 was conferred not on Parliament but on the two Houses of Parliament as designated body and, therefore, the provisional Parliament was not competent to exercise that power under Article 379. Fourthly, in any case, Article 368 is a complete code in itself and does not provide for any amendment being made in the bill after it has been introduced in the House. The bill in the present case having been admittedly amended in several particulars during its passage through the House, the Amendment Act cannot be said to have been passed in conformity with the procedure prescribed in Article 368. Fifthly, the Amendment Act, in so far as it purports to take away or abridge the rights conferred by Part III of the Constitution, falls within the prohibition of Article 13(2). The view that Article 368 is a complete code in itself in respect of the procedure provided by it and does not contemplate any amendment of a Bill for amendment of the Constitution after it has been introduced, and that if the Bill is amended during its passage through the House, the Amendment Act cannot be said to have been passed in conformity with the procedure prescribed by Article 368 and would be invalid, is erroneous. Although “law” must ordinarily include Constitutional law there is a clear demarcation between an ordinary law which is made in the exercise of legislative power and Constitutional law, which is made in the exercise of constituent power. In the context of Article 13, “law” must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in the exercise of constituent power with the result that Article 13(2) does not affect amendments made under Article 368. The Chief Justice came to the conclusion that “as a matter of construction, there is no escape from the conclusion that Article 368 provides for the amendment of the provisions contained in Part III without imposing on Parliament an obligation to adopt the procedure prescribed by the provision.

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