KESVANAND BHARATI VS STATE OF KERALA : BASIC STRUCTURE OF THE CONSTITUTION CANNOT BE AMENDED
The Supreme Court by 7:6 majority in Kesavanand Bharati Vs. State of Kerala (1973) Supp. 1 SCR 1 held that basic structure of the Constitution cannot be amended by Article 368 of the Constitution.
FACTS OF THE CASE
Twenty Fourth, Twenty Fifth and Twenty Ninth amendments were challenged before the Supreme Court in this batch of Writ Petitions.
24th Amendment inserted clause (4) to Article 368 which provided that nothing in this Article shall apply to any amendment of this Constitution made under Article 368.Clause (3) was also added to Article 368 which provided that nothing in Article 13 shall apply to any amendment made under this Article.
25th Amendment inserted Article 31C which provided that notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31 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. Provided that where such law is made by the Legislature of a State, the provisions of this Article shall not apply thereto unless such law having been reserved for the consideration of the President has received his assent.
29th Amendment inserted Kerala Land Reforms Act (Amendment) Act, 1969 and Kerala Land Reforms Act, 1971 in the Ninth Schedule.
FINDINGS OF THE SURPEME COURT
Chief justice S. M. Sikri was of the opinion that it was the common understanding that Fundamental Rights would remain in substance as they are and they would not be amended out of existence. It seems also to have been common understanding that the fundamental features of the Constitution, namely, secularism, democracy and the freedom of the individual would always subsist in the welfare state. In view of above reasons, a necessary implication arises that there are implied limitations on the power of Parliament that the expression “amendment of this Constitution” has consequently a limited meaning in our constitution and not the meaning suggested by the Respondents.
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 mean that while Fundamental Rights cannot be abrogated, reasonable abridgments of Fundamental Rights can be effected in the public interest.
Justice J. M. Shelat and A. N. Grover observed that the correct approach to the question of limitations which may be implied in any legislative provisions including a Constitutional document has to be made from the point of view of interpretation. It is not a novel theory or a doctrine which has to be treated as an innovation of those who evolve heterodox methods to substantiate their own thesis. The argument that there are no implied limitations because there are no express limitations is a contradiction in terms. Implied limitations can only arise where there are no express limitations.
The basic structure of the Constitution is not a vague concept and the apprehensions expressed on behalf of the respondents that neither the citizen nor the Parliament would be able to understand it are unfounded. In the historical background, the Preamble, the entire scheme of the Constitution, the relevant provisions thereof including Article 368 are kept in mind there can be no difficulty in discerning that the following can be regarded as the basic elements of the constitutional structure. These cannot be catalogued but can only be illustrated – (i) the Supremacy of the Constitution (ii)Republican and Democratic form of Government and sovereignty of the Country (iii) secular and federal character of the Constitution (iv) demarcation of power between the legislature, executive and judiciary (v) the dignity of the individual secured by the various freedoms and basic rights in Part III and the mandate to build a welfare State contained in Part IV (vi) the unity and integrity of the nation.
Justice K. S. Hedge and A. K. Mukherjea observed that it is difficult to accept the contention that 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 to being so adjusted as to be able to respond to those 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 contain certain features which are so essential that they cannot be changed or destroyed. In any event it cannot be destroyed form 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 donot refer to any form but to substance. If one or more of the basic features of 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 to in Article 368. The Personality of the Constitution must remain unchanged. When a power to amend the Constitution is given to the people, its contents can be construed to be larger than when the power is given to a body constituted under the Constitution. Two-thirds of members of the two Houses of the Parliament need not necessarily represent even the majority of the people of this Country.
The President of India under Article 60 of the Constitution is required to take an oath before he assumes his office to the effect that he will “to the best of his ability preserve, protect and defend the Constitution”. Somewhat similar oaths have to be taken by the Governors of States, Ministers at the Centre and in the States, Judges of the Superior Courts and other important functionaries. When President of India is compelled to give assent to a constitutional amendment which might destroy the basic feature of the Constitution, can it be said that he is true to his oath to “preserve, protect and defend the Constitution” or does his oath merely mean that he is to defend the amending power of Parliament. The whole scheme and the structure of our constitution proceeds on the basis that there are certain basic features, which are expected to be permanent.
The Parliament has no power to abrogate or emasculate the basic elements or fundamental features of the Constitution such as the sovereignty of India, the democratic character of our polity, the unity of the Country, the essential feature of the individual freedoms secured to the citizens. Nor has the Parliament the power to revoke the mandate to build a Welfare State and egalitarian society. These limitations are only illustrative and not exhaustive. Despite these limitations, however, there can be no question that the amending power is a wide power and it reaches every Article and every part of the Constitution. That power can be used to reshape the Constitution to fulfil the obligations imposed on the State. It can also be used to reshape the Constitution within the limits to make it an effective instrument for social goods. We are unable to agree with the contention that in order to build a Welfare State, it is necessary to destroy some of human freedoms. That, at any rate is not the perspective of our Constitution. Our Constitution envisages that the States should without delay make available to all the citizens of this Country the real benefits of those freedoms in a democratic way. Human freedoms are lost gradually and imperceptibly and their destruction is generally followed by authoritarian rule. That is what history has taught us. Struggle between liberty and power is eternal. Vigilance is the price that we like every other democratic society have to pay to safeguard the democratic values enshrined in our Constitution. Even the best of the governments are not averse to have more and more power to carry out their plans and programmes which they may sincerely believe to be in public interest. But a freedom once lost is hardly ever regained except by revolution. Every encroachment on freedoms sets a pattern for further encroachments, our constitution plan is to eradicate poverty without destruction of individual freedoms.
The word “amendment” in Article 368 carries with it certain limitations, further, that the power conferred under Article 368 is subject to certain implied limitations though that power is quite large.
Justice P. Jaganmohan Reddy observed that Article 13 (2) inhibits only a law made by the ordinary legislative agency and not an amendment under Article 368. The power of Parliament under Article 368 is wide, but it is not wide enough to totally abrogate or what would amount to an abrogation or emasculating or destroying in a way as would amount to abrogation of any of the fundamental rights or other essential elements of basic structure of the Constitution and destroy its identity.
Justice H. R. Khanna observed that amendment of the Constitution necessarily contemplates that the constitution has not be abrogated but only changed have to made to it. The word “amendment” postulates that the old constitution survives without loss of its identity despite the change and continues even though it has been subjected to alterations. As a result of the amendment, the old constitution cannot be destroyed and done away with; it is retained though in the amended form. What then is meant by retention of the old constitution ? it means the retention of the basic structure or framework of the old constitution. A mere retention of some provisions of the old constitution even though the basic structure or framework of the constitution has been destroyed would not amount to the retention of the old constitution. Although it is permissible under the power of amendment to effect change howsoever important, and to adapt the system of the requirements of changing conditions, it is not permissible to touch the foundation or to alter the basic institutional pattern. The words “amendment of the constitution” with all their wide sweep and amplitude cannot have the effect of destroying or abrogating the basic structure or framework of the constitution. It would not be competent under the garb of amendment, for instance, to change the democratic government into dictatorship or hereditary monarch nor would it be permissible to abolish Lok Sabha and Rajya Sabha. The secular character of the State according to which the state shall not discriminate against any citizen on the ground of religion only cannot likewise be done away with. Provision regarding the amendment of the Constitution does not furnish a pretence for subverting the structure of the Constitution nor can Article 368 be so constructed as to embody the death wish of the Constitution or provide sanction for what may perhaps be called its lawful hara-kiri. Such subversion or destruction cannot be described to be amendment of the Constitution as contemplated by Article 368.
The words “amendment of this Constitution” and “the Constitution shall stand amended” in Article 368 show that what is amended is the existing Constitution and what emerges as a result of amendment is not a new and different Constitution but the existing Constitution though in an amended form. The language of Article 368 thus lends support to the conclusion that one cannot while acting under that Article, repeal the existing Constitution and replace it by a new Constitution.
Justice Khanna was of the opinion that majority view in Golak Nath case that Parliament did not have the power to amend any provisions of Part III of the Constitution so as to take away or abridge the fundamental rights cannot be accepted to be correct. Fundamental Rights contained in Part III of our Constitution can be abridged or taken away in compliance with the procedure prescribed by Article 368, as long as the basic structure of the Constitution remains unaffected.
The Supreme Court with 7:6 majority overruled I. C. Golak Nath Vs State of Punjab (1967) SCR (2) 762 judgment but held that Article 368 does not enable the Parliament to alter the basic structure of the Constitution. The Supreme Court also upheld constitutional validity of 24th and 29th amendment. The Supreme Court also upheld Constitutional validity of Section 2 (a), 2 (b) and first part of Section 3 of 25th amendment but held second part namely “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” constitutionally invalid.