Keshavanand Bharti Versus State Of Kerala (1973) 4 Scc 225

Keshavanand Bharti Versus  State Of Kerala (1973) 4 Scc 225

This case, popularly known as the ‘Fundamental Rights case’, involved the interpretation of the amending power conferred by Article 368. Article 368 provides that Parliament may, in exercise of its constituent power, amend by way of addition, variation or repeal any provision of the Constitution in accordance with the procedure laid down in the Article.

In order to remove difficulties created by the decision in Golak Nath’s case, Parliament enacted the 24th Amendment Act, 1971. It not only restored the amending power of Parliament but extended its scope by adding the words in Article 368, “to amend by way of the addition or variation or repeal any provision of this Constitution in accordance with the procedure laid down in this Article.”

The principal question before the Supreme Court in the present case was whether the Golak Nath case was to be upheld or overruled.

A special bench of 13 judges unanimously upheld the constitutional validity of the Constitution 24th Amendment Act, 1971 and in doing so overruled the prior decision of the Supreme Court in Golak Nath’s case and cleared the way for upholding the validity of the other Constitution Amendment Acts which were questioned before the Special Bench in the writ petitions. The views of the majority of the Special Bench were recorded as under:

Golak Nath’s case was overruled and the Majority held that Article 368, even before the 24th Amendment, contained the power as well as the procedure of amendment. The 24th Amendment merely made explicit what was implicit in the unamended Article 368-A. Hence, limitations upon the amending power must be found from Article 368 itself.

THE MINORITY VIEW

The Minority held that there are no limitations, express or implied, on the amending power. The word “amendment” did not include the power to completely abrogating the Constitution at one stroke. It was, however, wide enough to erode the Constitution completely, step by step, so as to replace it by another Constitution. Thus, Fundamental rights can be abrogated

The Parliament has wide powers of amending the Constitution and it extends to all the Articles, but amending power is not unlimited and does not include the power to destroy or abrogate the ‘basic feature’ or ‘framework’ of the Constitution. There are implied or inherent limitations on the power of amendment under Article 368. Within these limits Parliament can amend every Article of the Constitution.

Whether there are implied limitations on the amending power or not would depend upon the interpretation of the word ‘amendment’. Khanna, J., said that the word ‘amendment’ postulated that the old Constitution must survive without loss of identity and must be retained though in the amended form and, thus, the power does not include the power to abrogate the basic structure.

Sikri, C.J., said that the word “amendment” must derive its colour from Article 368b and the rest of the constitutional provisions. Reading the Preamble, the fundamental importance of the freedom of the individual, the importance of Directive Principles, and various other provisions, a conclusion emerges that it was not the intention of the Constitution makers to use the word “amendment” in the widest sense.

‘Basic Structure’ – According to Sikri, C.J., the ‘basic structure’ was built on the basic foundation, i.e. the freedom and dignity of the individual; the basic structure of the Constitution consists of the following features-

Supremacy of the Constitution

Republican and Democratic form of Government, and sovereignty of country,

Secular and federal character of the Constitution

Separation of powers between Legislature, Executive and Judiciary.

It was, however, wide enough to erode the Constitution completely, step by step, so as to replace it by another Constitution.

-LawZ Bureau

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