S.M. Sikri
Amending power reaches every article — but stops at the Constitution's basic foundation and structure, resting on "the dignity and freedom of the individual."
Thirteen judges sat longer than any bench before them to answer one question: could Parliament rewrite anything — even freedom itself? The answer drew the boundary that protects Indian democracy to this day.
In March 1970, the head of a small Hindu monastery in Kasaragod, Kerala, walked into the Supreme Court to protect his land. He walked out having changed the destiny of the Republic.
His Holiness Kesavananda Bharati, pontiff of the Edneer Mutt, challenged the Kerala Land Reforms Act, 1963 — a law that threatened the Mutt's property. Filed on 21 March 1970 under Article 32, his petition seemed routine. But Kerala kept amending its land laws while the case waited, and Parliament kept amending the Constitution itself.
By the time the hearing began, three constitutional amendments — the 24th, 25th and 29th — hung in question, and behind them loomed the real battle fought since 1951 between Parliament and the courts: who holds the final say over the Constitution?
Led by Nani Palkhivala — among the finest advocates the bar has produced — the petitioners argued that some things must lie beyond the reach of even a two-thirds majority. The State, through Attorney General Niren De and H.M. Seervai, argued the opposite: the people gave Parliament the power to amend, and no court may stand in its way.
The First Amendment creates Articles 31A–31B and the Ninth Schedule to shield land reform laws. The Court holds constitutional amendments are not "law" under Article 13(2) — Parliament may amend fundamental rights.
A 3:2 bench reaffirms Shankari Prasad — but Justices Hidayatullah and Mudholkar voice open doubt: can amendment really touch the Constitution's foundations?
Eleven judges, 6:5: amendments are "law" under Article 13(2). Parliament cannot abridge fundamental rights — not even by constitutional amendment. Parliament's response is swift.
The 24th Amendment declares Parliament's amending power reaches every provision, including Part III, and makes presidential assent compulsory. The 25th replaces "compensation" with "amount" and adds Article 31C, immunising laws that implement Articles 39(b)–(c).
Two Kerala Land Reforms Acts are placed in the Ninth Schedule beyond fundamental-rights challenge — the very Acts under challenge in this case.
Thirteen judges sit for 68 days — the largest bench and longest hearing in the Court's history. Seventy-one foreign constitutions, centuries of precedent, and acres of argument are laid before them.
Is Article 368 a licence without limit — so that a transient two-thirds majority could amend away freedom, faith, federalism, democracy itself?
Parliament, in exercise of its constituent power, may amend any provision of this Constitution.
The State's position: the people gave Parliament the amending power, and whatever Parliament enacts under it becomes the Constitution itself. There is no higher norm to appeal to.
The State shall not make any law which takes away or abridges the rights conferred by this Part.
The petitioners' position: "amendment" means repair, not destruction. A power to amend cannot include a power to annihilate the Constitution's identity.
Sikri C.J. put the stakes bluntly:
“Short of repeal of the Constitution, any form of Government with no freedom to the citizens can be set up by Parliament by exercising its powers under Article 368.”
Amending power reaches every article — but stops at the Constitution's basic foundation and structure, resting on "the dignity and freedom of the individual."
"One cannot legally use the Constitution to destroy itself… The personality of the Constitution must remain unchanged."
Basic elements include unity and integrity of the nation. Of the 25th Amendment: "It has finally crossed the boundary."
"Amendment" postulates retention of identity. Article 368 embodies no "death wish" of the Constitution, no sanction for "its lawful harakiri." Struck down the ouster clause of Article 31C.
An amendment keeps alive; a repeal destroys. Remove the Preamble's values and "the Constitution collapses."
"The people gave the Constitution to the people. The people gave the power of amendment to Parliament." No express limits; none implied.
"It is not the function of the court to invent limitations where there are none." The core theory opens "a Pandora's box of endless litigation."
Wrestled with implied limitations "like Jacob with the angel" — and found none. Rights are vessels each generation fills anew.
Checks on amendment are political, not judicial: "Courts… can only speak for the Constitution."
Article 368 permits "not only the physician's needle but also the surgeon's saw." Parliament is "creator, not creature."
The power must be unfettered — yet he warned: if social objectives become "a dustbin of sentiments, woe betide those in whom the country has placed such massive faith."
Golak Nath stood overruled. Parliament could touch any article — including fundamental rights. Yet by the narrowest possible margin, the Court held that what makes the Constitution a Constitution could not be destroyed. Chief Justice Sikri retired the next day. The judgment would define the next fifty years.
Seven justices refused to give the doctrine a fixed shape — deliberately. The basic structure is not a list; it is a boundary. What the majority named, in their own words:
Sikri, CJ · Shelat & Grover, JJ · Reddy, J
Sikri, CJ · Shelat & Grover, JJ · Reddy, J
Sikri, CJ · Shelat & Grover, JJ · Khanna, J
Sikri, CJ · Shelat & Grover, JJ · Reddy, J
Sikri, CJ · Khanna, J
Sikri, CJ — the foundation beneath the structure
Shelat & Grover, JJ
Shelat & Grover, JJ
Hegde & Mukherjea, JJ · Reddy, J
Khanna, J — excluding review strikes at the basic structure
Notably absent: the right to property. Khanna J. held it "does not pertain to the basic structure" — a matter of detail, not identity. The list remains open; later cases added free and fair elections, rule of law, and limited amending power itself.
No generation has a monopoly of wisdom nor has any generation a right to place fetters on future generations to mould the machinery of government and the laws according to their requirements.— H.R. Khanna, J., para 1445
One cannot legally use the Constitution to destroy itself… The personality of the Constitution must remain unchanged.— Hegde & Mukherjea, JJ., para 690
A political party with a two-third majority in Parliament for a few years could so amend the Constitution as to debar any other party from functioning, establish totalitarianism, enslave the people.— Sikri, C.J., para 309
The people gave the Constitution to the people. The people gave the power of amendment to Parliament.— A.N. Ray, J., para 789
The edifice of our Constitution is built upon and stands on several props, remove any of them, the Constitution collapses.— P. Jaganmohan Reddy, J., para 1206
Article 368 permits Parliament to apply not only the physician's needle but also the surgeon's saw. It may amputate any part of the Constitution.— S.N. Dwivedi, J., para 1964
Whether one likes it or not, it is not the function of the court to invent limitations where there are none.— D.G. Palekar, J., para 1314
Fundamental Rights themselves have no fixed content; most of them are mere empty vessels into which each generation must pour its content.— K.K. Mathew, J., para 1776
If despite the large powers now conceded to the Parliament, the social objectives are going to be a dustbin of sentiments, then woe betide those in whom the country has placed such massive faith.— Y.V. Chandrachud, J., para 2240
Struggle between liberty and power is eternal. Vigilance is the price that we, like every other democratic society, have to pay.— K.S. Hegde, J., para 705
Two days after the verdict, the government appoints Justice A.N. Ray — author of the leading dissent — as Chief Justice, passing over Justices Shelat, Hegde and Grover, three of the seven in the majority. The independence of the judiciary faces its gravest test.
In Indira Nehru Gandhi v. Raj Narain, the doctrine strikes down the clause that placed the Prime Minister's election beyond judicial review.
Fundamental rights suspended, press censored, opponents jailed — precisely the scenario the majority had warned against.
The 42nd Amendment inserts clauses (4) and (5) into Article 368: no limitation whatsoever on amending power, and no court may question any amendment. Kesavananda is directly targeted.
A bench led by Chandrachud J. — once in the Kesavananda minority — strikes down those clauses 4:1. Judicial review and limited amending power are themselves basic features. The doctrine survives its attempt at burial.
Waman Rao fixes 24 April 1973 as the cut-off for Ninth Schedule protection. In I.R. Coelho (2007) the Court confirms post-Kesavananda laws remain open to basic-structure scrutiny. Courts from Bangladesh to Uganda, Belize to Pakistan have borrowed the doctrine — India's most consequential export in constitutional law.