Basic Structure Doctorine (Constitution of India) - The Kesavananda Case (1973)

The Kesavananda Case (1973)

Six years later in 1973, thirteen judges of the Supreme Court, including then Chief Justice Sikri, heard arguments in Kesavananda Bharati v. The State of Kerala and thus considered the validity of the 24th, 25th and 29th amendments, and more basically the correctness of the decision in the Golak Nath case. This time, the court held, by the thinnest of margins of 7-6, that although no part of the constitution, including fundamental rights, was beyond the amending power of Parliament (thus overruling the 1967 case), the "basic structure of the Constitution could not be abrogated even by a constitutional amendment".

Nani Palkhivala, assisted by Fali Nariman, presented the case against the government in both cases. The decision of the Judges is complex, consisting of multiple opinions taking up one complete volume in the law reporter "Supreme Court Cases". The findings included the following:

• All of the Judges held that the 24th, 25th and 29th Amendments Acts are valid.
• Ten judges held that Golak Nath's case was wrongly decided and that an amendment to the Constitution was not a "law" for the purposes of Article 13.
• Seven judges held that the power of amendment is plenary and can be used to amend all the articles of the constitution (including the Fundamental Rights).
• Seven judges held (six judges dissenting on this point) that "the power to amend does not include the power to alter the basic structure of the Constitution so as to change its identity".
• Seven judges held (two judges dissenting, one leaving this point open) that "there are no inherent or implied limitations on the power of amendment under Article 368".

However nine judges (including two dissentients) signed a statement of summary for the judgment that reads:

The view by the majority in these writ petitions is as follows:
(1) Golak Nath's Case is overruled.
(2) Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.
...

The ruling thus established the principle that the basic structure cannot be amended on the grounds that a power to amend is not a power to destroy.

The rest of the summary articulated the view of the majority on the particular amendments and articles under scrutiny.