Hearing a religious leader’s challenge to land reform laws, a thirteen-judge bench of the Supreme Court of India held by 7:6 that Parliament can amend any part of the Constitution but cannot destroy its basic structure. The doctrine travelled to Bangladesh in 1989.
Kesavananda Bharati v State of Kerala (1973): The Case That Created the Basic Structure Doctrine
30th Sep 2026, author: admin
| CASE AT A GLANCE | |
|---|---|
| Citation | (1973) 4 SCC 225; AIR 1973 SC 1461 |
| Court | Supreme Court of India (13-judge bench, the largest in its history) |
| Bench | Led by Chief Justice SM Sikri; eleven separate opinions |
| Date | 24 April 1973 |
| Outcome | StateBy 7:6, Parliament's amending power held not to extend to altering the basic structure of the Constitution |
ARTICLE TEXT
On 24 April 1973, the Supreme Court of India delivered what many regard as the most important judgment in its history. In Kesavananda Bharati v State of Kerala, a bench of thirteen judges held, by the narrowest majority, that Parliament’s power to amend the Constitution has an inherent limit: it cannot alter the basic structure of the Constitution. The doctrine has since protected Indian democracy at critical moments, and it was adopted in Bangladesh in the Eighth Amendment case of 1989.
The Background
Swami Kesavananda Bharati was the head of the Edneer Mutt, a Hindu religious institution in Kasaragod, Kerala. In 1970 he challenged Kerala’s land reform laws, which restricted the mutt’s management of its property. By the time the case was heard, the challenge had expanded into a contest over Parliament’s power to amend the Constitution itself.
That contest had a history. In Golaknath v State of Punjab (1967), the Supreme Court held that Parliament could not amend the Constitution to take away or abridge fundamental rights. Parliament responded with the Twenty-fourth Amendment (1971), which declared that its amending power under Article 368 extended to every part of the Constitution, and the Twenty-fifth Amendment, which limited the right to property and protected certain laws from challenge. The Twenty-ninth Amendment placed Kerala’s land reform laws in the Ninth Schedule, beyond judicial review. Kesavananda Bharati’s petition became the vehicle for challenging all of them.
The Hearing
The Chief Justice, SM Sikri, constituted a bench of thirteen judges, the largest ever assembled in India, so that it could reconsider Golaknath, which had been decided by eleven. The hearing lasted sixty-eight days, from October 1972 to March 1973. The celebrated advocate Nani Palkhivala led the arguments against the amendments.
The Decision
The judges wrote eleven separate opinions, running to hundreds of pages. Nine judges signed a short summary of the majority view. The core holdings were these. Golaknath was overruled: Parliament can amend any provision of the Constitution, including the fundamental rights, and the Twenty-fourth Amendment was valid. But by seven to six, the Court held that the power to amend does not include the power to alter the basic structure or framework of the Constitution. The Twenty-fifth Amendment was partly struck down, to the extent that it excluded judicial review. The Twenty-ninth Amendment was upheld.
Justice HR Khanna held the decisive position. He accepted that Parliament could amend fundamental rights, but held that an amendment could not destroy the basic structure. Sikri CJ gave examples of basic features, including the supremacy of the Constitution, the republican and democratic form of government, the secular character of the Constitution, the separation of powers and the federal character of the Constitution. The Court deliberately left the list open.
The political reaction was swift. The day after the judgment, the government appointed Justice AN Ray as Chief Justice, passing over three more senior judges who had been in the majority. All three resigned.
The Doctrine in Action
The doctrine soon proved its value. In Indira Gandhi v Raj Narain (1975), during the Emergency, the Court used it to strike down a constitutional amendment that had placed the Prime Minister’s election beyond judicial scrutiny. In Minerva Mills v Union of India (1980), it struck down provisions of the Forty-second Amendment that had tried to make amendments immune from review. In 2015, in the NJAC case, it struck down a constitutional amendment on the appointment of judges.
Why It Matters for Bangladesh
When the Appellate Division struck down the Eighth Amendment in Anwar Hossain Chowdhury v Bangladesh (1989), it relied directly on Kesavananda Bharati. Every later basic structure case in Bangladesh, including the Fifth, Thirteenth and Sixteenth Amendment cases, draws on its reasoning. For students, the case poses a central question of constitutional theory: can judges who are not elected legitimately limit what the people’s representatives may do to the Constitution? Kesavananda’s answer, that some features are so fundamental that no majority may destroy them, remains powerful and contested.
Sources
- Kesavananda Bharati v State of Kerala, Indian Kanoon: https://indiankanoon.org/doc/257876/
- Anwar Hossain Chowdhury v Bangladesh, 1989 BLD (Spl) 1 (PDF): https://betterjustice.wordpress.com/wp-content/uploads/2013/03/1989-bld-spl-1-8th-amendment-judgment.pdf
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