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Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461
(SM Sikri, C.J., J.M.Shelat,K.S.Hegde, A.N.Grover,A.N.Ray, P.Jaganmohan Reddy, D.G.Palekar,
H.R.Khanna, K.K.Mathew, m.H.Beg, S.N. Dwivedi, A.K.Mukherjea and Y.V. Chandrachud, JJ.)
[The Supreme Court laid down the Theory of Basic Structure in this case. According to this theory, some of the provisions of the Constitution of India form its basic structure which are not amendable by Parliament by exercise of its constituent power under Article 368. See also Indira Nehru Gandhi v. Raj Narain , AIR 1975 SC 2299; Minerva Mills Ltd. v. Union of India , AIR 1980 SC 1789; Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd., AIR 1983 SC 239; L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.] In this case, the validity of 24th, 25th^ and 29th^ amendments to the Constitution of India was challenged. The main question was related to the nature, extent and scope of amending power of the Parliament under the Constitution. The views of the majority were as follows: (1) I.C. Golak Nath v. State of Punjab , AIR 1967 SC 1643 (which had held that fundamental rights were beyond the amending powers of Parliament) was overruled; (2) The Constitution (Twenty-fourth Amendment) Act, 1971 (giving power to Parliament to amend any part of the Constitution) was valid; (3) Article 368, as amended, was valid but it did not confer power on the Parliament to alter the basic structure or framework of the Constitution; The court, however, did not spell out in any exhaustive manner as to what the basic structure/framework was except that some judges gave a few examples. (4) The amendment of Article 368(4) excluding judicial review of a constitutional amendment was unconstitutional. (5) The amendment of Article 31C containing the words “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” was held invalid;
light and direction of the Objectives Resolution adopted on January 22, 1947, which runs as follows:
(1) THIS CONSTITUENT ASSEMBLY declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Constitution; (2) wherein the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside British India and the States, as well as such other territories as are willing to be constituted into the Independent Sovereign India, shall be a Union of them all; and
2 Kesavananda Bharati v. State of Kerala
(3) wherein the said territories, whether with their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the law of the Constitution, shall possess and retain the status of autonomous units, together with residuary powers, and exercise all powers and functions of government and administration, save and except such powers and functions as are vested in or assigned to the Union, or as are inherent or implied in the Union or resulting therefrom; and (4) wherein all power and authority of the Sovereign Independent India, its constituent parts and organs of government, are derived from the people; and (5) wherein shall be guaranteed and secured to all the people of India justice, social, economic and political; equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality; and (6) wherein adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes; and (7) whereby shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea and air according to justice and the law of civilized nations; and (8) this ancient land attains its rightful and honoured place in the world and makes its full and willing contribution to the promotion of world peace and the welfare of mankind.
It seeks very feebly to tell the world of what we have thought or dreamt for so long, and what we now hope to achieve in the near future. It is in that spirit that I venture to place this Resolution before the House and it is in that spirit that I trust the House will receive it and ultimately pass it. And may I, Sir, also with all respect, suggest to you and to the House that, when the time comes for the passing of this Resolution let it be not done in the formal way by the raising of hands, but much more solemnly, by all of us standing up and thus taking this pledge a new.
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namely, the people of India. The Constitution has all the essential elements of a federalstructure as was the case in the Government of India Act, 1935, the essence of federalism being the distribution of powers between the federation or the Union and the States or the provinces. All the Legislatures have plenary powers but these are controlled by the basic concepts of the Constitution itself and they function within the limits laid down in it. All the functionaries, be they legislators, members of the executive or the judiciary take oath of allegiance to the Constitution and derive their authority and jurisdiction from its provisions. The Constitution has entrusted to the judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights. It is a written and controlled Constitution. It can be amended only to the extent of and in accordance with the provisions contained therein, the principal provision being Article 368. Although our Constitution is federal in its structure it provides a system modeled on the British parliamentary system. It is the executive that has the main responsibility for formulating the governmental policy by “transmitting it into law” whenever necessary. “The executive function comprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State”. With regard to the civil services and the position of the judiciary, the British model has been adopted in as much as the appointment of judges both of the Supreme Court of India and of the High Courts of the States is kept free from political controversies. Their independence has been assured. But the doctrine of parliamentary sovereignty as it obtains in England does not prevail here except to the extent provided by the Constitution. The entire scheme of the Constitution is such that it ensures the sovereignty and integrity of the country as a Republic and the democratic way of life by parliamentary institutions based on free and fair elections.
that our 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 of being so adjusted as to be able to respond to those new 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 contains certain features which are so essential that they cannot be changed or destroyed. In any event it cannot be destroyed from 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 do not 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
Kesavananda Bharati v. State of Kerala 5
with those features are incorporated, it cannot still remain the Constitution referred to in Article 368. The personality of the Constitution must remain unchanged.
been raised, it will be necessary to make a few prefatory remarks with regard to the Constitution. The Constitution is not an indigenous product. Those who framed it were thoroughly acquainted with the Constitutions and constitutional problems of the more important countries in the world, especially, the English-speaking countries. They knew the Unitary and Federal types of Constitutions and the Parliamentary and Presidential systems of Government. They knew what constitutions were regarded as “flexible” constitution and what constitutions were regarded as “rigid” constitutions. They further knew that in all modern written constitutions special provision is made for the amendment of the Constitution. Besides, after the Government of India Act, 1935, this country had become better acquainted at first hand, both with the Parliamentary system of Government and the frame of a Federal constitution with distribution of powers between the Centre and the States. All this knowledge and experience went into the making of our Constitution which is broadly speaking a quasi- Federal constitution which adopted the Parliamentary system of Government based on adult franchise both at the Centre and in the States.
Kesavananda Bharati v. State of Kerala 7
for great public ends in the future, is not a pale intellectual concept but a dynamic idea which must dominate in any consideration of the width of the amending power. No existing Constitution has reached its final form and shape and become, as it were a fixed thing incapable of further growth. Human societies keep changing; needs emerge, first vaguely felt and unexpressed, imperceptibly gathering strength, steadily becoming more and more exigent, generating a force which, if left unheeded and denied response so as to satisfy the impulse behind it, may burstforth with an intensity that exacts more than reasonable satisfaction. As Wilson said, a living Constitution must be Darwinian in structure and practice. The Constitution of a nation is the outward and visible manifestation of the life of the people and it must respond to the deep pulsation for change within. “A Constitution is an experiment as all life is an experiment”. If the experiment fails, there must be provision for making another. Jefferson said that there is nothing sanctimonious about a Constitution and that nobody should regard it as the Ark of the Covenant, too sacred to be touched. Nor need we ascribe to men of preceding age, a wisdom more than human and suppose that what they did should be beyond amendment. A Constitution is not an end in itself, rather a means for ordering the life of a nation. The generation of yesterday might not know the needs of today, and, ‘if yesterday is not to paralyse today’, it seems best to permit each generation to take care of itself. The sentiment expressed by Jefferson in this behalf was echoed by Dr Ambedkar. If there is one sure conclusion which I can draw from this speech of Dr Ambedkar, it is this: He could not have conceived of any limitation upon the amending power. How could he have said that what Jefferson said is “not merely true but absolutely true”, unless he subscribed to the view of Jefferson that “each generation is a distinct nation with a right, by the will of the majority to bind themselves but none ‘to bind the succeeding generations more than the inhabitants of another country”, and its corollary which follows as ‘the night the day’ that each generation should have the power to determine the structure of the Constitution under which they live. And how could this be done unless the power of amendment is plenary, for it would be absurd to think that Dr Ambedkar contemplated a resolution in every generation for changing the Constitution to suit its needs and aspirations. I should have thought that if there is any implied limitation upon any power, that limitation is that the amending body should not limit the power of amendment of the future generation by exercising its power to amend the amending power. Mr Palkhivala said that if the power of amendment of the amending power is plenary, one generation can, by exercising that power, take away the power of amendment of the Constitution from the future generations and foreclose them from ever exercising it. I think the argument is too speculative to be countenanced. It is just like the argument that if men and women are given the freedom to choose their vocations in life, they would all jump into a monastery or a nunnery, as the case may be, and prevent the birth of a new generation; or the argument of some political thinkers that if freedom of speech is allowed to those who do not believe in it, they would themselves deny it to others when they get power and, therefore, they should be denied that freedom today, in order that they might not deny it to others tomorrow.
S. R. Bommai v. Union of India 1994 (3) SCC 1 (S.Ratnavel Pandian, A.M.Ahmadi, Kuldip Singh, J.S.Verma, P.B.Sawant, K.Ramaswamy, S.C.Agrawal, Yogeshwar Dayal and B.P.Jeevan Reddy, JJ.) [ President’s Rule in States under Article 356 – grounds and scope of judicial review ]
In this case, the court examined issues such as the nature of Indian Constitution, certain aspects of the centre-state relations, circumstances under which imposition of President’s rule in the states could be justified, scope of judicial review of President’s satisfaction in imposing President’s rule in a State, dissolution of the State Assembly and the effect of dissolution on disapproval of the proclamation by Parliament, power of the Supreme Court to invalidate the proclamation and its effect on the dissolution of the Assembly.
FACTS IN S.R. BOMMAI’S APPEAL
On March 5, 1985 elections were held to the Karnataka State Legislative Assembly. The Janata Dal won 139 seats out of 225 seats and the Congress Party was the next largest party securing 66 seats. Shri R.K. Hegde was elected as the leader of Janata Dal and became the Chief Minister. Due to his resignation on August 12, 1988, Shri S.R. Bommai, was elected as leader of the party and became the Chief Minister. As on February 1, 1989, the strength of Janata Dal was 111; the Congress 65 and Janata Party 27, apart from others. On April 15, 1989, the expansion of the Ministry caused dissatisfaction to some of the aspirants. One KalyanMolakery and others defected from Janata Dal and he wrote letters on April 17 and 18, 1989 to the Governor enclosing the letters of 19 others expressing want of confidence in Shri Bommai. On April 19, 1989, the Governor of Karnataka sent a report to the President. On April 20, 1989, 7 out of 19 MLAs that supported KalyanMolakery, wrote to the Governor that their signatures were obtained by misrepresentation and reaffirmed their support to Shri Bommai. On the same day, the Cabinet also decided to convene the Assembly session on April 27, 1989 at 3.30 p.m. to obtain vote of confidence. Shri Bommai met the Governor and requested him to allow floor-test to prove his majority and he was prepared even to advance the date of the session. In this scenario, the Governor sent his second report to the President and exercising the power under Article 356, the President issued Proclamation, dismissed Bommai government and dissolved the Assembly on April 21, 1989 and assumed the administration of the State of Karnataka. When a writ petition was filed on April 26, 1989, a special bench of three Judges of the High Court of Karnataka dismissed the writ petition [ S.R. Bommai v. Union of India , AIR 1990 Kant. 5].
SRI RAM JANMABHOOMI-BABRI MASJID ISSUE
In the elections held in February, 1990, the Bhartiya Janata Party [BJP] emerged as majority party in the Legislative Assemblies of Uttar Pradesh, Madhya Pradesh, Rajasthan and Himachal Pradesh and formed the Governments in the respective States. One of the programmes of the BJP was to construct a temple for Lord Sri Rama at his birthplace Ayodhya. That was made an issue in its manifesto for the
10 S. R. Bommai v. Union of India
by three-fourths of the States. Besides under that Constitution there is a single legislative list enumerating the powers of the Union and, therefore, automatically the other subjects are left to the States. This is evident from the Tenth Amendment. Of course, the responsibility to protect the States against invasion is of the Federal Government. The States are, therefore, prohibited from entering into any treaty, alliance, etc., with any foreign power. The principle of dual sovereignty is carried in the judicial set-up as well since disputes under federal laws are to be adjudicated by federal courts, while those under State laws are to be adjudicated by State courts, subject of course to an appeal to the Supreme Court of the United States. The interpretation of the Constitution is by the United States Supreme Court.
S. R. Bommai v. Union of India 11
The exercise of powers, legislative and executive, in the allotted fields is hedged in by the numerous restrictions, so that the powers of the States are not co-ordinate with the Union and are not in many respects independent. 18.In Union of India v. H.S. Dhillon [(1971) 2 SCC 779] another feature in regard to the distribution of legislative power was pointed out, in that, under the Government of India Act, 1935, the residuary power was not given either to the Union Legislature or to the provincial legislatures, but under our Constitution, by virtue of Article 248, read with Entry 97 in List I of the VII Schedule, the residuary power has been conferred on the Union. This arrangement substantially differs from the scheme of distribution of powers in the United States of America where the residual powers are with the States.
