HIS HOLINESS KESAVANANDA BHARATI SRIPADAGALAVARU Vs STATE OF KERALA [1973] SUPP. 1 S.C.R. 1

Date of decision : 24-04-1973 | Case Number : WRIT PETITION (CIVIL)/135/1970 | Direction Issue : Remitted to Constitution Bench

Judge Name: S.M. SIKRI, J.M. SHELAT, K.S. HEGDE, A.N. GROVER, A.N. RAY, P. JAGANMOHAN REDDY, D.G. PALEKAR, HANS RAJ KHANNA, KUTTYIL KURIEN MATHEW, M. HAMEEDULLAH BEG, S.N. DWIVEDI, A.K. MUKHERJEA, Y.V. CHANDRACHUD

SUPREME COURT OF INDIA

Constitution of India, 1950-Artick 368 before Constitution (Twenty Fourth) Amendment Act, 197!-Nature and scope of the amending power.

Article 13(2)-‘Law’ in 13(2) if includes amendment of the Constitution- Distinction between legislative power and constituent power.

Article 368-“Amendment” meaning of-“Amcndmcnt” if includes the power to abrogate the Constitution-If includes the power to alter the basic structure or frame-work of the Constitution,
Fundamental Rights-If amendment can take away or abridge the rights guaranteed in Part III.
Fundamental Righu–If inalienable natur31 rights so as to operate as restriction on the amending power.

Implied and inherent limitations-Power of amendment if subject to inherentor implied limitations.
Preamble-Nature-Preamble, if operates as a source of implied limitationon the power of amendment.
Constitution (Twenty Faurth) Amendment Act 1971-Validity of-Amendent if enlargement of the limits of the Amending power.

Article 368-lf there are inherent or implied limitations in the article ..amended. Constitution (Twenty Fifth) Amendment Act, 1971-Validity of.

The question whether the fundamental rights set out in Part III of the Con-
stitution could be taken away or abridged by amendment of the Constitution
was first considered by this Court in Sankari Prasad v. Union of India, [1952]
S.C.R. 89. In Sankari Prasad the validity of the Constitution (First Amendment)
Act 1951, was challenged. The First Amendment made changes in articles 15
and 19 of the Constitution and inserted articles 31A and 31B. The principal
contention was that the First Amendment in so far as it purported
to take away or abridge the rights conferred by Part _III of the Constitution fell within the prohibition of article 13(2) of the Constitution.

The Court unanimously held that the word ‘law’ in article 13(2) was relatable
to exercise of ordinary legislative power and not amendments to the Constitution
and that the terms of article 368 were general to empower Parliament to amend
the Constitution without any exception. The question came up again in Sajjan
Singh v. State of Rajasthan, [1965] 1 S.C.R. 938, wherein the validity of the
Constitution (Seventeenth Amendment) Act 1964, was challenged. The majority
view in Sajjan Singh was that article 368 plainly and unambiguously meant
amendment of all provisions of the Constitution and that the ward ‘Law’ in
article 13(2) did not take in Constitution Amendments. Thereafter, in
Golaknath v. State of Punjab, the Court held that an amendment
of the Constitution was ‘law’ within the meaning of article 13(2); therefore, if
an amendment took away or abridged the fundamental rights it was void, that
the Constitution First, Fourth and Seventeenth Amendments abridged fundamental
rights but were valid on the application of the doctrine of prospective overruling
or acquiescence and that Parliament had no power from the date of the decision
to amend any of the provisions of Part III so as to take away or abridge the
fundamental rights.

HELD : (By Full Court) : The Constirution (Twenty Fourth) amendment Act, Section 2(a) md 2(b) of the Constirution (Twenty Fifth) Amendment Act and the Constirution (Twenty Ninth) Amendment Act arc valid.

By majority : Per Hegde, Ray, Jaganmohan Reddy, Palekar, Khanna, Mathew, Beg, Dwivedi, Mukhcrjea and Chandrachud, JI : The decision of the majority in Golaknath that the word “law” in article 13(2) included amendments to the Constitution and the article operated as a limitation upon the power to amend the Constitution in article 368 is erroneous and is overruled.

By majority: Per Ray, Palekar, Khanna, Mathew, Beg, Dwivedi and Chandrachud, JJ : The power of amendment is plenary. It includes within itself the power to add, alter or re.peal the various articles of the Constitution including those relating to fundamental rights.

By majority: Per Sikri, C.J. and Shelat, Hegde, Grover, Khanna, Jaganmohan Reddy and Mukherjea, JJ. (Ray, Palekar, Mathew, Beg, Dwivedi and Chandrachud, JJ. dissenting) : The power to amend does not include the power to alter the basic structure or framework of the Constitution so as to change its identity.

By majority: Per Ray, Palekar, Khanna, Mathew, Beg, Dwivedi and Chandrachud JJ. (Sikri, C.J. and Shelat, Hegde, Grover, Mukherjca, JJ. holding contra and Jaganmohan Reddy, J. leaving the question open) : The~ arc no inherent or implied limitations on the power of amendment under article 368.

In the Constitution the word ‘amendment’ or ‘amend’ has been used in various places to mean different things. In view of. the great variation of the phrases used throughout the Constitution it follows that the word ‘amendment’ must derive its root from Article 368 and the rest of the provisions of the Constitution. It is not intended. that the whole Constitution could be repealed.
[p. 103, 107].

It is impossible to equate the directive principles with fundamental rights. To say that Directive Principles give a directive to take away fundamental rights in order to achieve what is directed by the directive principles seems to be a contradiction in terms.

If the argument that there is no limit to the power of Parliament to amend the Constitution is accepted, Article 368 can itself be amended to make the Constitution completely flexible or extremely rigid and unnameable. If this is so 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 and after having effected these purposes make the Constitution unnameable or extremely rigid.

Apart from the historical background and the scheme of the Constitution the use of Preamble has always been made and is permissible i£ the word ‘amendment’ has more than one meaning. The Constitution makers gave to the Preamble the pride of place. It embodied in a solemn form all the ideals and aspirations for which the Country had struggled during the British regime and a Constitution was sought to be enacted in accordance with the wish of the Indian people. It is not without significance that the Preamble was passed only after the draft articles of the Constitution had been adopted with such modifications as were approved by the Constituent Assembly. The Preamble was, therefore, meant to embody in a very few and well-defined words the key to understanding of the Constitution. [pp. 235, 236].

Where two constructions arc possible, the Court must adopt that which will insure smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well-established provisions of existing law nugatory. The consequences and effect of suggested construction have to be taken into account as ‘has been
frequently done by this Court [p’. 244].