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Lakshay Adlakha, III year of B.B.A., LL.B.(Hons.) from The Northcap University, Gurugram

Conflict between Zamindars and Government

The legislature of independent India under Prime Minister Jawaharlal Nehru had a socialist bent of mind which translated to redistribution of wealth by transfer from the wealthy to the poor, especially land. The Bihar Land Reforms Act, 1950 did precisely this.

It abolished the rights of the Zamindars inland and transferred them to the State. The Act was challenged by the Zamindars in the High Court and in 1951, the Patna High court passed a judgement invalidating the Bihar Land Reforms Act, 1950.

After the ruling of the Patna High Court, the Constituent Assembly passed the Constitution (First Amendment) Act 1951. The Amendment brought changes to the Right to the property as defined under Article 31 of the Constitution. The article said that nobody’s property can be taken away except by the Authority of law and that too after giving that person adequate compensation for it.

The said amendment added Article 31A which upheld the validity of all state legislation which abolished Zamindari rights, including the Bihar Land Reforms Act, 1950 with retrospective effect. It also added Article 31B, under which a 9th Schedule was inserted in the Constitution. Any legislation which would be added to the 9th Schedule was protected from judicial intervention.

The validity of any legislation i.e., an Act of Parliament or any State Government can be challenged before the High Court and Supreme Court if they violate the Constitution. This is called judicial review. But all Acts placed under the 9th Schedule would be exempted from judicial review. So, the Parliament or the State Governments can enact any legislation and just place it under the umbrella of the 9th Schedule and it cannot be challenged by the judiciary. This was done to limit the powers of the judiciary and prevent judicial scrutiny to the functions of Parliament.

The amendment was challenged by Zamindars in the case of Shankari Prasad,[i] on the ground that in Article 13(2) of the Constitution, it is clearly stated that parliament cannot make laws that are inconsistent with Fundamental Rights. The term law here includes both Ordinary laws and the Constitutional Amendment. But the Supreme Court rejected the contention stating that there was a clear line of distinction between Ordinary law and Constitution Amendments, therefore, amendments could not be subject to judicial intervention.

In Sajjan Singh v. State of Rajasthan[ii], the court once again stated that an amendment to the Constitution was not ‘law’ under Article 13(2) of the Constitution and therefore could not be reviewed by courts. It thus upheld the 17th Constitutional Amendment. However, Justice Mudholkar, through his judgement, in this case, sowed the seeds of the basic structure doctrine by referring to the intention of the Constituent Assembly to give permanency to the basic features of the Constitution.[iii]

Role of Golak Nath Case

Could the Parliament amend fundamental rights? This issue was raised yet again in I.C. Golak Nath v. State of Punjab[iv]. The petitioner was a landowner whose 418 acres of land was declared surplus, and he was then deprived of this ‘surplus’ landholding under the Punjab Security of Land Tenures Act, 1953. They challenged the validity of this Act and the First, Fourth and Seventeenth Amendments. The Punjab Security of Land Tenures Act, 1953 was also inserted into the Ninth Schedule which made it immune to judicial review on the grounds of violation of Article 14, 19 or 31.

The Supreme Court constituted an eleven-judge bench to examine, yet again, whether constitutional amendments could be passed to take away or abridge Fundamental Rights and whether courts could review such amendments.

By a slender majority of 6:5, the Supreme Court ruled that the Constitutional Amendments fell within the purview of ‘law’ under Article 13(2) and courts could review them if they violated the Fundamental Rights of citizens.

The Court applied the American doctrine of prospective overruling. Normally any decision of the Supreme Court applies retrospectively. But in this case, the decision would only apply to all future Acts i.e., prospectively, meaning ‘prospective overruling.

Therefore, ironically, despite getting the decision in their favour, the petitioners in Golak Nath got no relief. Eventually, the Parliament sought to reconcile whether Constitutional Amendments were ‘law’ under Article 13 by passing the Constitution (Twenty-fourth Amendment) Act, 1971 and inserting Article 13(4) to expressly exclude Constitutional Amendments from the ambit of Article 13.

Through this Amendment, the Parliament nullified the Supreme Court’s decision in Golak Nath and ensured that amendments to the Constitution could once again not be reviewed by courts even if they violated the Fundamental Rights of citizens

Kesavananda Bharati Case

Swami Kesavananda Bharati was the head of Edneer Mutt in Kerala. In 1970, he challenged the Kerala Land Reforms Act, 1963 (Amended in 1969) which had affected the property of his religious institution.[v] The Act permitted the State Government to acquire a part of the land which at the time belonged to the religious institution managed by Swami Keshavananda. During the pendency of the petition, the Parliament passed the Constitution (29th Amendment) Act, 1972. The amendment placed the Kerala Act of 1963 in the 9th Schedule of the Constitution.

Nani Palkhivala, one of the most brilliant legal minds of the twentieth century was the petitioner’s counsel. He was permitted to challenge the constitutional validity of the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments to the Constitution.

The Supreme Court looked back on its decision in Shankari Prasad, Sajjan Singh and Golak Nath. The Supreme Court had to examine the extent of Parliament’s power to amend the Constitution.

In this case, a bench of 13 Judges, the largest in the history of the Supreme Court, took 5 months to write an almost 800 pages long judgement to answer the question and introduce the concept of the Basic Structure Doctrine. For the first time in history, the judges gave a summary of their individual decisions. The Supreme Court’s most memorable decision was the one which was passed by a slender majority of 7:6. It stated that the Parliament had the power to amend any part of the Constitution but it could not touch upon the basic structure of the Constitution. The court observed that amending the Constitution does not mean changing the Constitution such that it loses its identity or essence.[vi]

According to C.J. Sikri, the Basic Structure of the Constitution constitutes the “supremacy of the Constitution, republican and democratic form of government, secular character of the Constitution, separation of powers between the legislature, executive and judiciary, and the federal character of the Constitution.[vii]”

It is also notable that every Judge in the bench gave a slightly different list of what he thought constituted the Basic Structure of the Constitution and a host of subsequent judgements have been added to this list.

While defining the basic structure of the Constitution, most Judges relied upon the Preamble, the Fundamental Rights and the Directive Principles of State Policy (DPSP) but that doesn’t necessarily mean that these principles are the only ones that constitute the framework of the Constitution. The judges are free to elaborate, expand or amend the meaning of the Basic Structure as required by the time.

Supreme Court’s view

In this case, the Supreme Court significantly expanded its power of judicial review of Constitutional Amendments. The Supreme Court observed that the Parliament’s power to amend is not limitless and is always coextensive with that of people. It is to ensure that people’s representatives who are meant to serve the Constitution would not become its masters.

The Supreme Court has the power to determine the meaning of the term ‘basic structure’ and ensure the stability of the nation. The Supreme court has the custody of constitution and therefore can make certain parts of the Constitution immune to the amendment.

Criticism of Kesavananda Bharati Judgement

The basic structure doctrine finds no direct mention in the Constitutional texts or the intent of the Constituent Assembly. Due to the length of the judgement, it becomes uncertain to determine what basic structure comprises[viii].

The ambiguity in the basic structure doctrine is in the fact that it is dependent upon the interpretation of Judges.

The basic structure doctrine has also been sharply criticized as being counter-majoritarian since it gives inordinate power to the Supreme Court. It means that some oppose this power of the Supreme Court that may or may not reflect the will of the majority. The Court was clear in its message that no other authority but the Judiciary itself should wield the power of interpretation of the Constitution.

Attempt to Review Kesavananda Bharati

In 1975, while the nation was in the midst of the national emergency declared by PM Indira Gandhi, CJI AN Ray constituted a bench of 13 judges to review Kesavananda’s decision. The bench was dissolved after 2 days and much of the hearing or opinions are still a secret. One of the petitioners, Adv. Govind Swaminathan, the Advocate General of Tamil Nadu uprightly and flatly denied having asked for a review of the Kesavananda Bharati judgement when asked by Chief Justice Ray.

Parliament’s final and failed attempt to nullify Kesavananda Bharati

Amidst the emergency, the parliament passed the infamous Constitution (42nd Amendment) Act, 1976. It also inserted Part IV A into the Constitution- Fundamental Duties of citizens. The terms ‘socialist’ and ‘secular were also added to the Preamble of the Constitution through this amendment. An amendment was also made to Article 368 which nullified the Kesavananda Bharati decision and thereby strengthening the legislature.

In Minerva Mills v. Union of India [ix], the amendment was challenged and the Court unanimously struck down the amendments to Article 368. The Court held that judicial review and a limited amending power were basic features of the Constitution, which could not be altered, destroyed or nullified. Parliament’s failed attempt to nullify the Basic Structure Doctrine and the Minerva Mills judgment clarifies that the Supreme Court is the final arbiter and interpreter of the Constitution.


The Kesavananda Bharati case thus further established the prestige of the Supreme Court as the vanguard against the trampling of fundamental rights of the citizens and the guardian and interpreter of the Indian Constitution.

Nani Palkhivala, through his sublime advocacy and rock-solid arguments, protected the soul of the Indian Constitution from being defaced and poisoned by a power-hungry government.

Subsequent events have demonstrated the need for the Basic Structure Doctrine and it has acted as a bulwark against repeated and shameful attempts by politicians to subvert the Constitution. Thus, through this case, democracy as we know it and the rule of law for a civilized society was saved.


[i]Shankari Prasad v. Union of India, (1952) 1 SCR 89.

[ii]Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.

[iii]Ramachandran, “Sudhir Krishnaswamy: Democracy And Constitutionalism In India - A Study Of The Basic Structure Doctrine”.

[iv]I.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643.

[v]Kesavananda Bharati v. State of Kerala, (1983) 4 SCC 225.

[vi]Zia Mody, “10 judgements that changed India.

[vii] Lavanaya Kaushik, “The Place Of ‘Judicial Review' In Indian Constitution & Its History”.

[viii]Tewari, Manish, And Rekha Saxena. “The Supreme Court of India: The Rise of Judicial Power and the Protection of Federalism.”

[ix]Minerva Mills v. Union of India, AIR 1980 SC 1789.


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