Kesavananda Bharati and the limits of amendment
Parliament can amend the Constitution. The question that broke the Supreme Court is whether it can amend it out of existence.
Article 368 lets Parliament amend the Constitution. So can it amend anything?
That's the exact question the Supreme Court settled in Kesavananda Bharati, 1973.
And the answer?
Parliament can amend any provision. But it cannot damage the basic structure.
Where does the text say "basic structure"?
Nowhere. And that's the whole controversy.
So they invented it?
The Court reasoned that "amend" cannot mean "abrogate." An implied limit, even without an express one.
Critics must have hated that.
They call it judicial legislation. Defenders call it the only guard against constitutional suicide.
Trace how the Court got there.
Shankari Prasad, then Sajjan Singh: Parliament can amend fundamental rights.
Then?
Golaknath, 1967: reversed. It cannot.
And Kesavananda?
Overrules Golaknath. Restores the power, but caps it with the basic structure limit.
1951 Shankari Prasad -> can amend FRs
1967 Golaknath -> cannot
1973 Kesavananda -> can, but not the basic structureSo Kesavananda hands Parliament back a power it lost. A parliamentary win.
On the surface, yes. And that's the trap.
What's underneath?
The Court handed itself the final say over what the basic structure is.
So who really won?
Parliament won the battle over Golaknath. The judiciary won the war. A 13-judge bench, decided 7 to 6.
What actually sits inside the basic structure?
No closed list. It accretes case by case. Judicial review, federalism, secularism, free elections.
Test it. The 42nd Amendment tried to bar review of amendments.
Minerva Mills, 1980, struck that down.
On what reasoning?
If Parliament could exclude review of its own amendments, it would hold unlimited power. Exactly what Kesavananda forbade.
The line for the exam?
Parliament's amending power is wide but not unlimited. It made the Constitution amendable, yet indestructible.
↑ answer it in your head first ↑
Traps
- ⚠ Claiming "basic structure" appears in the text of the Constitution. It does not.
- ⚠ Reading Kesavananda as a win for Parliament. It entrenched judicial review.
- ⚠ Treating the basic structure as a fixed, closed list. It accretes case by case.