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 is precisely the question the Supreme Court settled in Kesavananda Bharati v. State of Kerala (1973). The answer: Parliament can amend any provision, but it cannot damage or destroy the basic structure of the Constitution.
Where does the text of the Constitution say "basic structure"?
Nowhere. And that is the whole controversy. It is a judicial construct, the Court reasoned that "amend" cannot mean "abrogate", so an implied limitation exists even though Article 368 contains no express one. Critics call it judicial legislation. Defenders call it the only guard against constitutional suicide.
Trace the path that forced the Court there.
Shankari Prasad (1951) and Sajjan Singh (1965): Parliament can amend fundamental rights. Golaknath (1967): reversed, it cannot. Kesavananda (1973): overruled Golaknath, restoring the amending power, but capping it with the basic structure limit.
1951 Shankari Prasad → can amend FRs
1967 Golaknath → cannot
1973 Kesavananda → can, but not the basic structureSo Kesavananda handed Parliament back a power it had lost. That sounds like a parliamentary victory.
On the surface, yes, and that is the trap. In substance, the Court handed itself the final say over what the basic structure is. Parliament won the battle over Golaknath; the judiciary won the war. A 13-judge bench decided it by a bare 7–6 majority.
Name what sits inside the basic structure.
There is no closed list, it accretes case by case. Recognised elements include supremacy of the Constitution, the rule of law, judicial review, separation of powers, federalism, secularism, free and fair elections, and the parliamentary system.
Test it. The 42nd Amendment tried to make amendments immune from judicial review.
Minerva Mills (1980) struck that down. If Parliament could exclude review of its own amendments, it would hold unlimited power, exactly what Kesavananda forbade. The Court also held that the balance between Fundamental Rights and Directive Principles is itself part of the basic structure.
Give me the line you would actually write in the exam.
Parliament's amending power is wide but not unlimited: it may alter any article, but not so as to destroy the Constitution's identity. Kesavananda 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.