Kesavananda Bharati ... vs State Of Kerala And Anr on 24 April 1973
Bench: Sikri, S.M. (Cj) Shelat, J.M., Hegde, K.S. & Grover, A.N., Ray, A.N. & Reddy, P.J. & Palekar, D.G., Khanna, Hans Raj Mathew, K.K. & Beg, M.H., Dwivedi, S.N. Mukherjea, B.K. Chandrachud, Y.V.
Writ Petition (civil) 135 of 1970
Kesavananda Bharati Sripadagalvaru and Ors
State of Kerala and Anr
DATE OF JUDGMENT: 24/04/1973
JUDGMENT S.M. Sikri, C.J.
1. I propose to divide my judgment into eight parts. Part I will deal with Introduction; Part II with interpretation of Golakhnath case; Part III with the interpretation of the original Article 368, as it existed prior to its amendment; Part IV with the validity of the Constitution (Twenty-fourth Amendment) Act; Part V with the validity of Section 2 of the Constitution (Twenty-fifth Amendment) Act; Part VI with the validity of Section 3 of the Constitution (Twenty-fifth Amendment) Act; Part VII with Constitution (Twenty-ninth Amendment) Act; and Part VIII with conclusions.
2. All the six writ petitions involve common questions as to the validity of the Twenty- fourth, Twenty-fifth and Twenty-ninth Amendments of the Constitution. I may give a few facts in Writ Petition No. 135 of 1970 to show how the question arises in this petition. Writ Petition No. 135 of 1970 was filed by the petitioner on March 21, 1970, under Article 32 of the Constitution for enforcement of his fundamental rights under Articles 25, 26, 14, 19(1)(f) and 31 of the Constitution. He prayed that the provisions of the Kerala Land Reforms Act, 1963 (Act 1 of 1964) as amended by the Kerala Land Reforms (Amendment) Act 1969 (Act 35 of 1969) be declared unconstitutional, ultra vires and void. He further prayed for an appropriate writ or order to issue during the pendency of the petition. This Court issued rule nisi on March 25, 1970.
3. During the pendency of the writ petition, the Kerala Land Reforms (Amendment) Act 1971 (Kerala Act No. 25 of 1971) was passed which received the assent of the President on August 7, 1971. The petitioner filed an application for permission to urge additional grounds and to impugn the Constitutional validity of the Kerala Land Reforms (Amendment) Act 1971 (Kerala Act No. 25 of 1971).
4. In the meantime, the Supreme Court by its judgment dated April 26, 1971, in Kunjukutty Sahib v. State of Kerala  S.C.C. 364 (Civil Appeals Nos. 143, 203-242, 274 & 309 of 1971). Judgment dated April 26, 1971, upheld the majority judgment of the Kerala High Court in V.N. Narayanan Nair v. State of Kerala A.I.R. 1971 Kerala 98 whereby certain, sections of the Act were struck down.
5. The Constitution (Twenty-fifth Amendment) Act came into force on November 5, 1971, the Constitution (Twenty-fifth Amendment) Act came into force on April 20, 1972, and the Constitution (Twenty-ninth Amendment) Act came into force on June 9, 1972. The effect of the Twenty-ninth Amendment of the Constitution was that it inserted the following Acts in the Ninth Schedule to the Constitution:
65. The Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35 of 1969).
66. The Kerala Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of 1971).
6. The petitioner then moved an application for urging additional grounds and for amendment of the writ petition in order to challenge the above Constitutional amendments.
7. The Court allowed the application for urging additional grounds and for amendment of the writ petition on August 10, 1972 and issued notices to the Advocates-General to appear before this Court and take such part in the proceedings as they may be advised.
8. When the case was placed before the Constitutional bench, it referred this case to a larger bench to determine the validity of the impugned Constitutional amendments.
9. Similar orders were passed in the other writ petitions.
10. The larger bench was accordingly constituted. It was then felt that it would be necessary to decide whether I.C. Golak Nath v. State of Punjab  2 S.C.R. 762 was rightly decided or not. However, as I see it, the question whether Golak Nath's  2 S.C.R. 762 case was rightly decided or not does not matter because the real issue is different and of much greater importance, the issue being : what is the extent of the amending power conferred by Article 368 of the Constitution, apart from Article 13(2), on Parliament ?
11. The respondents claim that Parliament can abrogate fundamental rights such as freedom of speech and expression, freedom to form associations or unions, and freedom of religion. They claim that democracy can even be replaced and one-party rule established. Indeed, short of repeal of the Constitution, any form of Government with no freedom to the citizens can be set up by Parliament by exercising its powers under Article
12. On the side of the petitioners it is urged that the power of Parliament is much more limited. The petitioners say that the Constitution gave the Indian citizen freedoms which were to subsist for ever and the Constitution was drafted to free the nation from any future tyranny of the representatives of the people. It is this freedom from tyranny which, according to the petitioners, has been taken away by the impugned Article 31C which has been inserted by the Twenty-fifth Amendment. If Article 31C is valid, they say, hereafter Parliament and State Legislatures and not the Constitution, will determine how much freedom is good for the citizens.
13. These cases raise grave issues. But however grave the issues may be, the answer must depend on the interpretation of the words in Article 368, read in accordance with the principles of interpretation which are applied to the interpretation of a Constitution given by the people to themselves.
PART II-Interpretation of Golak Nath's Case.
16. Before proceeding with the main task, it is necessary to ask : what was decided in I.C. Golak Nath v. State of Punjab  2 S.C.R. 762 ? In order to properly appreciate that case, it is necessary first to have a look at Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar  S.C.R. 89 and Sajjan Singh v. State of Rajasthan  1 S.C.R. 933.
17. The Constitution (First Amendment) Act, 1951, which inserted inter alia Articles 31A and 31B in the Constitution was the subject matter of decision in Sankari Prasad's  S.C.R. 89 case. The main arguments relevant to the present case which were advanced in support of the petition before this Court were summarised by Patanjali Sastri, J. as he then was, as follows:
First, the power of amending the Constitution provided for under Article 368 was conferred not on Parliament but on the two Houses of Parliament as designated body and, therefore, the provisional Parliament was not competent to exercise that power under Article 379.
Fourthly, in any case Article 368 is a complete code in itself and does not provide for any amendment being made in the bill after it has been introduced in the House. The bill in the present case having been admittedly amended in several particulars during its passage through the House, the Amendment Act cannot be said to have been passed in conformity with the procedure prescribed in Article 368.
Fifthly, the Amendment Act, in so far as it purports to take away or abridge the rights conferred by Part III of the Constitution, falls within the prohibition of Article 13(2).
2214. This chain of decisions on the construction of Articles 31(2) introduced uncertainty in law and defeated to a large extent the clearly expressed intention of the amended Article 31(2) that a law providing for compensation shall not be called in question in any court on the ground that the compensation provided by it was not adequate. Shah J. in Shantilal Mangaldas  S.C.R. 341 at 362, 363 case had observed with reference to the decision in Bela Banerjee's case and Subodh Gopal's  S.C.R. 587 case that those decisions had raised more problems than they solved and that they placed serious obstacles in giving effect to the Directive Principles of State Policy incorporated inArticle 39. Subba Rao J. had also observed in Vajravelu's  1 S.C.R. 614, 626 case that if the intention of the Parliament was to enable the legislature to make a law without providing for compensation it would have used other expressions like, 'price', 'consideration', etc. This is what the Parliament has now done partially by substituting the word 'amount' for the word 'compensation' in the new Article 31(2). 2215. The provision in the newly added Clause 2B of Article 31 that nothing in Article 19(1)(f) shall affect any law referred to in Article 31(2) has been obviously incorporated because the Bank Nationalisation case overruled a long line of authorities which had consistently taken the view that Article 19(1)(f) and Article 31(2) were mutually exclusive so far as acquisition and requisition were concerned [See for example Gopalan's case, 1950 S.C.R. 88; Chiranjit Lal Choudhury's case, 1950 S.C.R. 869 at 919; Sitabati Devi's case, (1967) 2 S.C.R. 949; Shantilal Mangaldas's case, 1969 S.C.R. 341; and H.N. Rao's case, 1969(2) S.C.R. 392].
2216. Learned Counsel appearing for the petitioner mounted a severe attack on the Twenty-Fifth Amendment, particularly on the provisions of Article 31C. He contends that Article 31C subverts seven essential features of the Constitution, and destroys ten Fundamental Rights, which are vital for the survival of democracy, the rule of law and integrity and unity of the Republic. Seven of these Fundamental Rights, according to the counsel are unconnected with property rights. The argument continues that Article 31C destroys the supremacy of the Constitution by giving a blank charter to Parliament and to all the State Legislatures to defy and ignore the Constitution; it subordinates the Fundamenal Rights to Directive Principles of State Policy, destroying thereby one of the foundations of the Constitution; it virtually abrogate the "manner and form" of amendment laid down in Article 368by empowering the State Legislatures and the Parliament to take away important Fundamental Rights by an ordinary law passed by a simple majority; that it destroys by conclusiveness of the declaration the salient safeguard of judicial review and the right of enforcement of Fundamental Rights; and that, it enables the Legislatures, under the guise of giving effect to the Directive Principles, to take steps calculated to affect the position of religious, regional, linguistic, cultural and other minorities. Counsel complaints that the article abrogates not only the most cherished rights to personal liberty and freedom of speech but it also abrogates the right to equality before the law, which is the basic principle of Republicanism. By enacting Article 31C, the Parliament has resorted to the strange procedure of maintaining the Fundamental Rights unamended, but authorising the enactment of laws which are void as offending those rights, by validating them by a legal fiction that they shall not be deemed to be void. Today, Article 31 permits the enactment of laws in abrogation of Articles 14, 19 and 31, but what guarantee is there that tomorrow all the precious freedom will not be excepted from the range of laws passed under that article? Learned Counsel wound up his massive criticism against Article 31C by saying that the article is a monstrous outrage on the Constitution and its whole object and purpose is to legalise despotism. 2217. Having given a most anxious consideration to these arguments, I have come to the conclusion that though Article 31C is pregnant with possible mischief, it cannot, by the application of any of the well-recognised judicial tests be declared unConstitutional. 2218. For a proper understanding of the provisions of Article 31C, one must in the first place appreciate the full meaning and significance of Article 39(b) and (c) of the Constitution. Article 39 appears in Part IV of the Constitution, which lays down the Directive Principles of State Policy. The idea of Directive Principles was taken from Eire, which in turn had borrowed it from the Constitution of Republican Spain. These preceding examples, as said by Sir Ivor Jennings Some Characteristics of the Indian Constitution, 1953, 30-32, are significant because they came from countries whose peoples are predominantly Roman Catholic, "and the Roman Catholics are provided by their Church not only with a faith but also with a philosophy". On matters of faith and philosophy-social or political-there always is a wide divergence of views and in fact Republican Spain witnessed a war on the heels of the enactment of its Constitution and in Eire, de Valera was openly accused of smuggling into the Constitution the pet policies of his own party. Articles 38 and 39 of our Constitution are principally based on Article 45 of the Constitution of Eire, which derives its authority from the Papal Bulls. Article 39 provides by Clause (b) that the State shall, in particular, direct its policy towards securing-"that the ownership and control of the material resources of the community are so distributed as best to subserve the common good". Clause (c) of the article enjoins the State to direct its policy towards securing-"that the operation of the economic system does not result in the concentration of wealth and means of production to common detriment." Article 31C has been introduced by the 25th Amendment in order to achieve the purpose set out in Article 39(b) and (c).
2220. Turning first to the new Article 31(2), the substitution of the neutral expression "amount" for "compensation" still binds the Legislature to give to the owner a sum of money in cash or otherwise. The Legislature may either lay down principles for the determination of the amount or may itself fix the amount. There is, however, intrinsic evidence in Article 31(2) that it does not empower the State to confiscate or expropriate property. Not only does Article 31(2) not authorise the legislature to fix "such amount as it deems fit", "in accordance with such principles as it considers relevant", but it enjoins the legislature by express words either to fix an "amount" for being paid to the owner or to lay down "principles" for determining the amount to be paid to him. If it was desired to authorise the legislature to pass expropriatory laws under Article 31(2), nothing would have been easier for the Constituent Body than to provide that the State shall have the right to acquire property for a public purpose without payment of any kind or des c r i p tion. The obligation to pay an "amount" does not connote the power not to pay any amount at all. The alternative obligation to evolve principles for determining the amount also shows that there is no choice not to pay. The choice open to the Legislature is that the amount may directly be fixed by and under the law itself or alternatively, the law may fix principles in accordance with which the amount will be determined. The amount may, of course, be paid in cash or otherwise.
2231. The argument that Article 31C permits a blatant violation of the form and manner prescribed by Article 368 overlooks that the article took birth after a full and complete compliance with the form and manner spoken of in Article 368. Besides, implicit in the right to amend Article 368 is the power, by complying with the form and manner of Article 368, to authorise any other body to make the desired amendments to Constitutional provisions. The leading majority judgment in Golak Nath case and Hidayatullah J. thought of a somewhat similar expedient in suggesting that a Constituent Assembly could be convoked for abridging the Fundamental Rights. I do not see any distinction in principle between creating an authority like the Constituent Assembly with powers to amend the Constitution and authorising some other named authority or authorities to exercise the same power. This aspect of the matter does not, however, arise for further consideration, because Article 31C does not delegate the power to amend. 2232. The latter part of Article 31C presents to me no difficulty: "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." Clearly, this does not exclude the jurisdiction of the court to determine whether the law is for giving effect to the policy of the State towards securing the principles specified in Article 39(b) or (c). Laws passed under Article 31C, can, in my opinion, be upheld only, and only if, there is a direct and reasonable nexus between the law and the Directive Policy of the State expressed in Article 39(b) or (c). The law cannot be called in question on the ground that it does not give effect to such policy but I suppose no court can ever take upon itself the task of finding out whether a Jaw in fact gives effect to its true policy. If such a latitude were open to the Judges, laws of Prohibition and Gambling should have lost their place on the statute booklong since.
2230. I find it difficult to accept the argument, so strongly pressed upon us, that Article 31C delegates the amending power to State Legislatures and empowers them to make amendments to the Constitution without complying with the form and manner prescribed by Article 368. I am also unable to appreciate that the article empowers the Parliament likewise. The true nature and character of Article 31C is that it identifies a class of legislation and exempts it from the operation of Articles 14, 19 and 31. Articles 31(4) and (6) identified laws in reference to the period of their enactment. Articles 31(2) and 31A identified the legislative field with reference to the subject-matter of the law. Articles 15(4) and 33 identified laws with reference to the objective of the legislation. In this process no delegation of amending power is involved. Thus, these various provisions, like Article 31C, create a field exempt from the operation of some of the Fundamental Rights. The field of legislation is not created by Article 31C. The power to legislate exists apart from and indepedently of it. What the article achieves is to create an immunity against the operation of the specified Fundamental Rights in a pre-existing field of legislation. In principle, I see no distinction between Article 31C on the one hand and Articles 15(4), 31(4), 31(5)(b)(ii), and 31(6) on the other. I may also call attention to Article 31A introduced by the First Amendment Act, 1951 under which "Notwithstanding anything contained in Article 13", no law providing for matters mentioned in Clauses (a) to (e) "shall be deemed to be void on the ground that it is inconsistent or takes away or abridges any of the rights conferred by Articles 14, 19 or
31. The fact that the five clauses of Article 31A referred to the subject-matter of the legislation whereas Article 31C refers to laws in relation to their object does not, in my opinion, make any difference in principle.
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