Kesavananda Bharati (1973): The Basic Structure Doctrine and Limits on Parliament's Amending Power

On 24 April 1973 a 13-judge bench of the Supreme Court of India delivered a judgement running past 700 pages in Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461, (1973) 4 SCC 225, and by the narrowest possible margin of 7:6 answered the single most important question in Indian constitutional law: whether Parliament's power to amend the Constitution under Article 368 has any limits at all. The answer, the basic structure doctrine, has governed the relationship between Parliament and the Constitution for more than five decades and remains binding law in 2026. This explainer sets out what the 13 judges decided, why they split 7 against 6, and what the ruling means in practice. It is an explainer, not legal advice.

The Statutory Question

Article 368 of the Constitution of India gives Parliament the power to amend "this Constitution" by way of addition, variation or repeal, subject to special majorities and, for certain provisions, ratification by the States. The question in 1973 was deceptively simple: does the word "amend" in Article 368 allow Parliament to change any provision without exception, or does it stop short of provisions that give the Constitution its identity? Everything in Kesavananda Bharati turned on that one verb.

The dispute did not begin as high theory. Swami Kesavananda Bharati, the head of the Edneer Mutt, a Hindu religious institution in Kasaragod district of Kerala, filed a petition in 1970 challenging the Kerala Land Reforms Act, 1963, as amended in 1969 and 1971, which restricted the mutt's ability to manage property it held. He invoked Article 26, the fundamental right to manage religious property, and Article 31, the then-existing fundamental right to property. As the case grew, it became the vehicle to test three recent constitutional amendments passed by Parliament to overcome earlier judicial defeats.

Those three amendments are the statutory heart of the case. The Constitution (Twenty-fourth Amendment) Act, 1971 rewrote Article 368 and Article 13 to declare in express terms that Parliament could amend any provision, including fundamental rights. It was Parliament's direct answer to Golak Nath v. State of Punjab, AIR 1967 SC 1643, in which an 11-judge bench had held by 6:5 in 1967 that fundamental rights could not be amended at all. The following table sets out the three measures the Court examined in 1973.

The stakes were plain. If "amend" in Article 368 was unlimited, Parliament, controlling a two-thirds majority, could rewrite or delete any guarantee, up to and including the democratic and federal character of the Republic. If "amend" carried an inbuilt limit, the elected legislature was subordinate to an unwritten core it could not touch. The 13-judge bench, presided over by Chief Justice S.M. Sikri, heard argument over 68 days between 31 October 1972 and 23 March 1973, the second-longest hearing in the Court's history.

What the Court Held

By a majority of 7 judges to 6, the Supreme Court held that Parliament can amend any part of the Constitution under Article 368, including fundamental rights, but cannot use that power to alter or destroy the basic structure of the Constitution. This is the operative holding of Kesavananda Bharati and the origin of the basic structure doctrine.

The consequences flowed in three directions. First, the Court upheld the Constitution (Twenty-fourth Amendment) Act, 1971, and overruled Golak Nath (1967) to the extent that Golak Nath had held fundamental rights to be beyond the amending power. Parliament could, after 24 April 1973, amend fundamental rights. Second, the Court upheld the first part of Article 31C, inserted by the 25th Amendment, but struck down its second part, which had provided that no law containing a declaration that it gave effect to the Directive Principles in Article 39(b) and (c) could be questioned in any court. That ouster of judicial review was held to breach the basic structure. Third, the 29th Amendment placing the Kerala Acts in the Ninth Schedule was upheld, but subject to the overriding basic structure limit.

The division of opinion was famously fine. Nine of the 13 judges signed a short summary titled the "View by the Majority", which recorded the central propositions the Court had settled. The 7:6 split meant that the doctrine survived by a single judicial vote, and Chief Justice Sikri retired on 25 April 1973, the day after the judgement was pronounced.

Reasoning

'Amend' does not mean the power to abrogate

The majority's starting point was linguistic and structural. It read the word "amend" in Article 368 as a power to change and improve an existing thing while keeping its identity, not a power to repeal the Constitution and enact a different one under the guise of amendment. On this reading, an amendment that left no recognisable Constitution standing would not be an "amendment" within Article 368 at all, but an exercise of a constituent power the Article did not confer. The Court accepted that fundamental rights in Part III could be amended, correcting Golak Nath (1967), yet insisted that the amending clause could not consume the document that created it.

The implied limitation: a basic structure

From that reading the majority derived an implied limitation. Because the Preamble and the scheme of the Constitution disclose certain foundational features, those features form a basic structure that the Article 368 power cannot reach. The 1973 judgement deliberately declined to give an exhaustive catalogue, offering instead illustrations such as the supremacy of the Constitution, the republican and democratic form of government, the secular character of the State, the separation of powers and the federal structure. Later benches filled in the outline, as the table below shows.

The genius, and the criticism, of the doctrine lie in the same place: the list is open-ended, identified case by case, rather than fixed in the text. That flexibility is why the doctrine has been applied to strike down constitutional amendments as recently as the National Judicial Appointments Commission (NJAC) case in 2015, which invalidated the 99th Amendment of 2014.

Article 31C and the survival of judicial review

The third strand of reasoning concerned Article 31C. The 25th Amendment had tried to immunise a whole class of laws from challenge by attaching a self-certifying declaration; if a legislature declared that a law advanced the Directive Principles in Article 39(b) and (c), no court could examine whether that was true. The majority held that this removal of judicial scrutiny struck at judicial review, itself a basic feature, and it severed and struck down that second limb of Article 31C while preserving the first. The reasoning shows the doctrine at work: an amendment is not judged by its label but by whether it damages a foundational feature, and the power to test that question must stay with the courts.

The durability of this three-part reasoning was tested almost immediately. Within two years, the Court applied the doctrine in Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, to strike down clause (4) of the 39th Amendment, which had tried to place the Prime Minister's election beyond judicial scrutiny. In 1980 the bench in Minerva Mills, AIR 1980 SC 1789, struck down Sections 4 and 55 of the 42nd Amendment of 1976, holding that a limited amending power and judicial review were themselves part of the basic structure. Each of these decisions traces its authority directly to the 7:6 holding of 24 April 1973, which is why Kesavananda Bharati is described as the case that saved Indian democracy from a formally unlimited amending power.

Practical Takeaways

Kesavananda Bharati is a constitutional decision, but its long shadow reaches ordinary financial and property matters. Five practical points follow from the 1973 judgement.

• For every citizen: No parliamentary majority, however large, can lawfully abolish judicial review, free elections or the federal structure by amendment. That guarantee has held since 24 April 1973 and was last used to strike down a constitutional amendment in 2015.
• For property owners: The case grew out of a property dispute, yet the right to property did not survive as a fundamental right. The Constitution (Forty-fourth Amendment) Act, 1978 deleted Article 19(1)(f) and Article 31 and relocated property to Article 300A as a bare legal right, five years after Kesavananda. Property claims are now argued on statutory and administrative-law footing.
• For borrowers and lenders: Because property is a legal, not fundamental, right, laws governing security enforcement and land ceilings are tested for statutory compliance rather than as fundamental-rights violations. The doctrine keeps judicial review available, so an aggrieved party retains a route to the courts even where a statute purports to be final.
• For investors and NRIs: Cross-border property decisions turn on statute and regulation rather than constitutional guarantees. Non-residents assessing Indian real estate should model the tax on a sale using an NRI tax calculator and check how much of the proceeds can be sent abroad with a repatriation calculator, because the right at stake is the legal right to property under Article 300A, not a Part III fundamental right.
• For students of the law: The doctrine is applied, not merely admired. It is the reason a constitutional amendment can be challenged in court at all, and its logic runs through later landmarks such as the fair-procedure reading of Article 21 in 1978.

The primary sources are freely available: the full judgement sits on Indian Kanoon at indiankanoon.org/doc/257876/, and the text of Article 368 is published by the Government of India at indiacode.nic.in.

FAQ

What is the basic structure doctrine in simple terms?

It is the principle, laid down by a 13-judge Supreme Court bench on 24 April 1973 in Kesavananda Bharati, AIR 1973 SC 1461, that Parliament can amend any part of the Constitution under Article 368 but cannot alter or destroy its essential framework. Features such as the supremacy of the Constitution, the rule of law, judicial review and free elections lie beyond the reach of the amending power, however large the parliamentary majority behind an amendment.

Did Kesavananda Bharati strike down the 24th Amendment?

No. The 7:6 majority in 1973 upheld the Constitution (Twenty-fourth Amendment) Act, 1971, confirming that Parliament can amend fundamental rights and overruling Golak Nath (1967) on that point. What the Court added was a limit: the amending power under Article 368 could not be used to damage the Constitution's basic structure. It did strike down the second part of Article 31C, inserted by the 25th Amendment, for ousting judicial review.

Why did the case need 13 judges?

The 13-judge bench was the largest in the Supreme Court's history because it had to reconsider Golak Nath v. State of Punjab (1967), an 11-judge decision. Under the Court's convention a bench must be larger than the one whose ruling it re-examines, so at least 13 judges were required. The hearing ran for 68 days between 31 October 1972 and 23 March 1973, and the judgement, delivered on 24 April 1973, exceeded 700 pages.

What counts as part of the basic structure?

The 1973 judgement gave illustrations rather than a closed list. Later benches added to it: secularism was affirmed in S.R. Bommai (1994), free and fair elections in Indira Nehru Gandhi v. Raj Narain (1975), and judicial review was reinforced in Minerva Mills (1980) and I.R. Coelho (2007). Federalism, separation of powers, the rule of law and the supremacy of the Constitution are consistently treated as basic features that Article 368 cannot destroy.

How does the doctrine affect the right to property today?

The right to property, the very interest Kesavananda Bharati litigated, was demoted from a fundamental right to a legal right under Article 300A by the Constitution (Forty-fourth Amendment) Act, 1978, five years after the judgement. Property disputes are now decided on statutory and administrative-law grounds. The basic structure doctrine still matters here because it preserves judicial review, so no property statute can lawfully shut the courts out entirely.

Is the basic structure doctrine still good law in 2026?

Yes. Since 24 April 1973 the doctrine has been applied repeatedly, including to strike down parts of the 42nd Amendment in Minerva Mills (1980) and the 99th Amendment creating the NJAC in 2015. No larger bench has overruled Kesavananda Bharati, so its 7:6 holding that Article 368 cannot be used to destroy the Constitution's basic structure remains binding on every court in India today.

Where can I read the judgement myself?

The full text of Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461, (1973) 4 SCC 225, is available on Indian Kanoon at indiankanoon.org/doc/257876/. The current text of Article 368 and the amending procedure is published by the Government of India on the India Code portal at indiacode.nic.in. Reading the "View by the Majority" summary, signed by nine of the 13 judges, is the quickest way to grasp the settled propositions.