Keshavanandha's Case, Uncontrolled Power of The Parliament Has Been Controlled and

Introduction
Constitution of India did not emerge from vacuum. It is continuous process of

evolution, reformation and recreating the existing system of governance by eminent
scholars, experts and judges etc. No Constitution can remain static. It must respond to
new challenges and take account of unanticipated and unforeseen events which were
not within the contemplation of the framers of the Constitution. Ours is the living
Constitution which requires an amendment from time to time according to the societal
changes. Parliament in its constituent power can amend by way of addition, alteration,
variation or repeal any provisions of the Constitution. On its plain terms Art.368 is
plenary and is not subject to any limitations or exceptions. The Constituent Assembly
debates indicate that the founding fathers did not envisage any limitation on the
amending power.
Bringing alteration to the Constitution provisions by the Parliament was very easy
process before Keshavananda Bharathi’s Case,1 because there was no implied or
express limitation on its amending power exercised under the Constitution. 2 But in the
keshavanandha’s case, uncontrolled power of the Parliament has been controlled and
curtailed by the Doctrine of Basic Structure. We did not have this doctrine at the
commencement of the Constitution of India. This doctrine conceived in the case of
Sajjan singh3 and took real birth in the case of Keshavanandha Bharath’s Case4. It is
the product of long struggle between the Judiciary and Parliament. Through this basic
structure principle, the Supreme Court changed the course of Constitutional history by
denying the assertion of supremacy of Parliament in matter of amending the
Constitution at solely on the
1
Keshavanand Bharti v. State of Kerala AIR 1973 SC1461: (1973) 4 SCC.225.
2
Article 368 of the Constitution of India
3
Sajjan Singh v. State of Rajasthan AIR, 1965 SC 845
4
Supra 1
At this point, present chapter focuses to examine the scope and importance of this
doctrine under the Ninth Schedule of the Constitution in Pre and Post Keshavanand’s
Case and to discuss the justiciabilty of exclusion of judicial review (which is also a
basic structure) from the list of Ninth Schedule. This chapter is very significant in the
present study as it deals with the various aspects that are held to be the basic or
essential features or structure of the Constitution by the Apex Court in its judgements,
which cannot be taken away or damaged by the constitutional amendments by the
Parliament. As the Constitution is the Supreme Law of the land no Act or amendment
could go contrary to it.
Development of Basic Structure Theory in Pre Keshavananda’s case
After independence, the Government of India started to implement agrarian reforms

scheme, but unfortunately, this action of the government was attacked and challenged
in many High Courts, because the initiation of agrarian reforms were directly violating
the Fundamental Right such as Arts.14, 19 and 31, especially right to property which
was a fundamental right in the original constitution. Bihar Land Reforms Act, 1950 was
the first enactment on agrarian reform which was challenged in the Patna High Court.7
To nullify the judgment of High Court and to
5
Article on Basic Structure of the Indian Constitution : Doctrine of Constitutionally Controlled Governance (
From Keshavanand Bharti to I.R.Cohelho) by Virendra Kumar published in Journal of India Law Institute
2007, Vol-49, Jan –March, p.365
6
Art.31-B read with Ninth Schedule Inserted in the Constitution First Amendment Act, 1951
7
Kameshwar Singh v State of Bihar, AIR, 1951, Pat.91, SB.
immunize this law8 from Fundamental Rights, Art.31-B9and the Ninth Schedule10 were
introduced in the Constitution by the Constitution First Amendment Act 1951.
The question whether Fundamental Rights can be amended under Art.368 came for
consideration in the Supreme Court in Shankari Prasad case.11In this case validity of
Constitution (First Amendment) Act, 1951 which inserted inter alia, Arts.31-A and 31-B
of the Constitution were also challenged. The amendment was challenged on the ground
that it abridges the rights conferred under Art.13 12 of Part III and hence was void. The
Supreme Court however rejected the above argument and brought out the distinction
between legislative power and constituent power and held that “law” in Art.13 did not
include an amendment of the Constitution made in the exercise of constituent power and

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Introduction

Constitution of India did not emerge from vacuum. It is continuous process of

Development of Basic Structure Theory in Pre Keshavananda’s case

After independence, the Government of India started to implement agrarian reforms

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