In Kesavananda Bharati Supreme Court held by a majority that though by Article 368 Parliament is given the power to amend the Constitution that power cannot be exercised so as to damage the basic features of the Constitution or so as to destroy its basic structure.
Those judgments were delivered by Sikri, CJ., Shelat and Grover JJ., Hegde and Mukherjea JJ., Jaganmohan Reddy J. and Khanna J.
Chief Justice Sikri
Sikri, CJ., held that the fundamental importance of the freedom of the individual has to be preserved for all times to come and that it could not be amended out of existence According to the learned Chief Justice, fundamental rights conferred by Part III of the Constitution cannot be abrogated, though a reasonable abridgement of those rights could be effected in public interest.
There is a limitation on the power of amendment by necessary implication which was apparent from a reading of the preamble and therefore, according to the learned Chief Justice, the expression “amendment of this Constitution” in Article 368 means any addition or change in any of the provisions of the Constitution within the broad contours of the preamble, made in order to carry out the basic objectives of the Constitution.
Accordingly, every provision of the Constitution was open to amendment provided the basic foundation or structure of the Constitution was not damaged or destroyed.
Justice Shelat and Grover
Shelat and Grover, JJ. held that the preamble to the Constitution contains the clue to the fundamentals of the Constitution. According to the learned Judges, Parts III and IV of the Constitution which respectively embody the fundamental rights and the directive principles have to be balanced and harmonised. This balance and harmony between two integral parts of the Constitution forms a basic element of the Constitution which cannot be altered.
The word ‘amendment’ occurring in Article 368 must therefore be construed in such a manner as to reserve the power of the Parliament to amend the constitution, but not so as to result in damaging or destroying the structure and identity of the Constitution.
There was thus an implied limitation in the amending power which precluded Parliament from abrogating or changing the identity of the Constitution or any of its basic features.
Justice Hegde and Mukherjea
Hegde and Mukherjea, JJ. held that the Constitution of India which is essentially a social rather than a political document, is founded on a social philosophy and as such has two main features: basic and circumstantial.
The basic constituent remained constant, the circumstantial was subject to change. According to the learned Judges, the broad contours of the basic elements and the fundamental features of the Constitution are delineated in the preamble and the Parliament has no power to abrogate or emasculate those basic elements or fundamental features.
The building of a welfare State, the learned Judges said, is the ultimate goal of every Government but that does not mean that in order to build a welfare state, human freedoms have to suffer a total destruction. Applying these tests, the learned Judges invalidated Article 31C even in its unamended form.
Justice Jaganmohan Reddy
Jaganmohan Reddy, J., held that the word ‘amendment’ was used in the sense of permitting a change, in contra- distinction, to destruction, which the repeal or abrogation brings about. Therefore, the width of the power of amendment could not be enlarged by amending the amending power itself.
The learned Judge held that the essential elements of the basic structure of the Constitution are reflected in its preamble and that some of the important features of the Constitution are justice, freedom of expression and equality of status and opportunity. The word ‘amendment’ could not possibly embrace the right to abrogate the pivotal features and the fundamental freedoms and therefore, that part of the basic structure could not be damaged or destroyed.
According to the learned Judge, the provisions of Article 31C as they stood then, conferring power on Parliament and the State Legislatures to enact laws for giving effect to the principles specified in clauses (b) and (c) of Article 39, altogether abrogated the right given by Article 14 and were for that reason unconstitutional.
In conclusion, the learned Judge held that though the power of amendment was wide it did not comprehend the power to totally abrogate or emasculate or damage any of the fundamental rights or the essential elements on the basic structure of the Constitution or to destroy the identity of the Constitution. Subject to these limitations, Parliament had the right to amend any and every provision of the Constitution.
Justice Khanna
Khanna, J. broadly agreed with the aforesaid views of the six learned Judges and held that the word ‘amendment’ postulated that the Constitution must survive without loss of its identity, which meant that the basic structure or framework of the Constitution must survive any amendment of the Constitution.
According to the learned Judge although it was permissible to the Parliament in exercise of its amending power, to effect changes so as to meet the requirements of changing conditions it was not permissible to touch the foundation or to alter the basic institutional pattern.
Therefore, the words “amendment of the Constitution”, in spite of the width of their sweep and in spite of their amplitude, could not have the effect of empowering the Parliament to destroy or abrogate the basic structure or framework of the Constitution.
The summary of the various judgments in Kesavananda Bharati was signed by nine out of the thirteen Judges. Paragraph 2 of the summary reads to say that according to the majority, “Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution“.