CONSTITUTIONAL LAW

E-mail this Comments Print Article

The Ratio in the Kesavananda Bharati Case
by Joseph Minattur*

Cite as : (1974) 1 SCC (Jour) 73

This brief note attempts to indicate the rationes decidendi in Kesavananda Bharati v. State of Kerala.1 A careful reading of the opinions will show that there are more than one ratio in the case and that they are not tucked away in inaccessible corners.

It may not be out of place to indicate what is meant by ratio decidendi. The expression has been described as :

". . . any rule of law expressly or impliedly treated by the Judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him . . . ."2

J.L. Montrose has suggested that the expression is used in two senses : (i) The rule of law for which a case is binding authority, and (ii) The rule of law to be found in the actual opinion of the Judge, forming the basis of his decisions.3

It may be mentioned that Goodhart prefers the phrase "principle of a case" to ratio decidendi (literally, reason for deciding) which he considers something of a misnomer. As Cross states, "by common consent, the ratio decidendi is a proposition of law".4 It is an accepted fact that there can be more than one ratio in a case. It may not be necessary to go further into a discussion of ratio decidendi. We shall now address ourselves to finding out the rationes decidendi in the Kesavananda Bharati case.

If one goes through the opinions of Hegde, Ray, Jaganmohan Reddy, Palekar, Khanna, Mathew, Beg, Dwivedi, Mukherjea and Chandrachud, JJ., one cannot fail to realise that they base their decision on the proposition that the word "law" in Article 13(2) does not include amendments to the Constitution.

A proposition enunciated, by a majority consisting of Sikri, C.J., and Shelat, Hegde, Grover, Jaganmohan Reddy, Khanna, and Mukherjea, JJ., is that the power to amend does not include the power to alter the basic structure or framework of the Constitution to the extent of changing its identity. It is this proposition that will be applied in testing the validity of a constitutional amendment in the future.

Palekar, Beg, Dwivedi and Chandrachud, JJ., expressed the view that the power of amendment under Article 368 is plenary with no implied or inherent limitations and that it includes the power to add, alter or repeal the various Articles of the Constitution not excluding those relating to fundamental rights. Khanna, J., while agreeing with this view has stated that the power, however, does not extend to altering the basic structure or framework of the Constitution. Ray and Mathew, JJ., also subscribe to the view of plenary powers, but they think that there cannot be a total abrogation of the Constitution which will result in a constitutional void. Any amendment, according to them, should leave behind a mechanism of Government for the making, interpretation and implementation of laws.

II

As early as 1951 the thesis that there is a distinction between constitutional law and ordinary law was accepted. There is a hierarchy of legal norms. The basic norm or Grundnorm as Kelson calls it, is the Constitution which acquires validity from the fact of social acceptance or recognition. Other legal rules assume validity because of their conformity with the Grundnorm. Patanjali Sastri, J., in Sankari Prasad case,5 did not elaborate the point. But he emphasised the distinction when he observed :

"(T)here is a clear demarcation between ordinary law which is made in exercise of legislative power, and constitutional law which is made in exercise of constituent power."6

The decision in the case was based on this distinction. And the significance of the distinction, is that while an ordinary law depends for its validity on its conformity with their Constitution, constitutional law is independent of any such conformity. The same distinction enunciated and followed in Sajjan Singh case7 in 1964. The same proposition was reverted to by the dissenting Judges in the Golak Nath decision in 1967. After a passage of half a dozen years, the minority view of five Judges came to be accepted by a majority of ten Judges as against three in the Kesavananda Bharati case. This is not an uncommon phenomenon in the whirligig of judicial opinions. In his well-known book The Concept of Law, published in 1961, Hart wrote :

"[W]here there is a legislature subject to no constitutional limitations and competent by its enactment to deprive all other rules of law emanating from other sources of their status as law, it is part of the rule of recognition in such a system that enactment by that legislature is the supreme criterion of validity. This is, according to constitutional theory, the position in the United Kingdom. But even systems like that of the United States in which there is no such legally unlimited legislature may perfectly well contain an ultimate rule of recognition which provides a set of criteria of validity, one of which is supreme. This will be so, where the legislative competence of the ordinary legislature is limited by a Constitution which contains no amending power, or places some clauses outside the scope of that power. Here there is no legally unlimited legislature, even in the widest interpretation of 'legislature' ; but the system of course contains an ultimate rule of recognition and, in the clauses of its Constitution, a supreme criterion of validity."8 (emphasis added.)

It was by the application of this "supreme criterion of validity" that a distinction was drawn between constitutional law and ordinary law and the Golak Nath decision regarding the fundamental rights was declared erroneous.

III

An important proposition enunciated by a majority of Judges in the Kesavananda Bharati case is that the power to amend does not include the power to alter the basic structure or framework of the Constitution to the extent of changing its identity. That this ratio is common in the opinions of seven Judges may be substantiated by the pure mechanical process of presenting excerpts from the opinions.

Sikri, C.J., in his conclusions has pointed out :

"(c) The expression 'amendment of this Constitution' does not enable Parliament . . . to completely change the fundamental features of the Constitution so as to destroy its identity."9

Shelat and Grover, JJ., in their combined opinion state :

". . . the power in Article 368 is wide enough to permit amendment of each and every Article of the Constitution by way of addition, variation or repeal so long as its basic elements are not abrogated or denuded of their identity."10

They further state in their conclusions :

"[T]hough the power to amend cannot be narrowly construed and extends to all the Articles it is not unlimited so as to include the power to abrogate or change the identity of the Constitution or its basic features ;"11

In a joint opinion handed down by Hegde and Mukherjea, JJ., they lay down the same principle. They observe :

"If one or more of the basic features of the Constitution are taken away to that extent the Constitution is abrogated or repealed. If all the basic features of the Constitution are repealed and some other provisions inconsistent with those features are incorporated, it cannot still remain the Constitution referred to in Article 368. The personality of the Constitution must remain unchanged."12

One of the conclusions set out by Jaganmohan Reddy, J., emphasises the need to retain the identity of the Constitution. He says :

"Parliament could amend Article 368 and Article 13 and also all the fundamental rights and though the power of amendment is wide, it is not wide enough to totally abrogate or emasculate or damage any of the fundamental rights or the essential elements in the basic structure of the Constitution or of destroying the identity of the Constitution."13

Khanna, J., lays down the same principle, though he employs a slightly different phraseology. He observed in the course of his opinion :

"[T]he word 'amendment' postulates that the old Constitution survives without loss of its identity despite the change and continues even though it has been subjected to alterations. As a result of the amendment, the old Constitution cannot be destroyed or done away with ; it is retained though in the amended form. What then is meant by the retention of the old Constitution? It means the retention of the basic structure or framework of the old Constitution . . . it is not permissible to touch the foundation or to alter the basic institutional pattern. The words 'amendment of the Constitution' with all their wide sweep and amplitude cannot have the effect of destroying or abrogating the basic structure or framework of the Constitution."14

Quoting Jawaharlal Nehru from his speech in support of the First Amendment, Khanna, J., comments that "what Pt. Nehru contemplated by amendment was the varying of the Constitution 'here and there' and not the elimination of its basic structure, for that would necessarily result in the Constitution losing its identity".15 In his conclusions, the learned Justice states :

"The power of amendment under Article 368 does not include the power to abrogate the Constitution nor does it include the power to alter the basic structure or framework of the Constitution. Subject to the retention of the basic structure or framework of the Constitution, the power of amendment is plenary and includes within itself the power to amend the various Articles of the Constitution, including those relating to fundamental rights as well as those which may be said to relate to essential features. No part of a fundamental right can claim immunity from amendatory process by being described as the essence or core of that right. The power of amendment would also include within itself the power to add, alter or repeal the various Articles."16

It may be observed that the word "structure" connotes among other things, the whole of the essential parts of a thing.17 If the structure of a thing has to be retained, it is not easy to understand how one can get rid of the essential features of it. Khanna, J., however, adds a qualification to "structure". He invariably employs the expression "basic structure". From the illustrations he gives of what constitutes the basic structure of the Constitution he does not seem to make much of a distinction between what he calls basic structure and what the other learned Justices have referred to as essential features. In fact, he observes in the course of his opinion that so far as the expression "essential features" means the basic structure or framework of the Constitution, the power to amend does not include within itself the power to change the basic structure or framework of the Constitution.18

We may, in passing, remind ourselves of what Lord Greene said about the real ratio decidendi in a case. In Gold v. Essex County Council19 he stated :

"In a case where two members of the Court base their judgments, the one on a narrow ground confined to the necessities of the decision, and the other on wide propositions which go far beyond the necessities, and the third member of the Court expresses his concurrence in the reasoning of both, I think it right to treat the narrow ground as the real ratio decidendi."20

IV

We have already noticed Khanna, J.'s views on what is meant by amendment of the Constitution. It is in the restricted sense of making changes "here and there", as Pandit Nehru expressed the idea, that the power of amendment is considered plenary and can reach each and every Article of the Constitution, provided its basic structure is retained intact.

Ray, J. (as he then was), holds the view that the power of amendment is unlimited so long as the result is an amended Constitution, that is to say, an organic instrument which provides for the making, interpretation and implementation of law.21

Mathew, J., observes in the course of his opinion that "a simple repeal or abrogation of the Constitution without substituting anything in the place of the repealed Constitution would be beyond the scope of the amending power, for, if a Constitution were simply repealed, it would not stand amended".22 He has further stated that the Constitution cannot be repealed or abrogated in the exercise of the power of amendment without substituting a mechanism by which the State is constituted and organised.23

Ray, J.'s concept of an "organic instrument"24 and Mathew, J.'s idea of a "mechanism" may not approximate to the basic structure or essential features contemplated by a majority of Judges but it is interesting to note that according to nine of the Judges some structure has to be retained after amendment, by whatever name it is called.

Palekar, J., states that "having regard to the importance of the amending clause in our Constitution, an amendment contemplates changes in the provisions of the Constitution which are capable of being effected by adding, altering or repealing them, as found necessary, from time to time.25 Thus, so far as the working of Article 368 itself is concerned there is nothing in it which limits the power of amendment expressly or by necessary implication.

According to Beg, J., the power of amendment may not include the power of completely abrogating the Constitution at one stroke, but it appears wide enough to erode the Constitution completely step by step so as to replace it by another.26

In Dwivedi, J.'s eyes, the amending power in Article 368 is unlimited and unconfined as the power of the Constituent Assembly. It includes the power of repealing or abrogating each and every provision of the Constitution. "It may be that Parliament may not be able to annihilate the entire Constitution by one stroke of the pen.27

Chandrachud, J., in his conclusions has stated that :

"There are no inherent limitations on the amending power in the sense that the Amending Body lacks the power to make amendment so as to damage or destroy the essential features or the fundamental principles of the Constitution."28

When an amendment is contemplated, if there should be a clear avoidance of a constitutional vacuum and if what is left after the amendment should be an organic instrument with power to make, interpret and implement laws, the existence of some framework has to be necessarily envisaged. If the Constitution is abrogated and the country is to be governed as nearly as possible under, say, the abrogated Constitution, on the strength of a martial law order, the three branches of Government are not obliterated but it is doubtful whether this would be considered a permissible amendment of the Constitution. When Ray and Mathew, JJ., contemplated the avoidance of a constitutional void, it is not improbable that they had in mind a constitutional framework which may not be entirely unrecognizable from the present organizational set-up. It is very unlikely that they contemplated, say, for instance, a monarchical form of government. In Beg, J.'s scheme of things alone a total abrogation is permissible provided it is carried out "step by step" ; perhaps at two steps excluding the assent of the President ; one step repealing all the Articles which may be repealed by Parliament alone—Lok Sabha and Rajya Sabha may meet at the same time for the purpose29—and the next step repealing all the Articles for which ratification of the States is required.

Anyway, in the view of the majority, the power of amendment is plenary as long as what is left behind after amendment is the basic structure or framework of the Constitution.

V

In the Golak Nath decision, the Court addressed itself to the question of abrogation or abridgment of the fundamental rights through a process of amendment. In the Kesavananda Bharati case, larger issues were involved. The majority decision has held that the basic structure of the Constitution cannot be destroyed by means of amendment. What constitutes the basic structure is not clearly made out. Khanna, J., by way of illustration, lists the following democratic and republican form of Government, bicameral legislature at the centre, and secular character of the State.30

These items he lists begin with the words "as for instance", so that they are not exhaustive. Whether what he has not listed along with what he has will correspond to Sikri, C.J.'s similar list of the basic or fundamental features is anybody's guess. But it appears from the general trend of thought that there is bound to be some approximation. Sikri, C.J., sets down the following as forming what he calls the "basic structure" or "fundamental features" of the Constitution.31

"(1) Supremacy of the Constitution ;

(2) Republican and democratic form of Government ;

(3) Secular character of the Constitution ;

(4) Separation of powers between the legislature, the executive and the judiciary ;

(5) Federal character of the Constitution."

The concept of democratic government would necessitate the retention of a large number of Articles in the Constitution. Most of the fundamental rights will have to be retained, albeit in an attenuated form, though it would tax the ingenuity of man a little too hard to discover possible attenuation in a few instances. Quite a good number of the directive principles may be considered to be inviolable in view of the Preamble which sets out the aims and objects of the Constitution. Articles relating to the Union of States, elections and judicial review cannot be repealed. It may therefore be said that the Kesavananda decision has forged more fetters on the powers of Parliament to amend the Constitution.

In spite of its lengthiness, it is known that many things are left unsaid in the Indian Constitution. These things are to be supplied either by conventions which we build up and by judicial decisions. It may be of interest to note that much of what has been done by the Kesavananda decision has been set down in the basic law of the Federal Republic of Germany.

Article 79(3) of the Basic Law lays down :

"An amendment of this Basic Law affecting the division of the Federation into Laender, the participation in principle of the Laender in legislation or the basic principles laid down in Articles 1 and 20 shall be inadmissible."32

Sometime in the future when the basic structure of the Constitution will have to be spelt out, it may be that the Basic Law of the Federal Republic will provide us with some guidelines.

* Ph. D. (London) LL.D. (Nimeguen), D.C.L. (Strasbourg), of Lincoln's Inn, Barrister-at-Law. Return to Text

1. (1973) 4 SCC 225. Return to Text
2. R. Cross. Precedent in English Law. (2nd edn., 1968) p. 77. Return to Text
3. Quoted in Cross, supra note 1. at p. 77. Cross points out that there is generally no distinction between these two senses of the expression until a decision has been interpreted in a subsequent case (ibid.). Return to Text
4. Rupert Corss, supra note 1, at p. 77. Return to Text
5. Sankari Prasad v. Union of India, AIR 1951 SC 458. Return to Text
6. Id., at p. 463. Return to Text
7. Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845. Return to Text
8. H.L.A. Hart, The Concept of Law 103 (1961). Return to Text
9. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 at 405 (para 475). Return to Text
10. Id., at p. 454 (para 583). Return to Text
11. Id., at p. 462 (para 608). Return to Text
12. Id., at p. 481 (para 651). Return to Text
13. Id., at p. 666 (para 1212). Return to Text
14. Id., at p. 767 (para 1426). Return to Text
15. Ibid. Pandit Nehru said "A constitution which is responsive to the people's will, which is responsive to their ideas, in that it can be varied here and there, they will respect all the more, and they will not fight against, when we want to change it. Otherwise if you make them feel that it is unchangeable and cannot be touched, the only thing to be done by those who wish to change it is to try to break it. That is a dangerous thing and a bad thing. Therefore it is a desirable and a good thing for people to realise that this very fine Constitution that we have fashioned after years of labour is good so far as it goes, but as society changes, as conditions change we amend it in the proper way" (quoted by Khanna, J., id. at p. 768 (para 1428). Return to Text
16. Id. at p. 824 (para 1537). Return to Text
17. Oxford English Dictionary. Return to Text
18. Id. pp. 768, 769 & 783 (paras 1430, 1433 & 1463). Return to Text
19. 1942 1 K.B. 293. Return to Text
20. Id., at p. 298. Return to Text
21. (1973) 4 SCC 225 at p. 557 (p. 917-A). Return to Text
22. Id., at p. 832 (para 1567). Return to Text
23. Id., at p. 897 (para 1784). Return to Text
24. Ray. J. uses the phrase "organic mechanism" also see Id. at p. 594 (para 1064). Return to Text
25. Id., at p. 688 (para 1257). Return to Text
26. Id., at p. 913 (para 1836). Return to Text
27. Id., at p. 933 (para 1899). Return to Text
28. Id., at p. 1005 (para 2142). Return to Text
29. We have no constitutional provision as in Italy where the Constitution lays down that amendments to the Constitution and other constitutional laws are passed by the Chamber of Deputies and the Senate in two successive sessions at an interval of not less than three months, (Article 138). Return to Text
30. Id., at p. 767 (para 1426). He mentions Rajya Sabha and Lok Sabha. This bicameralism probably presupposes a federal Constitution. At another place he mentions judicial review as forming part of the basic structure. Return to Text
31. Id., at p. 366 (para 292). Return to Text
32. Article 1 reads :
    (1) The dignity of man is invoilable. To respect and protect it shall be the duty of all State authority.
    (2) The German people therefore acknowledges inviolable and inatrenable human rights as the basis of every community, of peace, and of justice in the world.
    (3) The following basic rights shall bind the legislature, the executive and the judiciary as directly enforceable law.
    Articles 2 to 19 contain the Federal Republic's Bill of Rights.
    Article 19(2) provides that "In no case may a basic right be infringed upon in its essential content."
    Article 20 : (1) The Federal Republic of Germany is a democratic and social federal State.
    (2) All State authority emanates from the people. It shall be exercised by the people by means of elections and voting and by separate legislative, executive and judicial organs.
    (3) Legislation shall be subject to the constitutional order ; the executive and the judiciary shall be bound by the law.
    Along with these provisions, there is also provision for judicial review in the Federal Republic. Return to Text