Case Analysis:

Maneka Gandhi v. Union of

India

Submitted to:

Ms. Kuhu Tiwari

(Faculty of Legal Method)

Submitted by:

Shubham Singh
BA.LLB. (Hons.)
Semester I, Roll No.
Section B

Submitted on: 31st August, 2017

Hidayatullah National Law University

Uparwara Post, Abhanpur, New Raipur - 493661 (C.G.)

1
 Declaration
I hereby declare that the project work titled “Case Analysis: Maneka Gandhi v. Union of
India’’ is my own work and represents my own ideas and where others’ ideas or words have
been included, I have adequately cited and referenced the original sources. I also declare that
I have adhered to all principles of academic honesty and integrity and have not
misrepresented or fabricated or falsified any idea/data/fact/source in my submission. It is a
record of bonafide project work carried out by me under the guidance of Ms. Kuhu Tiwari,
faculty member, H.N.L.U., Raipur. I further declare that the project has not been submitted,
either in part or in full, for the award of any other degree or diploma in any other institute or
university.

Shubham Singh

Semester I, Section – B

Roll No.

2
 Acknowledgement

I feel highly elated to work on the case - “Maneka Gandhi v. Union of India”.

No creation in this world is a sole effort, nor is this work of mine. The practical realisation of
this project has obligated the assistance of many persons. First of all I would thank my
faculty teacher Ms. Kuhu Tiwari for her invaluable suggestions and guidance. It would have
not been possible for me to frame this project of mine without her support.

I would like to thank my family and friends, without their support and encouragement, this
project would not have been a reality.

I take this opportunity to also thank the University and the Vice Chancellor for providing
extensive database resources in the Library and through Internet. Some typing errors might
have crept in, which are deeply regretted. I would be grateful to receive comments and
suggestions to further improve this project report.

Shubham Singh

Semester 1, Section – B

Roll No.

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 Table of Contents

Declaration .............................................................................................................................................. 2
Acknowledgement .................................................................................................................................. 3
Table of Contents .................................................................................................................................... 4
Introduction ............................................................................................................................................ 5
Objectives of the study ........................................................................................................................... 7
Research methodology ........................................................................................................................... 8
Reference details .................................................................................................................................... 9
Facts of the case...................................................................................................................................... 9
Facts in issue ......................................................................................................................................... 11
Issues of the case .................................................................................................................................. 12
Judgement............................................................................................................................................. 13
Ratio of the Case ................................................................................................................................... 16
Impact of this Case ................................................................................................................................ 17
Conclusion ............................................................................................................................................. 21
References ............................................................................................................................................ 22

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 Introduction
Mrs. Maneka Gandhi
Vs.
Union of India (UOI) and Anr.
1978 AIR 597, 1978 SCR (2) 621

The decision of Maneka Gandhi v. Union of India1 was, according to Adam M. Smith, an
‘inflection point’2 for courts of India in interpreting the fundamental rights. The Supreme
Court of India gave a broader meaning to article 213 which led to further interpretation and
emancipation of constitution of India that was thought to be a restricted field of study by
many.

The circumstances that set the stage for the Maneka Gandhi judgement in 1978 are important,
the national emergency which was declared by President Fakhruddin Ali Ahmed in 1975 and
was characterised by strict censorship and detention of political prisoners, had recently
ended4. In 1976; in the case of ADM Jabalpur v. Shivkant Shukla5, the Supreme Court had
unhappily held that a detenue could not file a habeas corpus petition6 challenging the legality
of his detention during an emergency. A large segment of citizens had lost faith in the
judiciary. India’s democratic structure had faced an onslaught, as the Indra Gandhi-led
Congress government (ousted in 1977) had passed a deluge of revolutionary constitutional
amendments which severly impinged on a person’s fundamental rights.

The Supreme Court departed from the straitjacketed interpretation of fundamental rights in
A.K. Gopalan v State of Madras7 and held that the fundamental rights form an integrated
scheme under the Constitution. The court stated: “Articles dealing with different fundamental
rights contained in Part III of the Constitution do not represent entirely separate streams of
rights which do not mingle at many points. They are all parts of an integrated scheme in the
Constitution. Their waters must mix to constitute that grand flow of unimpeded and impartial
justice. Isolation of various aspects of human freedom, for purposes of their protection, is
neither realistic nor beneficial.”8

With its decision in Maneka Gandhi, the Supreme Court attempted to restore the citizens’
faith in the judiciary. It went beyond its immediate mandate to make some striking assertions,
which went on to become bedrock of the protection of human rights of the aam admi9 in the

1
Mrs. Maneka Gandhi V.Union of India (UOI) and Anr.1978 AIR 597, 1978 SCR (2) 621
2
Adam M. Smith, ‘Making itself at Home-Understanding Foreign Law in domestic jurisprudence: The Indian
case’, Berkley Journal of International Law, vol. 24 (2006): p. 218.
3
Right to Life and Personal Liberty.
4
The Emergency lasted twenty-one months-from 25 June1975 to 21 March 1977.
5
AIR 1976 SC 1207.
6
A petition filed under Article 32 of the Constitution seeking the release of a person from the unlawful custody
of the state.
7
1950 AIR 27, 1950 SCR 88
8
https://www.telegraphindia.com/1131127/jsp/opinion/story_17616409.jsp
9
Commonly used term in India; translated from the Hindi to mean ‘the common man’

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years that followed10. The case marked the beginning of a golden era of human rights
jurisprudence in India – a period in which the Supreme Court transformed itself into an
‘institutional ombudsman of human rights’.

10
It is Ironic that the case the right to travel abroad of the daughter in the law of former Prime Minister Indra
Gandhi. See Laurence H, Tribe and Patrick O. Gudridge, ‘The Anti-Emergency Constitution’, Yale Law Journal,
vol. 113 (20014): p.94.

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 Objectives of the study
The objectives of this project works are:

I. To understand the facts and issues of this case;

1. The main facts, situations, and circumstances of the case.

2. The laws that were challenged in the case.

3. The basic issues that were raised in the case.

II. To understand the judgement or the outcome of the case;

1. Grasping the ratio of the case.

III. To analyze the impact of this case on the political system;

1. Impact on powers of parliament.

2. Role of judiciary.

3. Role this case played with the help of some examples.

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 Research methodology

Nature of Research

This research work is descriptive in nature. The project aims to highlight the impact of Shri
Kesavananda Bharati’s claims, on the constitution, the parliament, and the judicial system.
And understand why this case is referred as the greatest decision of the Indian judiciary. It
also describes the various

Sources of Data

The study is done with the help of secondary data. This secondary information has been
obtained primarily from published sources such as books, journals, newspapers, official
websites, government publications and surveys etc.

Mode of Citation

A uniform mode of citation has been used throughout the project. The sentences or words
have been superscripted with a number and their source has been mentioned at the end of the
page with the aforementioned number.

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 Reference Details
Writ Petition No. - 231 of 1977

Petitioner - Mrs. Maneka Gandhi

Respondent – Union of India

Date Of Judegement – 25.01.1978

Bench - M. Hameedullah Beg, C.J., N.L. Untwalia, P.N. Bhagwati, P.S. Kailasam, S.

Murtaza Fazal Ali, V.R. Krishna Iyer and Y.V. Chandrachud11.

11
http://www.manupatrafast.in/pers/Personalized.aspx

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 Facts of the Case
Background:

The Maneka Gandhi case arose in the period immediately following the end of the national
Emergency in India, with the Janata Party government assuming power in 1977. Maneka
Gandhi, daughter-in-law of former Prime Minister Indra Gandhi and founder-editor of a
political magazine Surya, was issued a passport in1976 under the Passports Act. Soon after
the Congress Party was ousted by the Janata Party, she began using Surya as a political
platform to restore the image of the Congress Party and discredit leaders of the new
government.

Facts:

In !977, around the time she wished to leave India to fulfil a speaking engagement12, Maneka
Gandhi received a letter stating that the Government of India has decided to impound her
passport ‘in public interest’ under section 10(3)(c)13 of the Passports Act. The government
turned down her request seeking the reasons why the order had been passed, stating that it
was not ‘in the interest of general public’14.

Further Action:

In reaction, she filed a writ petition in the Supreme Court challenging the passport
impounding order of the government of India and its subsequent refusal to provide reasons
for the same.15

12
S.P. Sayje, ‘Judicial Activism: The Indian Experience’, WashingtonUniversity Journal of Law and Policy, vol.
6(2001): p.29
13
The section states : “The passport authority may impound or cause to be impounded or revoke a passport or
travel document . . . (c) if the passport authority deems it necessary so to do in the interests of the sovereignty
and integrity of India, the security of India, friendly relations of India with any foreign country, or in the
interests of the general public.”
14
It was later discovered that the primary reason for the government’s decision to impound Maneka Gandhi’s
passport was its fear that she would flee India to avoid giving testimony to a Commission of Enquiry set up to
investigate crimes committed during the Emergency (involving her husband) (see Manoj Mate, ‘the Origins of
due process in India: The Role of Borrowing in Personal Liberty and Preventive Detention Cases’, Berkely
Journal of International Law, vol. 28 (2010); p. 216)
15
Ziya Modi, ‘Life, Uninterrupted: The Supreme Court’s Chance at Redemption’, Ten Judgements that Changed
India, p. 39.

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 Facts in issue
There are six writ petitions under article 32 of the constitution challenging the common
question:

 The validity of 24th, 25th, 29th Amendment act of the Constitution.

 Writ petition no. 135 of 1970 pertains to petitioner Kesavananda Bharati who has
filed the petition for the enforcement of his fundamental right under article 25, 26, 14,
19(1)(f) and 31 of the Constitution.
 He prayed the provision of the Kerala land reform act 1963, as amended by Kerala
land reform 1969 be declared unconstitutional, ultra vires & void.
 He further prayed for an appropriate writ or order to issue during the pendency of the
petition.
 During the pendency of the writ petition the Kerala reforms act 1971 was passed
which received the assent of the president on 7th august 1971. The petitioner
Kesavananda Bharati filed an application for permission to urge additional grounds to
impugn the constitutional validity of the said act.
 In the meantime the Supreme Court by its judgement in April 1971 in Kunjukutty Vs
State of Kerala (AIR 1972 SC 2097) upheld the majority judgement of the Kerala
High Court in Narayan Nair Vs State of Kerala (AIR 1971 Ker 98 F.B) whereby
certain sections of the act were struck down.
 After the 29th constitutional amendment came into force on 9th June 1972, the Kerala
land reform (amendment) act 1969 & The Kerala land reform (amendment) act 1971
is inserted in the 9th schedule of the Constitution.
 The petitioner Kesavananda Bharati then moved an application for urging additional
grounds and for amendment of the writ petition in order to challenge the above
constitutional amendments.
 The court allowed both the prayers on August 19, 1972 and issued notice before the
advocate general to appear before the court and take such part in the proceedings as
they may be advised.16

A very small minority holds the view that the doctrine is anti-democratic and counter-
majoritarian in character, and that unelected judges cannot have the power to annul
amendments to the Constitution passed by the Parliament. A weakened political class has,
however, surrendered to judicial supremacy. After the 42nd amendment, made during the
emergency, was struck down by the Supreme Court in Minerva Mills (1980), no attempt has
been made by Parliament to regain the power which the court itself had acknowledged in the
early years of the Constitution, until the Golak Nath Case (1967).17

16
http://www.tinsukialawcollege.org/CASE%20LAWS/KESAVANANDA%20BHARTI%20SIRPASDAGALV
ARU.htm.
17
http://www.indianexpress.com/news/extraordinary-case-study/863792/ .

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 Issues of the case
 Whether land laws challenged by way of writ petition are in consonance with Article
31-C of the constitution.
 The scope of the provision of article 368 of the Constitution of India relating to the
amendment of the fundamental rights contained in Part III of the Constitution i.e.
whether constitutional amendment as per article 368 is applicable to fundamental
rights also?
 The validity of the 24th Amendment Act (1971) of the Indian Constitution.
 The validity of section 2(a), 2(b) and 3 of 25th Amendment Act.
 Whether 29th Amendment Act 1971 is valid?
 The court also had to decide whether its earlier decision in Golak Nath’s Case (AIR
1967 SC 643) was correctly decided or not.

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 Judgement
The Supreme Court reviewed the decision in Golaknath v. State of Punjab, and considered
the validity of the 24th, 25th, 26th and 29th amendments. The case was heard by the largest
ever Constitution Bench of 13 Judges. The Bench gave eleven separate judgements, which
agreed on some points and differed on others.

Majority judgment

Upholding the validity of clause (4) of article 13 and a corresponding provision in Article
368(3), inserted by the 24th Amendment, the Court settled in favour of the view that
Parliament has the power to amend the Fundamental Rights also. However, the Court
affirmed another proposition also asserted in the Golaknath case, by ruling that the expression
"amendment" of the Constitution in article 368 means any addition or change in any of the
provisions of the Constitution within the broad contours of the Preamble and the Constitution
to carry out the objectives in the Preamble and the Directive Principles. Applied to
Fundamental Rights, it would be that while Fundamental Rights cannot be abrogated,
reasonable abridgement of Fundamental Rights could be effected in the public interest. The
true position is that every provision of the Constitution can be amended provided the basic
foundation and structure of the Constitution remains the same.

The nine signatories to the statement were Chief Justice S M Sikri, and Justices J.M. Shelat,
K.S. Hegde, A.N. Grover, B. Jaganmohan Reddy, D.G. Palekar, H R Khanna, A.K.
Mukherjee and Yeshwant Vishnu Chandrachud. Four judges did not sign: A.N. Ray, K.K.
Mathew, M.H. Beg and S.N. Dwivedi.18

S.M. Sikri, Chief Justice

S M Sikri, Chief Justice 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 Hon'ble Chief Justice, fundamental rights conferred by Part III of
the Constitution of India 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 Justice Grover,

18
G. G. Mirchandani (1 January 1977). Subverting the Constitution. Abhinav Publications. pp. 39–40.

13
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 & 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 preserve 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
on the amending power which prevented the Parliament from abolishing or changing the
identity of the Constitution or any of its Basic Structure.

Justice Hegde and Justice Mukherjee,

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 abolish or emasculate those basic elements of fundamental features. The
building of a welfare State 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 un-amended
form.

Justice Jaganmohan Reddy,

Held that the word 'amendment' was used in the sense of permitting a change, in
contradistinction 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 31d, as they hen,
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 of the basic structure of the Constitution or to destroy the identity of the

14
Constitution. Subject to these limitations, Parliament had the right to amend any and every
provision of the Constitution.

Justice H R Khanna,

H R Khanna has given in his judgment that the Parliament had full power to amend the
Constitution, however, since it is only a "power to amend", the basic structure or framework
of the structure should remain intact. While as per the aforesaid views of the six learned
Judges, certain "essential elements" (which included fundamental rights) of the judgment
cannot be amended as there are certain implied restrictions on the powers of the parliament.

According to the Hon'ble 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.19

This gave birth to the Basic structure doctrine, which has been considered as the cornerstone
of the Constitutional law in India. 20

19
"Revisiting a verdict". Chennai, India: Frontline. Jan 14–27, 2012. Archived from the original.
20
"Basic structure of the Constitution revisited". Delhi, India: The Hindu. May 21, 2007.

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 Ratio of the Case
This judgement ruled that Article 368 does not enable Parliament in its constituent capacity to
delegate its function of amending the Constitution to another legislature or to itself in its
ordinary legislative capacity. This ruling made all the deemed constitutional amendments
stipulated under the legislative powers of the parliament as void and inconsistent after the
24th constitutional amendment. These are articles 4 (2), 169 (3), 239A2, 244A4, 356 (1) c,
Para 7(2) of Schedule V and Para 21(2) of Schedule VI. Also articles 239AA (7) b, 243M (4)
b-, 243ZC3 and 312(4) which are inserted by later constitutional amendments and envisaging
deemed constitutional amendments under legislative powers of the parliament, should be
invalid. The Supreme Court declared in the case ‘A. K. Roy, Etc vs Union of India and Anr
on 28 December 1981’ that the article 368(1) clearly defines constituent power as ‘the power
to amend any provision of the constitution by way of an addition, variation or repeal’. it
reiterated that constituent power must be exercised by the parliament itself in accordance
with the procedure laid down in article 368.21

The government of Indira Gandhi did not take kindly to this implied restriction on its powers
by the court. On 26 April 1973, Justice Ajit Nath Ray, who was among the dissenters, was
promoted to Chief Justice of India superseding three senior Judges, Shelat, Grover and
Hegde, which was unprecedented in Indian legal history. Advocate C.K. Daphtary termed the
incident as “the blackest day in the history of democracy”. Justice Mohammad Hidayatullah
(previous Chief Justice of India) remarked that “this was an attempt of not creating ‘forward
looking judges’ but ‘judges looking forward’ to the office of Chief Justice”.22

The 42nd Amendment, enacted in 1976, is considered to be the immediate and most direct
fall out of the judgement. Apart from it, the judgement cleared the deck for complete
legislative authority to amend any part of the Constitution except when the amendments are
not in consonance with the basic features of the Constitution.

The basic structure doctrine was adopted by the Supreme Court of Bangladesh in 1989, by
expressly relying on the reasoning in the Kesavananda case, in its ruling on Anwar Hossain
Chowdhary v. Bangladesh (41 DLR 1989 App. Div. 165, 1989 BLD (Spl.) 1).23

21
"Pages 311 & 312 of A. K. Roy, Etc vs Union Of India And Anr on 28 December, 1981". 1981.
22
Supreme Court Bar Association Archived 2009-10-04 at the Wayback Machine.
23
http://www.hinduonnet.com/fline/fl1809/18090950.htm.

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 Impact of this Case
All this effort was to answer just one question: was the power of the parliament to amend the
Constitution unlimited? In other words, could Parliament alter, amend, abrogate any part of
the Constitution even to the extent of taking away all fundamental rights?

Article 368, on a plain reading, did not contain any limitation on the power of Parliament to
amend any part of the Constitution. There was nothing that prevented Parliament from taking
away a citizen’s right to freedom of speech or his religious freedom. The 703-page24
judgment revealed a sharply divided court and, by a thin majority of 7:6, it was held that
Parliament could amend any part of the Constitution so long as it did not alter or amend “the
basic structure or essential features of the Constitution.” This was the inherent and implied
limitation on the amending power of Parliament. This basic structure doctrine, as future
events showed, saved Indian democracy and Kesavananda Bharati will always occupy a
hallowed place in our constitutional history.

Judiciary has been termed as the watch dog of a democracy, it monitors and maintains the
checks and balances over the other arms of the government. Thus judiciary emerges as a
mediator when any organ of the government exercises ‘excess power’ which tends to violate
the larger societal or individual interest.

To ensure that constitutionally guaranteed freedoms such as freedom to speak in public or

peacefully assemble are interpreted as per the true constitutional philosophy, judiciary has
been kept free from any external pressures. This is particularly useful when judiciary is
interpreting a case of conflict between say between the government (political party in power)
and certain protesting people of the civil society who have peacefully articulate their opinions
on social issues. Judiciary acts as a guardian of fundamental rights which are constitutionally
granted to every citizen in India.

24
http://www.thehindu.com/opinion/op-ed/the-case-that-saved-indian-democracy/article4647800.ece

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Minerva Mills v Union of India – 1980
Minerva Mills Ltd. and Ors. v. Union Of India and Ors. (AIR 1980 SC 1789) is a landmark
decision of the Supreme Court of India that applied and evolved the basic structure doctrine
of the Constitution of India.25

In the Minerva Mills case, the Supreme Court provided key clarifications on the
interpretation of the basic structure doctrine. The court unanimously ruled that the power of
the Parliament of India to amend the constitution is limited by the constitution. Hence the
parliament cannot exercise this limited power to grant itself an unlimited power. In addition,
a majority of the court also held that the parliament's power to amend is not a power to
destroy. Hence the parliament cannot emasculate the fundamental rights of individuals,
including the right to liberty and equality.

The ruling struck down section 4 and 55 of the Constitution (Forty-Second Amendment) Act.

Section 55 of the 42nd Amendment, had added clauses (4) and (5) to Article 368 of the
Constitution which read:

(4) No amendment of this Constitution (including the provisions of Part III) made or
purporting to have been made under this article whether before or after the commencement of
section 55 of the Constitution (Forty-second Amendment) Act, 1976 shall be called in
question in any court on any ground.

(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever
on the constituent power of Parliament to amend by way of addition, variation or repeal the
provisions of this Constitution under this article.

The above clauses were unanimously ruled as unconstitutional. Chief Justice Yeshwant
Vishnu Chandrachud explained in his opinion that since, as had been previously held in
Kesavananda Bharati v. State of Kerala, the power of Parliament to amend the constitution
was limited, it could not by amending the constitution convert this limited power into an
unlimited power (as it had purported to do by the 42nd amendment).

Since the Constitution had conferred a limited amending power on the Parliament, the
Parliament cannot under the exercise of that limited power enlarge that very power into an
absolute power. Indeed, a limited amending power is one of the basic features of our
Constitution and therefore, the limitations on that power cannot be destroyed. In other words,
Parliament cannot, under Article 368, expand its amending power so as to acquire for itself
the right to repeal or abrogate the Constitution or to destroy its basic and essential features.
The donee of a limited power cannot be the exercise of that power convert the limited power
into an unlimited one.

25
. "Minerva Mills Ltd. & Ors. v. Union of India & Ors: A Jurisprudential Perspective". Social Science
Research Network.

18
Section 4 of the 42nd Amendment, had amended Article 31C of the Constitution to accord
precedence to the Directive Principles of State Policy articulated in Part IV of the
Constitution over the Fundamental Rights of individuals articulated in Part III. By a verdict
of 4-1, with Justice Prafullachandra Natwarlal Bhagwati dissenting, the court held section 4
of the 42nd Amendment to be unconstitutional.

Chief Justice Chandrachud wrote: Three Articles of our Constitution, and only three, stand
between the heaven of freedom into which Tagore wanted his country to awake and the abyss
of unrestrained power. They are Articles 14, 19 and 21. Article 31C has removed two sides of
that golden triangle which affords to the people of this country an assurance that the promise
held forth by the preamble will be performed by ushering an egalitarian era through the
discipline of fundamental rights, that is, without emasculation of the rights to liberty and
equality which alone can help preserve the dignity of the individual.26

Waman Rao v Union of India – 1981

Waman Rao Vs Union of India (AIR 1981 SC 271)

There was an Act called Maharashtra Agricultural Lands (Ceiling on Holdings) Act 1962,
hereinafter referred as the Act, imposed a ceiling on agricultural lands. Thereafter the ceiling
was revised from time to time and certain other amendments were brought into operation.
The validity of these Acts were challenged before the Bombay High Court on the ground that
they take away the fundamental rights. Articles 31A and 31B were also brought under the
purview of challenge on the ground that they infringe the basic structure of the constitution.
But in the High Court level all challenges were rejected. Against the decision appeal was
filed in the Supreme Court in the case of Dattatraya Govind Vs State of Maharashtra (1977 2
SCR 790). But those appeals were also dismissed on reasons stated by the Court. This
judgment of Duttatraya case was delivered during emergency. As the emergency had been
revoked the petitions were filed in the Court seeking review of the Duttatraya case. Therefore
the present case has basically emerged as a review of the Dattatraya case.

Argument Advanced - In this case the main challenge was the constitutional validity of
Articles 31A, 31B and un-amended article 31C. It was strongly argued against the protective
nature of these articles which exclude all possibilities of challenge to the laws included under
the shield. They argued that such shield will violate certain fundamental rights enshrined
under part III of the constitution. The appellants replied that the very provisions of the
constitution which the respondents rely to save impugned laws are invalid as the later
amendments infringe the basic essential structure of the constitution as propounded in
Keshavananda Bharati Case. The Petitioners also challenged the validity of constitutional
fortieth amendment on the ground that it was passed in such a duration when the Parliament
was not in lawful existence as it was on an extended tenure.

26
R.C. Bhardwaj, ed. (1 January 1995). Constitution Amendment in India (Sixth ed.). New Delhi: Northern
Book Centre. p. 12.

19
Ratio of Judgment

The bench which gave this judgment was consisting of Chandrachud C.J, V.R Krishna Iyer,
V.D. Tulzapurkar, A.P. Sen and Bhagwati. The majority judgment was delivered by
Chandrachud C.J on behalf of V.R Krishna Iyer, V.D. Tulzapurkar; A.P. Sen. Justice
Bhagwati gave his dissenting opinion. The judgment is split in a ratio of 4:1.

The decision of this case a land mark one in the constitutional jurisprudence of India. This
case has helped in determining a satisfactory method of preserving the settled position and to
address grievances pertaining to the violation of fundamental rights. The judgment appears to
be a sound one as it has created a line of determination between the Acts previous to and after
the Keshavananda Bharati case. Now it is easier to decide as to which laws can be challenged
and which are not. But the judgment left certain areas while dealing with Article 31C and the
doctrine of stare decisis. However if these two aspects are rectified then this judgment is very
sound and effective. 27

27
http://www.legalserviceindia.com/article/l36-Waman-Rao-Vs-Union-of-India.html.

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 Conclusion
Kesavananda Bharati case can be understood as an important episode in a long serial of tiff
between Indian Parliament and the Judiciary headed by The Supreme Court of India triggered
over the “property rights” clause in the part 3 of the Indian Constitution.

It can be concluded that the petitions contended the application of land ceiling laws violated
the basic structure of the constitution. In effect the review bench was to decide whether or not
the basic structure doctrine restricted parliament’s power to amend the constitution.

The basic structure of the Constitution maybe said to consist the following features among
others:

1. Supremacy of the Constitution.

2. Rule of law
3. Objectives specified in the preamble
4. Principle of Separation of power.
5. Judicial review
6. The Sovereign, Democratic, Republican Structure, Secularism, Unity and Integrity of the
Nation.
7. The essence of other fundamental rights in part 3 of the constitution.
8. Federal character of the constitution.

One thing that emerged out of this tussle between the Parliament and the Judiciary is that all
the laws and constitutional amendments are now subject to judicial review and laws that
transgress the basic structure are likely to be struck down by the Supreme Court. In the
essence parliament’s power to amend the constitution is not absolute and the Supreme Court
is the final arbiter and interpreter of all constitutional amendments.

It may be said that the final word on the issue of the basic structure of the Indian constitution
has not been pronounced by the Supreme court- in my opinion a scenario that is unlikely to
change in the near future. While the idea that there is such a thing as a basic structure to the
Constitution is well established, its contents cannot be completely determined with any
measure of finality until a judgement of the Supreme Court spells it out. The Kesavananda
Bharati judgement is the key to interpreting and challenging any new legislation or
constitutional amendment, to determine if it violates the basic structure of the constitution or
not.

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 References
Cases
1. I.C. Golak Nath & Ors. Vs. The State of Punjab & Ors: 1967 AIR 1643, 1967 SCR
(2) 762
2. Minerva Mills Ltd. & Ors. v. Union of India & Ors: AIR 1980 SC 1789
3. Waman Rao Vs Union of India: AIR 1981 SC 271.
4. A. K. Roy, Etc vs. Union of India and Anr 1982 AIR 710, 1982 SCR (2) 272

Offline books
1. AIR, 1973 Supreme Court Cases B.
2. The Constitution of India, Central Law Agency, 2013
3. Zia Mody, “10 Judgements that changed India”
4. G. G. Mirchandani, “Subverting the Constitution”. Abhinav Publications. pp. 39–40.
5. R.C. Bhardwaj, “Constitution Amendment in India” (Sixth Ed.). (New Delhi: Northern
Book Centre. p. 12.)

Journal Articles
1. Satya Prateek (2008). "Today's Promise, Tomorrow's Constitution: 'Basic Structure',
Constitutional Transformations and the Future of Political Progress in
India" (PDF). NUJS Law Review. West Bengal National University of Juridical
Sciences.
2. "Revisiting a verdict". Chennai, India: Frontline. Jan 14–27, 2012.
Newspaper Articles
1. "Basic structure of the Constitution revisited". Delhi, India: The Hindu. May 21, 2007

Websites
1. http://www.legalserviceindia.com/article/l36-Waman-Rao-Vs-Union-of-India.html
2. http://lawmantra.co.in/case-study-kesavananda-bharati-vs-state-of-kerala-and-anr-24-
april-1973
3. http://www.indiankanoon.org/doc/257876/
4. http://www.civilserviceindia.com/subject/Law/notes/fundamental-right-
kesavanda.html
5. http://www.indianexpress.com/news/extraordinary-case-study/863792/
6. http://www.thehindu.com/opinion/op-ed/the-case-that-saved-indian-
democracy/article4647800.ece
7. http://www.hinduonnet.com/fline/fl1809/18090950.htm
8. http://www.tinsukialawcollege.org/CASE%20LAWS/KESAVANANDA%20BHARTI
%20SIRPASDAGALVARU.htm

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