CASE COMMENT CASE NO.

KESAVANANDA BHARATI V. STATE OF KERALA

Citation (1973) 4 SCC 225; AIR 1973 SC 1461

Court Supreme Court of India

Case number (Writ Petition (Civil) 135 of 1970)

Bench Sikri, C. J., A. N. Grover, A. N. Ray, D. G. Palekar, H. R.

Khanna, J. M. Shelat, K. K. Mathew, K. S. Hegde, M.H.
Beg, P. Jaganmohan Reddy, S. N. Dwivedi, Y. V.
Chandrachud

Background information on the case and its origins -

The origins of the Kesavananda Bharati case can be traced back to the land
reforms that were introduced in the Indian state of Kerala in the 1950s and 1960s.
These reforms were aimed at redistributing land from large landowners to the
landless and the poor. In 1963, the Kerala government passed the Kerala Land
Reforms Act, which placed a limit on the amount of land that a person could
hold. The Act provided for the acquisition1 of excess land from landonwers and
its distribution to the landless and the poor.

Sri Kesavananda Bharati was the head or pontiff of the Edneer Mutt, a Hindu
religious institution in Kerala, India. In 1970, the Government of Kerala imposed
restrictions on the ownership of land held by religious institutions. The Edneer
Mutt, headed by Sri Kesavananda Bharati, challenged the constitutionality of the

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Act in the Kerala High Court. The case eventually reached the Supreme Court,
which ruled in favour of the state government.

The Parliament of India in the meantime passed the 24th Amendment to the
Constitution, which sought to curtail2 the powers of the judiciary and limit the
scope of judicial review. The 25th and 29th Amendments were also passed, which
sought to limit the fundamental rights of citizens and give Parliament the power
to amend any part of the Constitution.

Sri Kesavananda Bharati filed a petition challenging the validity of these

amendments, arguing that they violated the basic structure of the Constitution.
This led to the landmark Kesavananda Bharati judgment, which upheld the basic
structure doctrine and placed limits on the power of the Parliament to amend the
Constitution.

The case became one of the most important case in Indian constitutional history,
and Sri Kesavananda Bharati is remembered as a key figure in the fight to uphold
the principles of democracy and the rule of law in India.

Issues raised in the case -

The doctrine of basic structure of the Constitution: The Supreme Court, in its
judgment, established the doctrine of basic structure of the Constitution, which
holds that certain fundamental features of the Constitution, such as the supremacy
of the Constitution, the rule of law, and the independence of the judiciary, cannot
be amended or abrogated3 by the Parliament through a constitutional amendment.
The question before the court was whether this doctrine was a part of the
Constitution and whether the Parliament's power to amend the Constitution
extended to this doctrine.

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1. the power of the union or a state government in India to take private land for public 2. impose a restriction on
3. repeal

The key legal issues involved in the Kesavananda Bharati case were the
constitutional validity of the Kerala Land Reforms Act, the extent of the
Parliament's power to amend the Constitution, and the establishment of the
doctrine of basic structure of the Constitution.

Arguments -

The Kesavananda Bharati case involved several parties, including Kesavananda

Bharati, the petitioner, and the State of Kerala, which defended the
constitutionality of the Kerala Land Reforms Act. Additionally, there were
several intervenors4 who supported one or the other side in the case.

Petitioner's arguments: Kesavananda Bharati, a religious leader and landowner,

argued that the Kerala Land Reforms Act violated his fundamental right to
property, which was guaranteed by the Constitution of India. He also argued that
the Parliament's power to amend the Constitution was not unlimited and that
certain fundamental features of the Constitution, such as the right to property,
were beyond the scope of amendment.

Respondent's arguments: The State of Kerala, which defended the

constitutionality of the Kerala Land Reforms Act, argued that the Act was a
reasonable restriction on the right to property and that it was aimed at promoting
social justice and reducing poverty. The State also argued that the Parliament's
power to amend the Constitution was unlimited and that there were no limits to
this power.

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4. one who intervenes as a third party in a legal proceeding

Intervenors' arguments: There were several intervenors in the case who

supported one or the other side. Some intervenors argued that the Kerala Land
Reforms Act was a necessary measure to promote social justice and reduce
poverty, while others argued that the Act violated the fundamental right to
property. Some intervenors also argued that the Parliament's power to amend the
Constitution was not unlimited and that certain fundamental features of the
Constitution, such as the independence of the judiciary, were beyond the scope
of amendment.

The arguments presented by the parties in the Kesavananda Bharati case revolved
around the constitutionality of the Kerala Land Reforms Act, the extent of the
Parliament's power to amend the Constitution, and the fundamental rights
guaranteed by the Constitution.

Judgment -

The Kesavananda Bharati judgment, delivered on 24 April 1973, is a landmark

judgment of the Supreme Court of India. The case was filed by Sri Kesavananda
Bharati, the head of a Hindu religious mutt in Kerala, challenging the
constitutional validity of the 24th, 25th and 29th Amendments to the Indian
Constitution, which sought to curtail the powers of the judiciary and the
fundamental rights of citizens.
The Kesavananda Bharati case was heard by a bench of 13 judges of the Supreme
Court of India, making it one of the largest benches in Indian legal history.

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The bench comprised of Chief Justice S. M. Sikri, Justice J.M.Shelat, Justice K.S.
Hegde, Justice A.N.Grover, Justices A.N. Ray, Justice P. Jaganmohan Reddy,
Justice D.G. Palekar, Justice H.R. Khanna, Justice K.K. Mathew, Justice M.H.
Beg, Justice S.N. Dwivedi, Justice A.K. Mukherjee and Justice Y.V.
Chandrachud.

The bench was set up to hear the case as it involved important constitutional
questions regarding the powers of the Parliament to amend the Constitution. The
bench took six months to hear the arguments and deliver the final judgment.

The Supreme Court, in a historic 7:6 majority decision, propounded the basic
structure doctrine of the Constitution, which holds that certain fundamental
features of the Constitution, such as democracy, secularism, federalism5, and the
rule of law, cannot be amended by parliament. The court also held that the power
of judicial review is an integral part of the basic structure of the Constitution, and
cannot be taken away by Parliament through constitutional amendments.

The significance of the Kesavananda Bharati case lies in the fact that it
established the doctrine of basic structure of the Indian Constitution. The basic
structure doctrine holds that certain fundamental features of the Constitution,
such as the supremacy of the Constitution, the rule of law, and the independence
of the judiciary, cannot be amended or abrogated by the Parliament through a
constitutional amendment.

This doctrine has served as a check on the power of the Parliament to amend the
Constitution and has ensured that the Constitution remains a living document that

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5. accommodation of diversity and regional autonomy within a larger political unit

is responsive to changing times while preserving its fundamental values and

principles. The Kesavananda Bharati case has thus had far-reaching consequences
for the constitutional development of India, making it one of the most significant
cases in Indian constitutional law.

Conclusion –
The Kesavananda Bharati case has been hailed as a landmark in the history of
Indian constitutional law as it affirmed the supremacy of the Constitution and the
independence of the judiciary in protecting the basic structure of the Constitution.
The judgment laid down several principles that have become the bedrock of
constitutional law in India. These include the principles of the rule of law,
separation of powers, and the independence of the judiciary.It has also been
instrumental in shaping the Indian judiciary's approach to constitutional
interpretation and the limits of Parliament's power to amend the Constitution.

The Supreme Court, in a 7-6 majority decision, held that the Constitution of India
has a basic structure that cannot be altered even by a constitutional amendment.
The court held that the Parliament's amending power under Article 368 is not
unlimited and that it cannot alter the basic structure of the Constitution. This has
served as an important check on the power of the Parliament to amend the
Constitution.
The case of Kesavananda Bharati vs the State of Kerala as mentioned supra had
been heard for 68 days, the arguments commencing on October 31, 1972, and
ending on March 23, 1973. The hard work and scholarship that had gone into the
preparation of this case were breathtaking. Literally hundreds of cases had been
cited and the then Attorney-General had made a comparative chart analysing the
provisions of the constitutions of 71 different countries.

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The majority of the bench wished to safeguard the Constitution by preserving its
basic features. The judgment was based on sound reasoning and it was given after
a careful analysis of multifarious aspects. The bench opined that if the Parliament
were to get unfettered power to amend, there were chances of that power to be
misused, and that governments would change it as per their own preferences and
whims. Such limitless powers vested in the hands of the government would mean
that the basic features and the very essence and spirit of the Indian Constitution
could be changed. There was a need for a doctrine which could protect the rights
of both the Indian Parliament and Indian citizens; the bench met this need halfway
and came up with the basic structure doctrine, that protects the rights of both
camps.
It is to be noted that while in the US, only 27 amendments have been made, India
has seen over one hundred amendments since independence. Despite this big
number, the spirit of the Constitution and also the ideas of the Constitution-
makers have not been tampered with. It is because of the bench’s decision that
the identity and spirit of the Constitution have not been lost. This landmark case
has given our Constitution stability. Even though the petitioner lost this case
partially, the SC ruling in the Kesavananda Bharati case turned out to be a saviour
for Indian democracy, and also prevented the Constitution from losing its spirit.

Case Summary –
Kesavananda Bharati & others Versus State of Kerala is certainly one of the
leading cases in the constitutional history of India if not the most important
judgement of post-independent India and is popularly known as the Fundamental
Rights case.

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The majority judgement in the case was pronounced by S.M.Sikri C. J., Hegde J,
Mukherjea J, Shehlat J, Grover J, Jaganmohan Reddy J, Khanna J, and was
dissented by Ray J, Palekar J, Mathew J, Beg J, Dwivedi J and Chandrachud J.

It is rightly said that the judgement in the instant case brought an end to the
conflict between the executive and the judiciary and proved to be a saviour of the
democratic system and set up in the country. The resultant judgement in the case
was a hard-fought legal battle between the two constitutional stalwarts and legal
luminaries6 namely N.A. Palkhivala (who represented Petitioners) and H.M.
Seervai (who represented the State of Kerala). The hearing in the case took place
for sixty-eight long days and finally, a voluminous 703-page judgement was
pronounced on 24th April 1973.

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6. a person who inspires or influences others.

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CASE COMMENT –
Nearly 40 years ago, Bharati brought a case before the Supreme Court
challenging the Kerala Land Reform Act. This case, Kesavananda Bharati vs. the
State of Kerala, resulted in the largest bench ever to sit in the apex court,
consisting of 13 judges. The proceedings lasted for a record-breaking 68 days,
and the ruling established the Supreme Court as the protector of the fundamental
structure of the Constitution. The court declared that while the Constitution can
be changed, the basic structure cannot be altered. The landmark judgment was
delivered on April 24th, 1973, with a slim majority of 7:6. The majority held that
any provision of the Indian Constitution can be amended by Parliament to fulfill
its socioeconomic obligations, as long as it does not change the Constitution's
basic structure. However, the minority expressed concern, believing that
providing Parliament with unlimited amending power was problematic.
The Supreme Court clarified that although the Preamble can be subjected
to Constitutional Amendments under Article 368, it is still part of the
Constitution's basic structure and cannot be altered. Therefore, it is considered
the heart and soul of the Constitution. The court also ruled that the 24th
Constitutional Amendment of 1971 is valid, while the second part of the 25th
Amendment of 1971 is not. Additionally, the court declared Article 31C
unconstitutional, as judicial review is an essential component of the judiciary and
cannot be removed. Despite Parliament's inability to violate fundamental rights,
the court upheld legislation that eliminated the fundamental right to property, as
the "basic structure" would not be violated in spirit by the constitutional change.

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 CASE COMMENT CASE NO. 2

MOHD. AHMAD KHAN V. SHAH BANO BEGUM

Citation AIR 1985 SC 945

Court Supreme Court of India

Case number Criminal Revision No. 320 of 1979, Madhya Pradesh High Court

Bench Hon’ble Chief Justice Chandrachud, Justice Ranganath Misra, Justice

D.A. Desai, Justice O. Chinnappa Reddy, and Justice E.S Venkataramiah.

Acts Muslim Personal Law (Shariat) Application Act, 1937

Referred The Code of Criminal Procedure, 1973

Sections Section 2 of the Shariat Act

Sections 125 and 127 of the Criminal Procedure Code, 1973

Brief Facts of the case -

Shah Bano was married to Mohd. Ahmed Khan since 1932 and had children. In
1978, she was cast out along with her children by her husband. Having no other
option, she was compelled to file a petition for maintenance in 1978 for her kids and
herself under Section 125 of the Criminal Procedure Code, 1973. The husband, on
the other hand, instantly dissolved the marriage by irrevocable talaq.

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 In Muslim Personal Law, the provision for maintenance of the wife is limited to the
Iddat1 period, and the husband has no liabilities thereafter.

However, he was directed by the magistrate to pay maintenance of Rs.25 per month
to the respondent. Aggrieved2 by the amount of maintenance, she filed a revision
petition to enhance and increase the maintenance. The instant case is a result of an
appeal filed by the husband, Mohd. Ahmed Khan, seeking the dismissal of a petition
filed by his aggrieved wife who prayed for an increase in the amount of
maintenance.

Issues involved in the case -

The following issues were to be decided by the Supreme Court:

 Is there any obligation on the husband under Muslim personal law to give
maintenance to his wife after divorce apart from?

 Whether Section 125 of the Code is applicable to Muslim women?

 Are Muslim women eligible for any kind of sum payable by their husband apart from
‘Mahr3’ or ‘dower’?
His arguments were also supported by the All-India Muslim Personal Law Board.
They argued that the court has no power to interfere in matters governed by Muslim
Personal Law as it is against the Sharia Law. He also argued that Section 125 of the
Code is not applicable to her as these matters are governed by The Muslim Personal
Law (Shariat) Application Act, 1937.

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1. period of chastity that a married Muslim women is supposed to observe, following the separation from her husband
either due to death of the husband or divorce 2. feeling resentment at having been unfairly treated 3. The amount to
be paid by the groom to the bride at the time of marriage

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 Arguments presented by respondent -

The respondent, Shah Bano, claimed maintenance from her husband under Section
125 of the Criminal Procedure Code, 1973. It was argued that this provision imposes
a duty on the husband to provide maintenance to his wife after divorce there are no
means of sustenance for her. The respondents relied on the case of Bai Tahira v. Ali
Hussain Fidalli Chothia (1979) and Fazlunbi v. K. Khader Vali (1980) in which the
court settled the position with respect to the application of Section 125 of the Code
to Muslim women. It was held that this section is equally applicable to Muslim
women as well.

Judgment of the court -

Ratio decidendi

With respect to the application of Section 125 of the Code, the Hon’ble Supreme
Court held that it is applicable to all women irrespective of their religion. While
dealing with the question of whether there is any conflict between Section 125 of
the Code and the Muslim Personal Law, the court held that Section 125 is a part of
the Criminal Procedure Code, 1973 and not of any personal law. This means every
spouse irrespective of their religion is under an obligation to pay maintenance to his
wife until she remarries.

Further, it was held that mahr or dower is an amount payable to the Muslim wife as
a consideration for marriage and not after divorce. If a Muslim husband has paid the
dower or mahr completely then it will not satisfy his duty of paying maintenance to
his wife after divorce. Mahr or dower is a mark of respect for a wife under Muslim
personal law and cannot be considered as an amount payable on divorce. Thus, the
petitioner was asked to pay maintenance to his wife till she remarries.

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Opinions of the judges -

The bench consisting of J. A. Vardharajan and Murtaza Fazal Ali was of the view
that the cases referred for the applicability of Section 125 on Muslim women were
not decided correctly and thus, referred the appeal to be decided by a larger bench
consisting of the Chief Justice. This is because they opined4 that these cases need
reconsideration as they are against the concept of divorce which is governed
by Section 2 of the The Muslim Personal Law (Shariat) Application Act, 1937. On
this issue, the Supreme Court observed that Section 125 is clear and precise and
provides that a husband has to pay maintenance to his wife if she is not able to
maintain herself. Religion has no role to play in the applicability of this section and
that it does not limit itself to any particular class or religion of society. The then
Chief Justice YY Chandrachud opined that the aim of the provision is to provide
speedy remedy to those women who are not able to maintain themselves after
divorce.

The petitioner and his supporters relied on some texts and books to support the
contention that the Muslim husband is not under an obligation to pay maintenance
to his wife after iddat. The court observed that the texts referred by them failed to
establish this proposition and stress was laid to give regard to entire Muslim personal
law and then decide the liability of a husband to maintain his wife after divorce who
has no means to sustain.

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4. State as one’s opinion

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 The court found the comparison of the amount of Mahr given as consideration to
Muslim women on marriage with the amount payable after divorce as maintenance,
unjust and incorrect. The true position is, if a Muslim woman can maintain herself,
only then is the duty of the husband to pay maintenance after the iddat period ceases.
If she is unable to do so, she can take the recourse of Section 125. This also settled
the position that there is no conflict between the said provision and the Muslim
Personal Law.

With respect to the issue of any other sum payable to the wife apart from dower of
mahr, the court observed that the dower is a sum paid to the wife as a consideration
for marriage and is a mark of respect and not as maintenance after divorce.

It was also observed that Mahr is divided into two parts:

 Prompt – payable on demand of wife,

 Deferred – payable on dissolution of marriage or death of husband.

However, this amount cannot be considered as maintenance. This also opposes its
aim which is respect for the wife. Hence, it was concluded that any sum payable out
of respect or a mark of respect cannot be considered as a sum payable on divorce.

After effects of the judgment -

This case was highly criticised by the Muslim community and the All India Muslim
Personal Law Board on the ground that the Courts have no power to interfere in their
religious matters and that this violates the Sharia Law. This resulted in huge
controversy and protests. Many people from the community came to the streets
and protested against the decision of the court.

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 Further, the Parliament enacted the Muslim Women (Protection of Rights on
Divorce) Act, 1986 in order to nullify5 the decision of the court.

The Act was, however, contrary to the judgement delivered in the Shah Bano case
and took away the remedy of Section 125 of the Code given to Muslim Women. It
provided that the liability of a husband to pay maintenance to his wife is restricted
to iddat period only. However, the constitutional validity of the Act was challenged
in the case of Daniel Latifi v. Union of India (2001) on the ground that it is violative
of Article 14, 15 and 21 of the Constitution as it deprives Muslim women right to
seek maintenance under Section 125 of the code. The Supreme Court in this case
clarified the position with respect to maintenance to be paid to Muslim women by
their husbands after divorce and provided that:

 The Muslim husband is under an obligation to pay maintenance to his wife beyond
the iddat period after divorce and that he must also make fair and reasonable
provisions for her future maintenance.

 The court also provided that if she is unable to maintain herself after iddat period, it
will be the responsibility of the relatives of her husband to take care of her and give
her maintenance. She can file an application in this regard according to Section 4 of
the Act.

 If relatives are able to do so, it is the duty of the Wakf board to maintain her.

This was done to strike a balance between personal laws and the rights of divorced
women to seek maintenance and so the validity of the Act was upheld. However, the
Act itself was contrary to the judgement delivered by the Supreme Court in this case
rendering the judgement inapplicable.

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5. Make legally invalid

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 But the Hon’ble Supreme Court settled the position with respect to maintenance to
Muslim women after divorce in the case of Daniel Latifi v. Union of India by
stating that Muslim women are entitled to maintenance even after the iddat period
if she is unable to maintain themselves. Thus, the case of Shah Bano is considered
as one of the historic judgements with respect to the rights of Muslim women in
the country.

Analysis of the judgement -

This case is a landmark judgement with respect to the rights of Muslim women. It
settled the law and position related to their right to maintenance after divorce. Not
only this, but the Supreme Court also stressed on the importance of Uniform Civil
Code in this case. Chief Justice Y.V. Chandrachud opined that this issue of
conflicting ideologies and unsettled position with respect to laws can be resolved by
the Uniform Civil Code. However, No Uniform Civil Code has been enacted so far.
This is because interfering with personal laws may not be acceptable to people and
create a situation of chaos in the country.

Though the judgement in this case was criticised by those who supported the
petitioner, one cannot forget that it gave equal rights of maintenance to Muslim
women under Section 125 of the Code of Criminal Procedure, 1973. It also led to
the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986
which settled the issue of maintenance to Muslim women after divorce. Such
legislation for the protection of rights of Muslim women was enacted for the first
time and appreciated by women as their rights were discussed and given importance.

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 What was the impact of the Shah Bano case?

The case led to the enactment of the Muslim Women (Protection of Rights on
Divorce) Act in 1986. Although criticized for its limitations, this law aimed to
address a few of the issues raised by the case, such as the maintenance of divorced
Muslim women.

 If the case had not taken place, there might have been delays or reluctance 6 in
enacting any legal reforms to protect the rights of divorced Muslim women.
 The limitation was that the enactment of this Act, as a response to the Shah Bano
case, limited the maintenance rights of divorced Muslim women.
 That is, the period for which a Muslim woman was entitled to receive maintenance
(also known as the "iddat" period) was limited to the duration of the iddat period
after divorce.

Conclusion -

The present case is considered to be a milestone in the development of Muslim Law

and the rights of women in the country. It gave equal rights to one such section
which is considered vulnerable and is neglected in society. Even today the case is
considered as one of the landmark cases delivered by the judiciary. It also
highlighted the importance of Uniform Civil Code in the country mentioned
in Article 44 of the Constitution.

Women were mostly exploited and this is one of the situations where Muslim
women initiated to express themselves and fight for their rights.

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6. Unwillingness

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This case serves as a big step towards the practice of courts of deciding involving
interpretation of personal laws.

Though this case led to protest and controversy, it also resulted in enactment of a
legislation to protect the rights of Muslim women whose position was settled by the
court in another case.

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 CASE COMMENT –

The Shah Bano Begum Case established that even after a Muslim woman is
divorced, she has the right to support herself and her children, regardless of her
husband's opinion or use of Triple Talaq to file for divorce. However, some people
criticized the decision, citing the limited job opportunities and access to education
Muslim women face regardless of their marital status. This controversy brought
attention to the importance of religious personal law and whether the Uniform Civil
Code should apply to all religions and practices.

The case dealt with the matter of maintenance rights for a divorced Muslim
woman named Shah Bano, who requested maintenance from her ex-husband by
citing Section 125 of the Code of Criminal Procedure. In response, the Congress
government passed the Muslim Women (Protection of Rights on Divorce) Act in
1986. This act limited the maintenance rights of divorced Muslim women, diluting
the Supreme Court's ruling and restricting the right of Muslim divorcees to receive
alimony from their ex-spouses to only 90 days after the divorce, known as the iddah
period under Islamic law.

The Shah Bano case sparked nationwide conversations on women's rights and
gender equality, highlighting the need for changes to personal laws. Eventually, this
conversation led to the enactment of the Muslim Women (Protection of Rights on
Divorce) Act. Although the case raised the question of whether India requires a
uniform civil code, it did not directly lead to its implementation.

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