Two Battles, One Victor: How the Constitution Prevailed in 1973 and 2025

The constitutional confrontations of 1973 and 2025, though separated by five decades, unearth a striking structural continuity.

Constitutionalism in Indian history has witnessed frequent institutional confrontations that test the resilience of the constitutional framework. This article attempts to throw a light on the two battles that Constitution has witnessed and how it emerged victorious in both the battles, i.e. the 1973 confrontation in Kesavananda Bharati v. State of Kerala¹ and the recent 2025 Supreme Court opinion in the Presidential reference with regards to the powers of the President and Governors under Articles 200 and 201 of the Constitution. Though the battles share the gap of 5 decades, both episodes assert that it is the Constitution and not Parliament, not the executive, not even the judiciary that is supreme in India’s democratic equilibrium.

Introduction

The Constitution employs the theory of separation of powers that typically defines the powers among three pillars, the legislature, executive and judiciary. Though the constitutional framework strives for harmony and political practice, at times it generates conflict and these conflicts emerge as constitutionally significant and thereby demanding the Supreme Court to set forth the institutional limits and reaffirm constitutional morality.

Two of the greatest episodes have shaped the trajectory of Indian constitutional law:

1. The Kesavananda Bharati case² (1973) a struggle between Parliament and the judiciary over the scope of constitutional amendment.

2. The 2025 Presidential reference: The second confrontation involving the President, Governors and the judiciary over delays in granting assent to bills.

In both episodes, the Constitution itself was the battlefield, the subject, and ultimately the victorious. These judgments reaffirm the principle that institutions are powerful only within the limits that have been prescribed by the Constitution.

The first battle (1973): Kesavananda Bharati and the birth of the basic structure doctrine

The 1960s and early 1970s witnessed a catena of constitutional amendments that aimed to insulate legislative and executive actions from judicial review. Parliament, under the leadership of Indira Gandhi, asserted the doctrine of parliamentary sovereignty, claiming thereby the unlimited amending power under Article 368.

The Supreme Court, however, pushed back. The largest Bench in the Indian judicial history, the thirteen-Judges Constitution Bench in Kesavananda Bharati v. State of Kerala³ delivered a narrow majority judgment in 7—6 ratio, affirming:

1. Parliament has wide amending power.

2. But this power cannot alter or destroy the basic structure of the Constitution.

This judgment has given birth to the iconic doctrine of basic structure that safeguarded the essential constitutional values such as:

1. democracy,

2. judicial review,

3. federalism,

4. secularism, and

5. separation of powers.

In this first institutional collision, the victory favoured the Constitution. Parliament’s claim to near unlimited authority was denied not by judicial supremacy, but by the text and spirit of the Constitution itself. As scholars such as T.R. Andhyarujina have argued, the verdict represented “a triumph of constitutionalism over transient political majorities”. ⁴

The second battle (2025): Supreme Court on assent, timelines, and deemed sanction

After more than, five decades, the Constitution‘s structural design was again tested but this time involving the President, Governors and the Supreme Court.

In light of raising differences between several State Governments (Tamil Nadu, Kerala, Punjab, West Bengal) and their respective Governors triggered fundamental questions:

1. Can a Governor indefinitely sit on a Bill?

2. Can courts impose timelines for assent?

3. Is there a doctrine of deemed assent if the Governor fails to act?

4. Can courts substitute the Governor’s constitutional role?

Amid rising constitutional uncertainty, the President of India invoked Article 143, knocking the doors of the Supreme Court seeking its opinion.

No judicially imposed timelines

The Supreme Court has categorically held that neither the President nor a Governor can be bound by timelines prescribed by the courts, for granting assent under Articles 200 and 201.⁵

The Constitution, in fact, provides elasticity, thereby enabling constitutional authorities to act as per the letter and spirit rather than mechanically. Imposing judicial deadlines would constitute an ultra vires of the Constitution.

No concept of “deemed assent”

One of the significant takeaways from the judgment is that there can be no notion of deemed assent.

The Court held that judicially declaring deemed assent would:

1. constitute a clear usurpation of executive functions by the judiciary,

2. violate separation of powers, and

3. be against the spirit of Articles 200 and 201.⁶

Thus, the Court refused to allow constitutional silence to be filled by judicial innovation.

Limited judicial review: Courts cannot review merits, but can prevent executive paralysis

Although the decision-making of the President and Governors is non-justiciable, the Court has categorically clarified that their inaction is subject to judicial review.

If a Governor:

1. indefinitely withholds a Bill,

2. engages in unexplained delay, or

3. obstructs the legislative process,

then the Court may issue a limited mandamus directing the Governor to decide within a reasonable time, without dictating the outcome.⁷

This is another significant finding that strikes a balance between constitutional supremacy and constitutional accountability.

Governor must return the bill if withholding assent

The Court has also emphasised that withholding assent is not an independent option. Under the first proviso to Article 200, withholding assent necessarily requires the Bill to be returned to the legislature.⁸

This reading protects federalism and prevents gubernatorial obstruction through “pocket vetoes.”

Two battles, one Constitution: comparative analysis

Though separated by 52 years, the 1973 and 2025 episodes share remarkable similarities.

The constitutional confrontations of 1973 and 2025, though separated by five decades, unearth a striking structural continuity. The 1973 conflict in Kesavananda Bharati reflected a direct clash between Parliament and the judiciary, with Parliament asserting an absolute amending power under Article 368. In contrast, the 2025 dispute involved the President and Governors vis-à-vis the judiciary, concerning the questions of timelines for assent, gubernatorial inaction, and the rejected concept of deemed assent. In both these conflicts, the Supreme Court played its true guardian role to preserve constitutional framework first by protecting the basic structure doctrine against majoritarian excess, and later by safeguarding constitutional design and the separation of powers against executive delay capable of crippling federalism. Despite differing institutional actors and contexts, the outcome remained the same: The Constitution prevailed over attempts to distort or overstep its carefully crafted framework.

Both judgments reaffirm that:

1. No institution can claim supremacy over the Constitution.

2. Judicial review exists to protect constitutional structure, not to assume powers of other organs or usurp its powers.

3. Constitutional morality remains central to democratic governance.

Conclusion

The two of the greatest constitutional battles of 1973 and 2025 highlight one truth: India’s democracy survives not because any one institution triumphs, but because the Constitution triumphs over all institutions.

In Kesavananda Bharati, the Constitution resisted the excesses of a powerful Parliament. In the 2025 presidential reference, it restrained a tempting judicial overreach into executive territory.

Both times, the Supreme Court acted not as a competitor institution but as the Constitution‘s faithful sentinel choosing restraint when needed, intervention when warranted, and always fidelity to the constitutional morality.

Ultimately, the Constitution remains the supreme guardian of India’s democratic order. And as both these episodes prove, when institutions clash, the Constitution wins and reminds that it is Supreme.