Kesavananda Bharati (1973) is the greatest constitutional case in India’s judicial history. It is believed to have held, by a supposed majority of seven to six, that the power of Parliament to amend the Constitution did not extend to altering its “basic structure”. The “basic structure” doctrine has now become a tenet of our constitutional law.
A very small minority, including the reviewer, 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 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 Golak Nath (1967).
In this riveting little work, former solicitor-general T.R. Andhyarujina tells the inside story of Kesavananda Bharati. Andhyarujina appeared in the case with his senior, the legendary H.M. Seervai, on the government’s side. He maintained a diary during the 66 days of hearings, which he draws upon. He also relies upon the memoirs of some of the judges in the case, and his own interviews with some of them.
The big fight was anticipated. Major amendments to the Constitution (the 24th, 25th, 26th and 29th) had been enacted by Indira Gandhi’s government through Parliament to get over the judgments of the Supreme Court in R.C. Cooper (1970), Madhavrao Scindia (1970) and Golak Nath. The first had struck down bank nationalisation, the second had annulled the abolition of privy purses of former rulers and the third had held that the amending power could not touch Fundamental Rights. All these amendments were under challenge in Kesavananda. Since Golak Nath was decided by eleven judges, a larger Bench was required to test its correctness. And so, 13 judges were to sit on the Kesavananda Bench.
The author details the court-packing exercise which the Indira Gandhi government undertook, to ensure that the “right” kind of judges were appointed. This task was undertaken by a committee consisting of Mohan Kumaramangalam, H.R. Gokhale and S.S. Ray. This “balancing” was considered necessary, because some judges who had decided against the government in those earlier cases were also going to sit on the Bench, and they were expected to strike down the amendments.
Nearly four decades after the case, you can relive those great tensions on the Bench, between the “pro” and “anti” judges (the reviewer had the good fortune to attend the hearings, as a law student). And the constant friction between the petitioners’ counsel Nani Palkhivala, and the government’s counsel Seervai and Attorney-General Niren De.
Andhyarujina says the tensions in the case arose because the contest was essentially a political one, though cloaked in legal garb. And this affected the attitudes of some of the judges who were parties to the majority decisions in the cases that were being re-considered. From the outset, they had firm views on limiting Parliament’s power to amend Fundamental Rights. On the other hand, the “pro-Parliament” judges expressed themselves equally strongly, and these pre-determined views created a visible division among the judges. Justice Dwivedi had openly said in Allahabad, on his elevation to the Supreme Court, that he was going to Delhi to get Golak Nath overruled. On the Kesavananda Bench, he made a startling political remark to Palkhivala: “Are you prepared to say that the Fundamental Right to property can be amended? If so, I am prepared to procure from Parliament that all other Fundamental Rights can be left unamended.” This remark, the author recounts, “caused a visible protest from Chief Justice Sikri… Thereafter, the petitioners’ side considered it useless to address Justice Dwivedi.”
One of the important revelations in the book is the move to exclude Justice Beg from the Bench because of his illness. Chief Justice Sikri was retiring, and judgments had to be delivered before that. Without Justice Beg, the government risked losing a majority in a sharply divided Bench. As Andhyarujina describes a heated chamber conference between judges and counsel, one can almost hear the very angrez Attorney-General say in his sonorous voice that if Beg was dropped, he had instructions to withdraw from the case. Seervai supported him. A petulant Justice K.S. Hegde said sotto voce to the Chief Justice that the next time, counsel “will threaten us if we don’t write the judgment they want”. Ultimately, a compromise was worked out. Hearings were closed, written submissions were taken and the case proceeded to judgment, with Justice Beg participating.
The way the “majority view” was pronounced is revealing. There was nothing in common between six judges who held that there were implied limitations on the amending power, and Justice Khanna’s view that the word “amendment” meant that the original could not be completely abrogated. Justice Khanna had, in fact, expressly rejected the theory of implied limitations. Chief Justice Sikri adopted a “stratagem”, says the author. After the eleven judgments were pronounced, he produced a paper purporting to summarise the majority view. One of the propositions on that paper read “Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution”. This was lifted from Justice Khanna’s conclusions. Nine judges signed. Four grimly refused, passing the paper on. Thus was the doctrine born!
Courtesy: Indian Express