50 Interesting Facts In And Around Kesavananda Bharti Case

The majority Judgement by 7 judges of the 13 Judge bench overruled the 11 judge bench decision in the matter of L C Golaknath Vs. State of Punjab^[2], upheld the validity of the 24^th, 25^th and 29^th Constitutional Amendment, except the last part of Art 31-C which was declared as invalid, but it laid down the famous Doctrine of Basic Structure by which the Parliaments power to amend any part of the Constitution was curtailed as it held that the amendment to the Constitution cannot alter the essential features or the Basic Structure of the Constitution. The Basic Structure doctrine is a watershed moment in the history of the supreme Court of this country. The battle between the supremacy of the Parliament as claimed by the Government vis-a-vis the supremacy of the Constitution as interpreted by the Supreme Court had reached its ultimate moment and a fine balance was carved out by the majority in the Kesavananda Bharti Judgment.

The brief Background for the Kesavanda Bharti Judgment are the Constitutional Amendments that were cleared by the Parliament from 1964 to 1972 and certain earlier Judgments of the Supreme Court because of which the Parliament had brought the Constitutional Amendments. The validity of the 17^th Constitutional Amendment, 1964 was challenged in the matter of Sajjan Singh Vs State of Rajasthan^[3], wherein the Majority followed the earlier judgment of Shankari Prasad Singh Deo Vs. UOI^[4], which had upheld the validity of the 1^st Constitutional Amendment Act, 1951 by holding that the Power of the Parliament was not restricted, and it Could amend any part of the Constitution. However later in 1967 in the Judgment of L C Golaknath Vs State of Punjab, the majority took a diagonally opposite view and held that the Parliament cannot amend Part III of the Constitution. Despite of the said Judgment Parliament had cleared various Constitutional Amendments from 1971 to 1972 which in Nani Palkhivalas words Defaced and Defiled the Constitution.

24^TH CONSTITUTIONAL AMENDMENT, 1971:

The 24th Constitutional Amendment Act, 1971, was passed specifically to overrule Golaknath Judgment delivered by 11 Judges wherein 6 Judges in their Majority Judgment held that the Word "Law" under Art 13(2) would include Constitutional Amendment thereby if the Constitutional Amendment was inconsistent or abridged Fundamental Rights, to that extent the Constitutional Amendment would be declared to be void. Therefore, the Parliaments Power to amend Part III of the Constitution was curtailed by the said Judgment which was a big blow to the Government as it thought that it would come in the way of implementing the Socio-Economic Policies of that time. Therefore, the Parliament by way of the said Amendment, inserted Art 13(4) and Art 368(3) into the Constitution to nullify the Golaknath Judgment.

The Statement of Object & Reason of 24^th Constitutional Amendment, 1971 provided that:

"It is considered necessary to provide expressly that Parliament has power to amend any provision of the Constitution so as to include the provisions of Part III within the scope of the amending power."

It inserted Article 13(4) which provides:

"(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.".

It inserted Article 368(2) which provides:

"(3) Nothing in article 13 shall apply to any amendment made under this article.".

So by these two lines in Art 13 and Art 368, the majority Judgment of the Supreme Court delivered in the matter of L C Golaknath came to be nullified.

25^TH CONSTITUTIONAL AMENDMENT, 1971:

The 25^th Constitutional Amendment Act, 1971 was moved to overrule the ratio of the Bank Nationalization Judgment. In the Bank Nationalization case^[5], the Supreme Court had held that the Constitution guarantees right to compensation, that is, the equivalent in money of the property compulsorily acquired. It interpreted the Word Compensation in Art 31(2) to mean just and equivalent compensation and not illusory or arbitrary compensation.

The Statement of Object and Reason of the 25^th Constitutional Amendment, 1971 provided:

"The Bill seeks to surmount the difficulties placed in the way of giving effect to the Directive Principles of State Policy by the aforesaid interpretation. The word "compensation" is sought to be omitted from article 31(2) and replaced by the word "amount"."

So the Parliament by replacing the word 'Compensation' with the Word 'amount' did away with the obligation of making just and equitable payment of compensation to the persons whose properties were to be acquired.

Another controversy was with regards to insertion of Article 31C, which provides:

"31C. Saving of laws giving effect to certain directive principles. -

Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31, [and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy]:"

According to Nani Palkhivala this clause has features of Totalitarianism. Article 31C purports to save laws which the State may make towards securing the Directive Principles of State Policy from being challenged on the ground that it is inconsistent with or takes away rights conferred under Article 14, 19 or 31. In effect, Art 31C enables the State to adopt any policy they like and abrogate Art 14, 19 and 31 of the Constitution at will. If the Law contains a declaration that it is for giving effect to the Directive Principles of State Policy, it cannot be called in question before any court on the ground that it does not give effect to such policy. It denies any Court power or jurisdiction to go into this question. The Majority in Kesavanda Bharti declared the bracketed (last part) portion of Art 31C to be invalid.

26^TH CONSTITUTIONAL AMENDMENT, 1971:

The 26^th Constitutional Amendment Act, 1971, was passed to overrule the Privy Purse Judgment^[6], wherein the Supreme Court had declared the De-recognition of Rulers by Presidential Orders to be unconstitutional and beyond the Powers of the President. The Majority had held that Art 291 providing Tax Free Privy Purse to the Princely Rulers was a Solemn Constitutional Guarantee.

The Bill was introduced by Smt Indira Gandhi and the Statement of Objects and Reason of the said Amendment provided:

"The concept of Rulership, with privy purses and special privileges unrelated to any current functions and social purposes, is incompatible with an egalitarian social order. Government have, therefore, decided to terminate the privy purses and privileges of the Rulers of former Indian States."

By way of the said Amendment the Provisions regarding Privy Purse I.e. Art 291 and 362 were Omitted from the Constitution. It further inserted Art 363A which provides that the Recognition granted to Rulers of Indian States ceases and Privy Purse is abolished.

29^TH CONSTITUTIONAL AMENDMENT, 1971:

It is because of the 29^th Constitutional Amendment, 1972 that His Holiness Kesavananda Bharti had to file a Petition under Art 32 of the Constitution challenging the validity of the said Amendment as the property of his Muth were to be acquired under the Amended Kerala Land Reforms Act, 1963 .

The 29^th Constitutional Amendment inserted Kerala Land Reforms (Amendment) Act, 1969 and (Amendment) Act 1971 into the 9^th Schedule despite Supreme Court upholding the High Court Judgment invalidating certain crucial provisions. So Provisions of the Act which were ultra-vires the Constitution came to be saved by inserting the said Act under the 9^th Schedule as it got the protection of Art 31B. This Act of the Parliament was challenged by His Holiness Kesavanada Bharti in his petition.

The core question apart from the validity of the 24^th, 25^th, 26^th and 29^th Constitutional Amendments in said case was:

Did the Parliament have unlimited power to amend the constitution or are there any implied Limitations on such amending power?

Apart from the core question with regards to the nature, extent and scope of the amending power and other legal aspects, there were also involved Political Motives and subtle attempts at interference with Judicial Independence. As one of the Judge who decided that case puts it, "this case was full of excitement and unusual happenings."^[7]
There are several interesting facts and unusual happenings in and around the said case which are compiled from various sources and are as follows:

1. The Judgment was delivered on 24^th April, 1973 on the day Chief Justice S. M. Sikri Retired.
2. One and only case to be decided by 13 Judges of the Supreme Court of India.
3. Largest Bench hearing the Lengthiest arguments which lasted for 68 days spanning over 5 months, covering the widest areas of law and legal literature resulting into 703 page judgment with 11 scholarly opinions.
4. Arguments began on 31^st October, 1972 and ended on 22^nd March, 1973^[8].
5. Right at the start it was made clear that the 13 Judges were convinced to overrule the L C Golaknath judgment^[9].
6. The Supreme Court by razor thin majority of 7:6 for the first time in any Constitutional Adjudication in the world propounded the doctrine of Basic Structure- the power of the Parliament to amend the Constitution is not unlimited and that the Parliament cannot amend the Basic Structure of the Constitution. Later on Malaysian Courts and recently the Kenya High Court adopted the said doctrine.
7. Two Retired Supreme Court Judges, Justice I. D. Dua and Justice C. A. Vaidialingam were appointed as Ad Hoc Judges to handle the Court Business during that time when remaining 13 Judges were hearing the Kesavanada Case^[10].
8. The Constitutional Amendment can be struck down on the ground of violation of Basic Structure was unknown to Comparative Constitutional Law.
9. The Majority Judgment was delivered by Chief Justice S. M. Sikri, Justice J. M Shelat, Justice Grover, Justice K. S. Hegde, Justice Mukherjee, Justice P Jaganmohan Reddy, Justice H R Khanna. The Minority opinion was delivered by Justice A N Ray, Justice Mathews, Justice Beg, Justice Dwivedi, Justice Palekar and Justice Y V Chandrachud.
10. There was no Unanimity on what constituted the Basic Structure of the Constitution despite 11 opinions.
11. The Judgment was heavily criticized by the Government as being ambiguous and incoherent and an attack on the Supremacy of the Parliament.
12. The Judgment is considered most remarkable in the Development of the Constitutional law as it saved Democracy and prevented India from degenerating into a totalitarian regime or a one party Government.
13. Nani Palkhivala was the lead counsel for the petitioners who along with counsels for the petitioners argued for 31 days. H M Seervai who appeared for the State of Kerala, argued for 21 days followed by Niren De^[11].
14. Though Niren De was the Attorney General of India and H M Seervai the Advocate General for the State of Maharashtra, Seervai appeared and argued for the State of Kerala and opened the arguments for the Respondents which was unprecedented as the Attorney General had the First Rights of Audience. Attorney General Niren De was not happy and had complained to the Prime Minister^[12].
15. This case showcases the Breathtaking scholarship of the 13 Judges as well as the lawyers who represented both the sides. Analysis of the Provisions of more than 71 Constitutions of Different Countries were submitted by the Counsels.
16. Counsels referred to decisions of various Jurisdictions like USA, England, Canada, Australia, Ireland, Ceylon. References were made to various Text Books on Constitutional law, other Legal Subjects and also on Political Science, Economics and History.
17. The case was almost to be reheard as In Feb and March, 1973 Justice Beg was hospitalized due to illness and if J Beg did not recover Chief Justice Sikri would retire on 24^th April, 1973. Suggestions were made to hear in the absence of J Beg which was objected by the Attorney General Niren De and H M Seervai^[13].
18. Justice Beg did recover however the arguments were cut short and written arguments were to be submitted by the Counsels.
19. Though Nani Palkhivala appeared for His Holiness Kesavanda Bharti who was the head of a Math in Kerala, he never met or even spoke with Nani Palkhivala. Kesavanda Bharti was quite surprised why his name was appearing in the papers everyday and why the case was taking so much time^[14].
20. Entire litigation was funded by Coal, Mining and Sugar Companies who were also petitioners along with Kesavananda Bharti^[15].
21. The Theory of Basic Structure was not supported by any precedent or judgment of any Court. The said theory was the Brainchild of a German Scholar Prof. Deitrich Conrad who had propounded the theory of Implied Limitation based on the experience of Germany and the misuse of the Weimar Constitution by Adolf Hitler.
22. Adolf Hitler was appointed as the Chancellor of Germany and he undermined the Republic and the Weimar Constitution and seized absolute dictatorial powers through the amendment process of the German Constitution.
23. Before this Judgment, the Basic Feature theory was first introduced by Justice Mudholkar in his Minority Opinion in the Judgment of Sajjan Singh Vs State of Rajasthan^[16]. He referred to the Doctrine of Essential Features of the Constitution derived from the Pakistan Supreme Court judgment in the matter of Fazlul Quader Chowdhary Vs Mohd Abdul Haque^[17].
24. Unusual Happenings:
25. Mr. Niren De the Attorney General threatened that the Courts future would be at stake and the consequences have to be borne in mind if the decision went against the Government^[18].
26. Justice Jaganmohan Reddy remarked in his Autobiography- The Judiciary I Served, that "the Attacks on the Court were often vicious and showed the venom and pique which these persons had against the Judges"^[19].
27. Justice Jaganmohan Reddy states that "It was generally assumed and alleged that the manipulation by the Government in the appointment of judges was to obtain persons whose philosophy was intended to accord with the Governments philosophy or its commitment". He further observes "that the attempt to pack the court with the judges whose views are in accord with the view of those who appoint them are not always successful which was proved in this Case.^[20]"
28. Justice Jaganmohan Reddy observes that "What was put to test in the case was the role and the attitude of the judiciary and the judicial process in achieving social justice under the Constitution."
29. Justice Reddy observed in his autobiography that "I got the impression throughout that minds were closed and views were predetermined"^[21].
30. Justice Reddy in his Judgment has mentioned "we should free ourselves of any considerations which tend to create pressure on the mind. In our view it is not the gloom that should influence us, as Milton said, we cannot leave the real world for a utopia but instead ordain wisely and if I may add, according to the well accepted rules of construction and on a true interpretation of the constitutional provisions^[22]."
31. In the said case the Bench worked under continuous and sometimes intense pressure as pointed out by Granville Austin in his Book Working a Democratic Constitution. He observes that Intense pressure came directly from the Government to assure a favourable Ruling from the Court^[23].
32. Another Unique feature of the Judgment is that on 24^th April, 1973 when the Judgment was delivered the majority also delivered the Summary/Statement of what was held by the Majority. It was a Controversial Summary as 4 judges refused to sign the summary. Justice A N Ray, Justice Mathew, Justice Beg And Justice Dwivedi refused to sign the summary.
33. Later Justice Chandrachud in Minerva Mills Case held that "Whether the Summary is a legitimate part of the judgment or not……it is undeniable that it correctly reflects the majority view."^[24]
34. Justice Reddy and Granville Austin Mentions that the drafts of the judgment before it were delivered had reached the Government. The Government was aware that the 3 most Senior Judges were against the Government and therefore on 25^th April, 1973 the Government announced that J A. N. Ray had been appointed as the Chief Justice of India^[25].
35. 3 Senior most judges, Justice Shelat, Justice Hegde and Justice Grover had been bypassed for the first time and Justice A. N. Ray came to be appointed as the Chief Justice of India. Justice Khanna states that this was a Grievous blow to the independence of the Judiciary. In his view the "Supersession was a punishment or show of governments displeasure at the judges not having towed the Government's line in the Kesasvananda Decision."^[26]
36. Earlier there was an attempt to supersede Justice J. C. Shah who had given the majority judgment in R. C. Cooper and Privy Purse case, at that time all remaining Judges threatened to resign in the event of Supersession except one who was Justice A. N. Ray^[27].
37. Granville Austin mentions that the Supreme Court had risen to the occasion but what a bizzare fashion to save the Constitution.
38. Smt. Indira Gandhi in her speech in the Parliament had said "We do not accept the dogma of Basic Structure"^[28].

• Attempt to Review the Kesavanda Bharti Judgment during the peak of Emergency:

8. Getting Kesavanda Judgment reversed seemed to be the priority for Chief Justice Ray^[29].
9. During Emergency on 20-10-1975 Chief Justice Ray issued a written order "that the Court would hear arguments on 10-11-1975 on two matters:

i Whether or not the basic structure doctrine restricted Parliament's power to amend the Constitution.

ii Whether or not Bank Nationalisation case had been correctly decided."^[30]

1. There was no written application or a Review Petition filed before the Supreme Court and the Supreme Court does not hear Review Petitions in Open Court.
2. Following the order of the Chief Justice on 10-11-1975 a Bench of 13 Judges commenced hearing of the review of Kesavananda Bharati case.
3. On 12-11-1975 the Bench assembled to a packed Court for resumption of the arguments. Hardly had the 13 Judges taken their seats when to the surprise of all the Chief Justice stated "This Bench is dissolved".
4. T R Andhyarujina who had assisted H M Seervai in the said case observes in his Article that "From all accounts it does appear that the Chief Justice felt uncomfortable at the doubts expressed by some of his colleagues and the manner in which he had ordered the review. But however wrongly the review was ordered it was even more wrong to dissolve a Bench without any reason in the manner the Chief Justice did.^[31]"
5. During the hearing at one point, somebody asked who constituted this bench? Chief Justice Ray looked at Palkhivala and said, "you did." Palkhivala responded with an emphatic "no, stating why would he challenge a decision in his favour". Justice Ray then stated that the State of Tamil Nadu had asked for a review, to which the Advocate General of the State responded "that the state stands by the judgment". Similar was the response from the Advocate General of the State of Gujarat Mr J M Thakore^[32].
6. Nani Palkhivala during his arguments remarked that "if I say anything about the recent Amendments in Public, I shall probably be arrested. In fact, the only place where there is any freedom of Speech in this country is the few hundred square feet of various courtrooms". Justice Krishna Iyer replied: "You should thank the Court for this."^[33]
7. On the third day of the hearing, Chief Justice Ray came to the Court room and simply announced 'Bench Dissolved' and walked out.
8. Post his resignation, Justice H.R. Khanna (a member of the Bench in Kesavananda Review) praised Nani's advocacy in Kesavananda Review case and remarked 'It was not Nani who spoke. 'It was divinity speaking through him'.
9. J Khanna and other Judges were of the view that the heights of eloquence and advocacy reached on these two days were really 'unparalleled and that palkhivalas feat would perhaps never be equalled in the Supreme Court.'
10. Later Even H M Seervai admitted that Basic Structure theory preserved Indian Democracy.
11. After Kesavanada Bharti Judgment, the Supreme Court has till date declared 6 Constitutional Amendments to be invalid on the ground of being violative of the Basic Structure of the Constitution:
12. Indira Gandhi Vs Raj Narain^[34], struck down Art 329-A(4) which came to be inserted by the 39^th Constitutional Amendment, 1975, on the ground that it violated Free and Fair Elections, which is a Basic Feature of the Constitution.
13. Minerva Mills Vs. UOI^[35], struck down Art 368(4) & (5) which were inserted by the 42^nd Constitutional Amendment, 1976, on the ground that it took away the powers of Judicial Review which is a Basic Feature of the Constitution.
14. P. Sambamurthy Vs. State of A.P^[36], struck down Art 371-D(5) which was inserted by the 32^nd Constitutional Amendment, 1973, on the ground that it took away the powers of Judicial Review which is a Basic Feature of the Constitution.
15. Kihoto Hollohan Vs. Zachilhu^[37], struck down Para 7 of the 10^th Schedule which was inserted by the 52^nd Constitutional Amendment, 1985, on the ground that it took away the powers of Judicial Review as well as on the ground that the Procedure under the proviso to Art 368 was not followed.
16. L Chandra Kumar Vs. UOI^[38], struck down Art 323-A Clause (2)(d) and Art 323-B Clause (3)(d), which were inserted by the 42^nd Constitutional Amendment, 1976, on the ground that it took away the powers of Judicial Review which is a Basic Feature of the Constitution.
17. Supreme Court Advocates on Record Association Vs. UOI^[39], struck down Art 124 (as amended), Art 124-A to C, Art 127, 128, 217, 222, 224, 224-A and 231, which were inserted by the 99^th Constitutional Amendment, 2014, on the ground that violated the Independence of Judiciary, which is a Basic Feature of the Constitution.

• Important Lessons from this Judgment:

1) Majority Governments cannot be completely trusted and it is important to have a formidable opposition.

2) Powerful Central Government can become a tyrant if there are no institutions of checks and balances.

3) Courageous Judges must sacrifice but they win the hearts of millions of people are remembered for their bold decisions.

4) Hard work and Industry of a Lawyer along with great judges have saved the Democracy in India.

5) Supreme Court has proved to be the greatest upholder of the Constitutional values and the liberties of the Citizens.

6) Indians must thank Kesavanda Bharti, the 7 Judges forming the majority and Nani Palkhivala, as because of their efforts India is today worlds largest Democracy.

Views are personal

The Author is an Advocate at the Gujarat High Court.