Kesavananda Bharati Judgment Paved Way For Economic & Social Justice : Justice BR Gavai

Justice Bhushan Ramkrishna Gavai, judge of the Supreme Court, recently delivered a keynote address at the National University of Study and Research in Law (NUSRL), Ranchi, during the 'Justice S.B. Sinha Memorial Lecture, commemorating the Golden Jubilee of the landmark case "Kesavananda Bharati vs. State of Kerala."

The program began with a solemn tribute by Justice Rongon Mukhopadhyay of the Jharkhand High Court, followed by the ceremonial lighting of the lamp. The Vice-Chancellor of NUSRL, Dr. Ashok R. Patil, welcomed the distinguished guests, including high court judges and the family of the late Justice Sinha.

Justice Sinha's wife, Utpala Sinha, and his sons, Abhijit and Indrajit Sinha, were present at the event, underscoring the personal and professional respect that the legal community continues to hold for Justice Sinha.

Kesavananda Bharati case greatest milestone in the constitutional journey of India

Justice Gavai in his address highlighted the significance of the Kesavananda Bharati vs. State of Kerala–case which celebrated its golden jubilee last year, calling it the "greatest milestone in the constitutional journey of the country". 

"It would be befitting his memory that we try to pay our tribute to authors of Kesavananda Bharati which even after 50 years of laying down thereof...is the most important judgment that this country will cherish," the judge said. 

On the history of the framing of the Indian Constitution and amendments made prior to 1973 Justice Gavai said that the constituent assembly comprised of people from various walks of life, including people belonging to different ideologies.

"For a country like India which has vast diversities-geographical, social, it was difficult to chart out a Constitution suitable for one and all. By a herculean task, deep labour put in for a period of more than 2 and a half years we adopted our constitution on November 26, 1949 and brought into effect on January 26, 1950," he said.  

Justice Gavai thereafter explained the constitutional history–right from its enactment, the amendments made, as well as the cases challenging the same resulting in judgments, leading up to Kesavananda Bharati, regarding challenging to the Kerala Land Reforms Act. 

"13 judges bench heard the matter a long time and then the bench was virtually split. The basic argument was regard to amending power of constitution.Six judges under the leadership of Chief Justice Sikri and five others held that the parliament's powers to amend the Constitution were not unlimited there were inherent limitations in the power of the parliament to amend the Constitution. The parliament had no right to abridge or take away or abrogate any of the fundamental rights by the amendment to the Constitution. However Justice AN Ray and five others took a view that powers of the parliament to amend the Constitution were unlimited there were no limitations on the amending power of the Constitution and the Parliament also had had a power to amend the Constitution which abridges takes away or abrogates the fundamental rights of the citizens. However it is the view of Justice H R Khanna which partly supported view of Justice Sikri and partly supported the view Justice AN Ray and others which is now the view of Kesavanada Bharati," Justice Gavai said. 

Speaking on Justice Khanna's view, Justice Gavai said, "Justice Khanna held that the term Amendment postulated that the parliament has no power to Tinker with the basic structure of the Constitution it cannot amend the parliament so that it takes away the basic structure of the Constitution but however he held that the fundamental rights were not the part of the basic structure of the Constitution and the Parliament also had a power to amend the Constitution in a manner that it takes away the fundamental rights of the citizens. It was held that the power under article 368 was not controlled by Clause 2 of Article 13 and it is this view of the Kesavananda Bharati which still holds Good even after the Journey of 50 years and 75 years of our constitution. Though Kesavananda Bharati did not specify as to what shall be the basic structure of the Constitution because it will all depend upon the circumstances and facts it culled down various factors or various issues which could be considered to be a part of the basic structure". 

Some of these, Justice Gavai highlighted–as culled out in the various judgments of the case as there were various judgments authored by the various judges– are, supremacy of the Constitution, the secular nature of the Constitution, separation of executive, legislature and judiciary, maintaining unity and integrity of the nation, securing the dignity of the individual, building an egalitarian society and parliamentary democracy. 

He further said that in this case the Supreme Court had clearly held that "fundamental rights and directive principles together are the soul of the Constitution". 

"It held that fundamental rights though provide the basic human rights to the human being to live a life with dignity the direct principles are a vehicle to bring in the social revolution for bringing out economic and social justice in this country. It was held that the fundamental rights and the directive principles are not parallel to each other but they intersect each other at points," Justice Gavai emphasized. 

Justice Gavai further said that post 1973 India had made advancements in terms of social and economic justice. "We find that relying on the Trinity of articles 14 19 and 21 the Supreme Court and the various High courts have evolved various rights which the framers of the Constitution could not have been could not have conceptualized at the inception of the Constitution," he said. 

How Kesavananda Bharati served as guiding factor to achieve social and economic justice

Reflecting on the past fifty years since the Kesavananda Bharati judgment, Justice Gavai noted that the case has not only served as a guiding factor in determining how the basic structure of the Constitution must be preserved, but it has also illuminated the path towards achieving the social and economic justice envisioned in the Constitution's Preamble.

He remarked, "We find that in last 50 years the Kesavananda Bharati has not only been a guiding factor as to what manner the basic structure of the Constitution has to be maintained, as to how the Parliament and the executive should not be permitted to Tinker with the basic structure of the Constitution but the Kesavananda Bharati has also paved a way towards the social and economic justice that the constitution promises in its very Preamble."

He further invoked the vision of Dr. B.R. Ambedkar, who had recognized the historical deprivation faced by women and the efforts of social reformers like Mahatma Phule and Savitribai Phule in promoting women's education. Justice Gavai observed that the strides made in this area are evident in the fact that India has seen a woman serve as Prime Minister, a woman from a scheduled tribe as a President, and other significant positions of power held by individuals from scheduled castes and tribes.

India's progress in social and economic justice

Continuing his address on the progress in social and economic justice, Justice Gavai drew comparisons between India and its neighbouring countries, highlighting India's resilience in maintaining unity and stability despite numerous challenges.

"We have been witness to what has happened in Pakistan on so many occasions we have seen what has happened in Sri Lanka we have seen what has happened in Nepal and we have seen earlier what had happened in Bangladesh and we are seeing again now as to what is happening in Bangladesh," the judge said.  

"Dr Ambedkar was criticised that the Constitution tilts towards unitary nature and there is a less importance given to the states. While presenting the final draft to the consent assembly in his speech he stated that the constitution is both federal as well as unitary; but the Constitution is such that it will keep the country united at the times of peace and also at the time of war and we see how prophetic his words have come true in spite of so many differences so many difficulties faced in the neighbouring country, our country has been successful in remaining united, remaining strong at the time of War and Peace," the judge added. 

Justice Gavai in his speech acknowledged the immense contribution of the Kesavananda Bharati case to the twin objectives of national unity and social and economic justice.

He urged for pledging adherence to constitutional principles, maintaining the unity and dignity of the country while upholding the dignity of its citizens. He stressed that true tribute to Justice S.B. Sinha and the legacy of the Kesavananda Bharati case lies in embodying the constitutional values and schemes in our daily lives.

On Justice Sinha's legacy and contribution to various branches of law

Reflecting on Justice Sinha's legacy, Justice Gavai expressed deep admiration for Justice Sinha's work ethic, dedication, and contributions to various branches of law. He recounted personal experiences with Justice Sinha, portraying him as a role model who was not only a towering figure in the judiciary but also a mentor to younger judges.

Justice Gavai said, “A workaholic in true sense he. He contributed to every branch of law be it constitutional, criminal arbitration, commercial. The story is that till midnight he used to have two-three stenographers at a time and dictate two- three judgments simultaneously. I have seen that he was a very frugal eater. He used to eat in very small quantities and I think that he hardly slept. For him, work was worship and even after his retirement as a judge of the Supreme Court, he contributed his service to the nation as the chairman of the TDSAT. After serving there for 3 years he entered the arbitration and as was told by one of the faculty members in arbitration also he contributed immensely in very very important arbitrations,” Justice Gavai shared.

Justice Gavai further said that wherever Justice Sinha went he is always remember fondly; that despite his achievements the late judge remained polite, humble to the core.

Justice Gavai also highlighted Justice Sinha's impact on the development of Indian jurisprudence, particularly during his tenure as a judge from 2002 to 2009. He noted that Justice Sinha's judgments were frequently published in law journals, demonstrating his influence across a wide range of legal fields, including constitutional, criminal, arbitration, and commercial law. Justice Gavai praised Justice Sinha's approach to commercial law, particularly his advocacy for the business efficacy theory, which favored pragmatic interpretations that supported fair play in business operations.

On Justice Sinha's balanced approach to capital punishment and life imprisonment

One of Justice Sinha's most notable contributions, as highlighted by Justice Gavai, was his development of a balanced approach to capital punishment and life imprisonment.

Justice Gavai also shared, “His greatest contribution would be in resolving a conflict between capital punishment and life imprisonment which earlier meant to be imprisonment for say around 14 years. He evolved a middle path which was that there has to be a balance between capital punishment and life punishment which would mean that a punishment for 14 years and thereafter a person entitled to remission. He expounded the law laid down in Bachhan Singh and held that it's not every case which can be held to be a rarest of the rare cases and therefore the penalty should only be the death penalty. He found a middle path wherein he said that the punishment somewhere between the life imprisonment of 14 years and the death penalty should be balanced out and therefore we see from various cases like Santosh Bariyar and Swamy Shraddananda versus state of Karnataka wherein the court has found out the middle path and rather than imposing a death penalty has found that a penalty for the life entire remainder of the life or in some cases 30 years some cases 25 years some cases 20 years would be 20 years without remission would be an adequate punishment as a replacement for death penalty,” he added.

Justice Gavai further said, “He laid down various principles taking a cue from Bachhan Singh that various factors will have to be taken into consideration while finding out the middle path between the death penalty and the life imprisonment of 14 years. One of them was as to whether the possibility of reformation of such a person if he is not made liable for the death penalty was there or not. He also laid down certain guidelines to find out as to what should be the factors for drawing a balance sheet of mitigating circumstances and the aggravating circumstances.”

Justice Gavai further acknowledged Justice Sinha's influence on his own judicial decisions, particularly in death reference cases. He shared that while presiding over death references cases in the last two and a half years in almost all the cases, he had while relying on Justice Sinha's judgment in Swamy Shraddananda versus state of Karnataka commuted the death penalty to either 30 years, 25 years or  20 years, and also in "two or three matters" where it was found that the "high courts and the trial courts had convicted the accused when there was no evidence" and acquitted them.

Justice Gavai expressed a sense of pride at being at the ceremony–an "auspicious occasion" to commemorate the memory of Justice Sinha, whom he regarded as not only a "great jurist", an "erudite author" but above all a great human being.

The program concluded with a vote of thanks from Assistant Registrar Dr. Jesu Ketan Patnaik, who expressed gratitude to all the distinguished guests, particularly Justice BR Gavai, for his insightful and heartfelt address.