The review that wasn't: Forty years after Kesavananda Bharati vs the State of Kerala

In this two-part series, Firstpost looks at a landmark episode in Indian constitutional history, the Kesavananda Bharati case and its subsequent review, the 40th anniversary of which occurred recently. In the first part, we looked at the buildup to the case and its political backdrop, together with the key protagonists. The second part covers the controversial review that never was, and the legacy.

Part II

The Review that Wasn’t

Your Lordships, the facts of the case suggest…

Kesavananda Bharati, then a young man in his 20s, and the hereditary head of a math in Kerala, had little idea that the case he filed would end up being such a landmark. Taking umbrage at the Kerala government’s attempt to impose restrictions on the management of religious property through land reform legislation, Bharati filed the suit questioning its constitutional propriety. The case came to the attention of Nani Palkhivala, who recognised its possibilities, particularly the prospect of challenging three Amendments — the 24th, 25th and 26th — to the Constitution.

Further, the 29th Amendment had added two Kerala Land Reforms Amendment Acts (1969 and 1971) to the Ninth Schedule, which was meant for acts that the state legislatures and Parliament wanted to keep beyond judicial review. Bharati subsequently challenged this Amendment, but as the challenges to the other Amendments raised similar issues, they were heard together. By then, the case had evolved into a dispute over Parliament’s power under Article 368 to amend the Indian Constitution.

Bharati became the lead petitioner since he filed the petition first; regardless, he did not have any role to play in the subsequent legal drama. The more the pontiff saw his name in the papers, the more concerned he became about the legal fees that he felt might be billed to him (the charges were nominal). In fact, Bharati claims he never met Palkhivala or ever spoke to him, perhaps one of the few cases in legal history, where a client never met his lawyer, on such a notable case.

The actual case of 1973 was decided in an atmosphere that while predating the Emergency, was still described as “poisonous” by Granville Austin.  It had a number of firsts to its credit that became part of judicial lore.  It was heard by the largest bench ever — 13 members — over the longest number of days — 68.  It was the longest judgment, covering 703 pages and the head notes of the SCC reported judgment alone run into 80 pages.  The entire case came close to being reheard because of the illness of Justice MH Beg, who had to be hospitalised thrice. An artificial time constraint existed with the looming retirement of Chief Justice Sarva Mittra Sikri. If the hearings did not finish before his retirement, there was the possibility of going through them again with a new Chief Justice.  It so happens that the verdict was delivered on the Chief Justice’s last working day.

File image of the Supreme Court. AFP

File image of the Supreme Court. AFP

Rumours of court packing by the government were repeatedly raised, and depending on the proclivity of the listener, believed or denied.

The government’s case was not helped by the initial squabbling between Hormusji Seervai and Attorney-General Niren De over who would open the arguments for the defence. Since De was smarting from successive defeats after BankNationalisation and Golaknath, Mohan Kumaramangalam — Indira Gandhi’s point man and no mean lawyer himself — was keen that Seervai take up the matter. Seervai agreed, on the condition that he would open arguments.

This caused the usual dark grumblings and mutterings among lawyers in the corridors over how De as attorney-general should have had precedence, and opened. The matter caused friction between Seervai and De initially, which Palkhivala exploited when he opened for the plaintiff. The resolution came in the form of a face saver. When the government’s turn came to argue, De rose and announced that he had opened but would be travelling overseas for urgent work.

This left the field open to Seervai.

The actual ruling was something of a muddle. On the one hand, it overturned Golaknath and upheld the Centre's subsequent amendments. On the other hand, the Supreme Court reasserted itself vis-à-vis Parliament and reinforced the power of judicial review, holding that Parliament did not have the right to overturn the “basic structure” of the Constitution, especially when it came to guaranteeing certain fundamental rights.

This decision was made by a wafer-thin majority of 7:6, ie with six judges dissenting to the majority view. In the most controversial act of all, Chief Justice Sikri then went on to gerrymander a majority through a stratagem called “The View by the Majority”, in which a single-typed sheet was circulated on the bench and signed by 9 of the 13 judges, confirming the matter.  The term “basic structure” itself had been used by just one judge, HR Khanna in his opinion, and finds first mention in this “View by the Majority”.  By this ‘basic structure doctrine', the Supreme Court strengthened the power of judicial review and, ipso facto, placed a limitation on the Parliament's power to amend the Constitution.

1975 and the review that wasn’t

In 1975, an attempt was made to review the Kesavananda Bharati case and reassert Parliament’s right to amend the Constitution.  Its circumstances are mysterious, but with the passage of time some of the events behind the episode have become clearer.  On an oral application by De before Chief Justice AN Ray, a review by a 13-strong bench was ordered by the Chief Justice. By now Indira had declared an Emergency and assumed dictatorial powers. Eight new judges had been appointed to the Supreme Court. Ray’s appointment itself had been controversial; he had bypassed three other judges to become Chief Justice.

Part of the earlier muddle from the Kesavananda hearing of 1973 carried forward to the review. A review petition needs a petition to review ; it turns out that there was no petition to review in the first place. This was an astonishing omission for a case of this magnitude, as Andhyarujina points out.

The day before the review, Palkhivala in a highly dubious move, had addressed a letter to Indira. The letter itself made various political arguments against a review.

On 10 and 11 November, a team of lawyers — led by Palkhivala — continuously argued against the Union government's application for a review and reconsideration of the Kesavananda decision. A packed Central Court heard Palkhivala’s arguments against review on the first day — 10 November. Palkhivala, as Andhyarujina noted, was always a master of advocacy when he developed the unacceptable consequences of a situation in law. The review gave him another occasion to bring out those consequences.

Palkhivala argued that no case had been made to review the 'basic structure' doctrine. There had been only an oral request for a review, and no sign that the courts had any difficulty applying the theory. He said the Emergency was not the right time to argue a fundamental rights case. He then went on to the consequences of unbridled power of the government to amend, if the limitation of “basic structure” was removed. It must have taken remarkable fortitude to argue a case for fundamental rights in the middle of the Emergency. Justice Khanna, whose judgment coined the term “basic structure”, was to call it the finest performance by a counsel. Several observers believe he reached heights of advocacy not seen since.

Much of the argument turned on how and why the review had been ordered by the Chief Justice on the oral request of the attorney-general. Chief Justice Ray suggested it had come from the petitioners themselves, which Palkhivala decried as utterly absurd. How was this bench then constituted? On 11 November, the attorney-general appeared and could not make the case for a review. Some of the judges accepted Palkhivala’s argument on the very first day, the others on the next. By the end of the second day, the Chief Justice was reduced to a minority of one. On the morning of 12 November 12, Chief Justice Ray tersely pronounced that the bench was dissolved, and the judges rose.

The review had been abandoned.

To this day, there is no mention in the Supreme Court records of these events of November 1975.

In Justice Khanna’s view, the review that never was, had been as significant — if not more so — as the judgment itself. The review marked the last determined assault on the “basic structure” doctrine and would mark the beginning of its influence on constitutional and judicial theory. His view was echoed by Andhyarujina in his book about the episode. In fact, one of the most unusual opinions of the prominence of the review, comes from Andhyarujina himself.  According to him, it was the unusual urgency of the review — done so obviously for political mileage in the darkest chapter in Indian democracy, the Emergency —  and its subsequent cancellation, that gave Kesavananda and the 'basic structure' doctrine its subsequent prominence. It was the aborted review, and the Emergency itself, that gave the case the legitimacy and prominence it came to enjoy.

The year 1975, with its declaration of the Emergency and the attempt to repeal the Kesavananda judgment, must therefore stand as the high watermark of Indira’s assault on individual liberties, and of her party’s attempt to assert parliamentary privilege through brute majorities. When the review failed, the 42nd Amendment was passed, attempting to reassert Parliament’s right under Article 368, and cancel out the case’s verdict. The 42nd Amendment was itself then challenged in the Minerva Mills case, when it was nullified.

With the Minerva Mills case, Parliament lost the contest and the “basic structure doctrine” began to acquire the legitimacy it has subsequently enjoyed.

And where are they today ?

And what of the dramatis personae in the whole affair?  Some have been felled by old Father Time, but surprisingly, all these years later, some are still around. Perhaps sheer longevity is another trait of top lawyers.

The man who gave his name to the landmark case in Indian constitutional law, today portly and in his 60s, continues to head the math that started it all. Bharati, or rather Srimad Jagadguru Sri Sri Sankaracharya Thotakacharya Keshavananda Bharathi Sripadangalavaru is still the pontiff of the Edneer math in Kerala, a position he has held for over half a century, in fact since before the time of the case. As would be expected, the pontiff’s concerns continue to be spiritual rather than temporal. Curious law students visiting the ecclesiastic find him decidedly nonchalant on what the fuss was all about.

Palkhivala died at 82, the most celebrated lawyer of his generation. The powerful and restless mind had been destroyed by a series of strokes in his last years. Seervai, noted for his book on constitutional law, a work still in print and use, passed away at 89.  Soli Sorabjee was to inherit Palkhivala’s position as the Bhishma Pitamah of the legal profession, and is still around. JB Dadachanji, passed away in his eighties, and with him went the eponymous firm that bore his name. Tehmtan Andhyarujina went on to become a solicitor-general and wrote a well-received book on the episode.

Ravinder Narain continues to practice in the Supreme Court.

The legacy

And yet, for all its importance, Kesavananda Bharati actually left an ambigious historical legacy. The judgment left open as many questions as it answered. It said that Parliament could not interfere with the basic structure of the Constitution, but left open the question of what constituted “basic structure”. This continued to remain an elusive beast, its emergence justified less in legal theory than in terms of functionality. It was a “nebulous and subjective standard” as Andhyarujina, one of its sternest critics, is quick to point out. Over the years, the “basic structure” concept was enlarged to a smorgasbord of self-evident truths that include the supremacy of the Constitution; republican and democratic government; federal and secular character of the Constitution; maintenance of separation of powers; mandate to build a welfare state under the Directive Principles of State Policy; provision of socio-economic justice; liberty of thought, belief, expression, faith and worship; and equality of status and opportunity.

The judgment also refused to consider the right to property as a fundamental right that was covered by the 'basic structure' doctrine. Despite that, the right to private property, is more solid today, and yet not absolute, as it should be in a market economy. In property’s most important manifestation — land — the state possessed “eminent domain” till very recently. The legal quibbling about “compensation” versus “amount” which much of the judgment was concerned with, remains irrelevant today.  The government had attempted to do away with market-related compensation by substituting the word “amount” in legislation, thereby making easier its attempts at social justice through land reform.

Effectively, this amounted to expropriation by the state as there was no attempt to make that amount market related. Today, any legal attempt to do the same would be recognised as just that — extortionary expropriation by the state. Subsequent public policy itself got muddled on the issues with which Kesavananda dealt. Much of that muddle came from the clash between fundamental rights and the right to property on the one hand, and the ideals of social justice as embodied in the Directive Principles of State Policy, on the other.

In one aspect though, its legacy is unambiguous. It has led to the Indian Supreme Court becoming one of the most powerful in the world. Power, like nature, cannot stand a vacuum. The case has resulted in the judiciary taking over the vacuum that has resulted from a divided dysfunctional Parliament and an executive that is often in office, but not in power. So the ideas over which it was fought have now had their relevance reduced by the passage of time. What was seen as heresy then, is now an established commonplace. The idea that Parliament was a creature of the Constitution and draws its powers from it, is now well-established.

And yet, given the noted ahistorical nature of the Indian mind, the exact achievement of this band of constitutional lawyers has not got the public recognition it deserves. India, as is its wont, has moved on, taking for granted the hard won freedoms they fought for. What would have been the future of democracy had the Court given Parliament — dominated by a government with distinctly authoritarian tendencies — the total leeway to amend the Constitution?

Could it have resulted, as Palkhivala argued, in the destruction of the very foundations of our democratic polity?

Could it have led down the slippery slope to authoritarianism?

The author is an investment advisor in Mumbai. Mail him at a_rustomjee@hotmail.com


Published Date: Dec 22, 2015 06:10 pm | Updated Date: Dec 22, 2015 06:10 pm

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