Forty years on: Review of Kesavananda Bharati versus the State of Kerala in Supreme Court

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 examine the build up to the case and its political backdrop, together with the key protagonists. The second part which releases tomorrow, covers the controversial review that never was, and its legacy.

Part I

Buildup to Bharati  

This year marks an unlikely milestone in the history of India’s judiciary. It is the 40th anniversary of both the Emergency and of the review petition that sought to overturn the most famous case in India’s judicial and constitutional history: Kesavananda Bharati vs State of Kerala. Both incidents serve as the high watermark of a period of confrontation between the executive and the judiciary, a period never essayed before or repeated since. It also marks the 40th anniversary of what is generally regarded as the finest court performance by a counsel in India — NA Palkhivala’s marathon nine-hour argument before the Supreme Court for the plaintiff, Kesavananda Bharati. Shockingly, the Supreme Court records do not even make mention of this episode on 10 and 11 November of that year. One of the most celebrated moments in India’s judicial history is not recorded in the annals of the apex court before whom the arguments took place.

Buildup to Bharati

The 1960s and 1970s mark the great epoch in the evolution of Indian Constitutional law.

The times were troubled.

Indira Gandhi bestrode the political landscape like an avenging Durga, determined to remake the country, in her, and her party’s image. India would bend to her knee, or break into pieces.  Congress, always the party of the Left, was indulging in large-scale social engineering of a kind never attempted before. Refusing to acknowledge that there is such a thing as leaving mankind alone, the Congress systematically over a period of years, enhanced the role of the state in the name of socialism and intruded on individual rights, particularly the right to property. Bank nationalisation and privy purse abolition came in succession. Land reform and a series of acts to execute it, quickly followed. Large parliamentary majorities for the Congress were the norm and these were used to push legislation that favoured these policies. Much of this was to be challenged in court, and was to prove the backdrop to this tumultuous era in constitutional law.

Against this ranging Durga — made even more powerful by her victory in the 1971 war — there was pitted an intrepid band of constitutional lawyers, many of whom were enrolled at the Bombay Bar. Many were civil libertarians in the classic mould, though in the cut-and-thrust of daily court work, they rarely saw themselves as such. Because of this clash between the Durga and the libertarians, this era marks the turbulent yet fertile period of Indian Constitutional law, beginning with the Golaknath case of the late sixties, and ending with the Minerva Mills case of 1980.

The buildup to Kesavananda was marked by a series of cases – and decisions – that set the stage for the case itself. At the core of all these cases was the basic question: Was Parliament’s power to amend the Constitution unlimited, since it represented the will of the people and its majority, or was that power circumscribed when it came to certain fundamental rights of the people? In quick succession, came the Golaknath case, the Privy Purse case, and the Bank Nationalisation case.

They were to set the stage for the later clash.

The Kesavananda case had its roots in Golaknath vs State of Punjab, in which the Supreme Court in an 11-member bench, ruled that Parliament could not curtail any fundamental right guaranteed under the Constitution.  To nullify the Golaknath verdict, Parliament enacted the 24th Amendment to the Constitution, laying down that its powers to amend the Constitution were unrestricted and unlimited. Two years after Golaknath, Indira nationalised a big portion of the banking system but the compensation to existing shareholders was paltry, in fact, almost extortionate. Rustom Cooper vs Union of India — known as the Bank Nationalisation case — again resulted in a loss for the government, as the Supreme Court struck down the compensation offered, while upholding the government’s right to nationalisation. The 25th Amendment made many changes in Article 31 (dealing with compulsory acquisition of property) following the Bank Nationalisation case.

Then came the abolition of privy purses to the princes. The privy purses had been a reassurance given at Independence, that was reneged upon by the government, and successfully challenged.  The 26th Amendment, terminating the privileges and privy purses of the ex-rulers of the former princely states, was aimed at getting over the Supreme Court’s ruling in the privy purses case. All cases had been argued by Palkhivala for the petitioners, and all of them resulted in the government’s defeat. Much of the issue turned around Articles 13 and 368 of the Constitution and Parliament’s right — under 368 — to amend any provision of the Constitution, including those that affected fundamental rights, as mentioned in 13.

On Locke, Seervai, and Palkhivala

Many of the battles in constitutional law rage around the title deeds to the modern liberal state, an idea going back to John Locke’s Second Treatise on Government, an idea which held that an individual may do anything except that prohibited by law, but a state may do nothing except that which is authorised by law. The issues often deal with profound philosophical and moral questions — the individual versus the state, habeas corpus, fundamental freedoms, property, the rights and obligations of the different entities within a state — the executive, the legislature, and the judiciary – and their separate relationship with one another. Its subject matter is inherently political, and politics is the authoritative allocation of power and values within a society.

This is also a country with the longest written Constitution in the world. As if that were not enough, this is also a country with perhaps the most amended constitution in the world.  Since 1950, India has amended its Constitution 100 times; since 1789, the US Constitution has been amended just 33 times. Here, the battles take on an added edge. There’s just a lot more to argue about.

The practice of constitutional law is not very lucrative, for reasons that are not difficult to see. Often, one of the parties is the government. The other party is usually someone indigent, the little guy, sometimes even a terrorist. None of them pay very well. Yet it commands, by virtue of the issues it deals with, a peculiar and particular prestige in the legal profession. The constitutional lawyer who has it in his karma to be involved in a particularly important case enjoys a lasting historical renown that does not accrue to his cousin, the corporate lawyer, more well paid, but ultimately a technocrat slaving away at  the fine print of a merger transaction.

Kesavananda Bharati was to pit two such stalwarts against one another. Both were blessed with good karma, in that the peaks of their careers coincided with this turbulent period in Indian constitutional law. One had a strong civil libertarian core; the other an overwhelming sense of duty as the government’s first law officer.  Nani Palkhivala, for the plaintiff, took on his friend Hormusji Seervai representing the State of Kerala. Both were assisted by a formidable battery of legal talent. Palkhivala was assisted by Soli Sorabjee and Anil Divan, and instructed by JB Dadachanji, Ravinder Narain, DM Popat, and ML Bhakta. Seervai, representing the government, had Niren De, Tehmton Andhyarujina, Lal Narain Sinha, Byra Reddy and Dr LM Singhvi.  The case would even fray relations between them. Despite the consideration that the traditions of the bar enjoined them too, and despite the civility of the community both belonged to, the tensions of fighting the case would even — for a while — lead to a breakdown in personal relations between them.

To Hormusji Maneckji Seervai goes the distinction of turning down practically every legal position of note offered to a renowned lawyer. He rejected offers to both the Attorney General  and Solicitor General’s positions, and then turned down a Supreme Court judgeship. Usually comfortable as the lawyer to the government — it was said there was “no more redoubtable defender of the government’s rights and privileges than Seervai” — , he had been for 17 years the Advocate General of Maharashtra. A lawyer’s lawyer, Seervai actually did not see himself as a political appointee, despite the intensely political nature of the post.  A man of strong personal convictions, he would actually turn down government briefs if they conflicted with his beliefs, a practice unheard of today. The author of a distinguished work on constitutional law written between 1961 and 1967, he laboured on the book for 35 years over four editions.

Yet, in what was essentially a libertarian case, the association with the government was to be a difficult one. Perhaps, because of that association, Seervai’s instincts were off. This, despite the fact that there was nary a hint of an authoritarian streak to his nature or personality. Perhaps in Seervai’s case, he was always the government’s dutiful first law officer. The contrast to Palkhivala could not have been more pronounced.  Kesavananda Bharati was to see Seervai argue for 22 days — and lose. In Kesavananda, the foremost expert on constitutional law had lost the most famous case in his field — the one case that really mattered. Later in his life, after the dust had settled, and after the terrible and appalling experience of the Emergency, he would even admit to the error of his ways.

With Seervai’s conscience, there was no other way.

Reading Palkhivala’s speeches as ACC chairman brings out the sturdiness of his thought. Possessed of strong civil libertarian instincts and a forthright nature, speaking truth to power came naturally to him. To Palkhivala, a Constitution was a living breathing thing, written in words so vascular, that if you cut them they would bleed. Palkhivala had the technical mindset of the highly skilled lawyer, and was in fact known as a tax specialist. But that was elevated by wide reading and considerable rhetorical skills brought about by a liberal education — his basic training had been in literature.

A lawyer’s weapons are words, and these Palkhivala wielded with matchless ability and effect. To this, one must add a photographic memory and detailed knowledge of the law and its precedents. More unusual was his considerable economic and financial literacy, an atypical trait in Indian lawyers. The economic analysis of the law, a fertile and highly critical area right from the time of Coase, particularly in the law of regulation, continued to get short shrift in India. The lawyers were not economists, and the economists knew nothing about the law. Palkhivala, a self-taught economist by virtue both of his famous budget speeches and corporate career with the Tatas, was a notable exception to this rule.

Finally, there was a certain consummate skill at court-craft. After Palkhivala’s arguments, it was said that Supreme Court judges took their time writing judgments, so as not to be unduly swayed by the terrible force of his rhetoric.

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