Kesavananda Bharati: The monk who saved the Constitution

On April 24, 49 years ago, the Supreme Court issued a monumental decision in Kesavananda Bharati vs the State of Kerala, which is regarded as one of the most significant constitutional decisions in Indian judicial history. Chief Justice S M Sikri headed a 13-judge constitutional bench of the Supreme Court and the hearings were presented for 68 days, beginning on October 31, 1972, and ending on March 23, 1973. The amount of time and effort that had gone into preparing this case was astounding.

Legal question

All of this labour was aimed at answering a single question: Does Parliament have the unrestricted right to amend the Constitution?

On a simple reading, Article 368 did not restrict Parliament’s ability to change any provision of the Constitution. Nothing barred Parliament from removing a citizen’s right to free expression or religious freedom. However, the frequent revisions to the Constitution raised the question of whether there was any inherent or implicit constraint on Parliament’s modifying power.

The nearly 700-page document brought to light a court that was deeply divided, and it was decided by a razor-thin majority that the Legislature may change any provision of the Constitution as long as it did not alter or revise “the core structure or essential elements of the Constitution.” This was the intrinsic and inferred constraint on Parliament’s ability to amend the Constitution. As future events demonstrated, this ‘basic framework’ concept rescued Indian democracy, and the Kesavananda Bharati case will always have a special position in our constitutional history.

The court did not define the ‘basic structure’, where it could have listed just a few concepts -- federalism, secularism, and democracy — as being the core structure. Since then, the court has incorporated additional elements into this paradigm.

The Kesavananda Bharati case was the centerpiece of a severe disagreement between the court and the Indira Gandhi government.

In the Golaknath case in 1967, the Supreme Court took the extreme position that Parliament could not amend or change any fundamental right. Two years later, Indira Gandhi nationalised 14 major banks, and the pitiful recompense was paid out in bonds that matured after 10 years! The Supreme Court overturned this but stood by Parliament’s power to nationalise banks and other sectors. In 1970, Indira Gandhi dissolved the Privy Purses. This was a constitutional breach of Sardar Patel’s solemn commitment to the princes of pre-Independent India. This, too, was overturned by the Supreme Court. Ironically, the late Madhavrao Scindia, who subsequently joined the Congress party, challenged the removal of the Privy Purses.

In the 1970s, the Indira Gandhi government made important constitutional modifications (the 24th, 25th, 26th, and 29th amendments) to overturn the Supreme Court’s decisions in prominent cases such as R C Cooper (1970), Madhavrao Scindia (1970), and the previously mentioned Golaknath (1967).

These amendments to the Constitution granted Parliament unrestricted authority to change or even repeal any fundamental right.

The case

Kesavananda Bharati, the head of Edneer math in Kerala, as well as various coal, sugar and other enterprises contested these extreme amendments. On the opposite side, there was not just the Union of India, but nearly every state that had interfered. Hundreds of precedents had been referenced, and the then-Attorney-General had created a comparison chart analysing the provisions of some 70 constitutions.

During the 68 days of the hearing, the case was presented by legal luminaries like Nani Palkhivala, Fali S Nariman, Soli Sorabjee, and many others for the petitioners, while the Union and the states were represented by legal stalwarts like H M Seervai and Niren De.

The 13-judge bench concluded with a 7-6 majority that the Constitution’s ‘basic structure’ is unchallengeable and cannot be altered by Parliament. Chief Justice of India S M Sikri, together with Justices K S Hegde, A K Mukherjea, J M Shelat, A N Grover, P Jaganmohan Reddy, and H R Khanna, delivered the majority decision. Dissension was expressed by Justices A N Ray, D G Palekar, K K Mathew, M H Beg, S N Dwivedi and Y V Chandrachud.

By the time Emergency was declared in 1975, the formation in the Supreme Court had changed from the time of the Kesavananda Bharati case, and eight new judges had been appointed, who were elevated with a high degree of Executive interference. Justice A N Ray was made Chief Justice of India by superseding three judges senior to him. Chief Justice Ray made a stunning move to revisit the Kesavananda Bharati judgement by forming a new bench of 13 justices. Palkhivala delivered an emotional appeal to not overturn the Kesavananda Bharati judgement in what is widely regarded as the best advocacy ever heard in the Supreme Court. CJI Ray was greatly embarrassed when it was exposed that no one had filed a review petition. So, how did this bench come to be formed? The other justices were outraged, and the 13-judge bench was disbanded after two days of deliberation. The dreadful review was over, but it had done irreparable harm to CJI Ray’s reputation.

Saving the Constitution

If a majority of the Supreme Court had decided that Parliament could change any portion of the Constitution, India would very probably have descended into authoritarianism by now and the Constitution’s supremacy would have been lost. Even Seervai eventually agreed that the basic structure theory was crucial in preserving Indian democracy and the nation itself.

For instance, regardless of electoral malfeasance, the 39th Amendment prevented any challenge to the election of the President, Vice-President, Speaker, and Prime Minister. This was a blatant attempt to overturn the Allahabad High Court’s decision against Indira Gandhi. The 41st Amendment prevented any civil or criminal complaint from being filed against the President, Vice-President, Prime Minister, or Governors, not only during their time in office but for the rest of their lives. As a result, even if a person served as Governor for only one day, he would enjoy immunity from legal proceedings for the rest of his life. If Parliament was truly supreme, these frightening modifications would have been included in the Constitution.

Today, we should celebrate legendary lawyers like Nani Palkhivala, Fali Nariman, Soli Sorabjee and others for their immense contribution to saving India’s Constitution and Constitutionalism.

(The writer is a student of law based out of New Delhi)

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