50 years ago, the SC ruled on the Constitution’s basic structure. What went on behind the scenes?

April 24 marks 50 years since the Supreme Court delivered its verdict in the landmark Kesavananda Bharati case, ruling that Parliament cannot amend the basic structure of the Constitution. The judgement was delivered on April 24, 1973, by a 13-judge bench of the Supreme Court after a hearing that lasted 66 days.

The verdict that provided a firewall to the constitutional edifice continues to be debated till date. Since late last year, the judiciary and the government have been engaged in a war of words over the basic structure doctrine. The debate has seen remarks by Chief Justice of India DY Chandrachud, Vice President Jagdeep Dhankar and Law Minister Kiren Rijiju.

Some of the high drama that unfolded in the Supreme Court during the litigation 50 years ago is worth revisiting.

Judiciary vs government

The ruling was the result of a petition by Kesavananda Bharati, the head of a Hindu monastery in Kerala’s Kasargod district, challenging the state government’s land reform acts that would result in the institution losing its holdings.

The Kesavananda Bharati ruling was the culmination of a power struggle between Parliament and the Supreme Court that began with an earlier case.

In 1967, the Supreme Court had ruled in the case of Golak Nath vs State of Punjab that Parliament could not amend the Fundamental Rights laid down in the Constitution. The Golak Nath verdict was perceived as a political decision, buttressed by the candidature of Chief Justice of India K Subba Rao – who had authored the majority judgement – as the Opposition’s candidate for the presidential election in 1967.

Following the Golak Nath case verdict and in anticipation of a major legal battle in the Supreme Court over the Kesavananda Bharati case, the Indira Gandhi-led government appointed judges it expected would rule in favor of Parliament.

One such judge was Justice SN Dwivedi, a relative of HN Bahuguna who was a minister in Gandhi’s Cabinet. Justice Dwivedi had openly declared that he was going to the Supreme Court to overrule the Golak Nath verdict. Five out of the six judges so appointed also favoured the government in the Kesavananda case.

The Kesavananda Bharati case was itself decided by a wafer-thin majority of seven-six and the government retaliated almost instantly. It superseded the three senior-most judges – JM Shelat, KS Hegde, and AN Grover – and appointed Justice AN Ray, who had favored Parliament, as the next Chief Justice of India.

As Chief Justice of India, Ray made an abortive attempt to review the Kesavananda Bharati verdict in 1975. The government, too, attempted to nullify the verdict through the Constitution (42nd Amendment) Act, 1976, that amended various portions of the Constitution. But the Supreme Court, in its verdict in the Minerva Mills case in 1980 that further clarified on the powers of Parliament, struck down some of these amendments.

The Supreme Court struck down provisions four and five amending Article 368 of the Constitution. Provision four prevented any amendments of the Constitution from being “called in question in by any court” while provision five declared “no limitation whatsoever” on powers of Parliament to amend or repeal provisions of the Constitution.

Tense atmosphere

Veteran lawyer TR Andhyarujina, in Kesavananda Bharati Case: The untold struggle for supremacy between the Supreme Court and Parliament, wrote about the tense and “surcharged” atmosphere in which the litigation for the case took place. “The Kesavananda case was […] heard and decided in a surcharged atmosphere of tension between the Court and the Government the likes of which had not been witnessed previously. This atmosphere regrettably also affected some judges in the case and resulted in disregard of the norms of judicial detachment expected of the judges of the highest court.”

Granville Austin, in Working a Democratic Constitution: The Indian Experience, pointed out that “the judges’ deliberation process was bizarre. Their individual opinions were chaotically articulated. The relations of one or more judges with the executive branch during the case were thought to have been improper. As one judge [Justice YV Chandrachud] understatedly put it, the case was ‘full of excitements and unusual happenings’.”

Niren De, who was the attorney general then, was often rude to the bench. According to P Jaganmohan Reddy, who served on the 13-member bench, the attorney general said at one point that consequences would have to be borne if the decision went against the government. “This, I felt, was an attempt to browbeat us,” Justice Reddy wrote in The Judiciary I Served.

Decorum, a judge in hospital

The illness and subsequent hospitalisation of Justice MH Beg during the last leg of the marathon hearing triggered a breakdown of judicial and legal decorum. Justice Beg was presumed to be a pro-government judge. The judge’s hospitalisation abruptly ended the oral hearing on March 23, 1973.

Chief Justice of India SM Sikri, who visited Beg in the hospital, said the judge was suffering from hypertension and had been advised complete rest for three weeks. Any mental stress would aggravate his health. The Chief Justice said Beg would therefore have to be dropped from the bench.

Nani A Palkhivala, the counsel for the petitioner, agreed with the Chief Justice. But attorney general De objected and warned that he, along with HM Seervai, counsel for the State of Kerala, would not continue with the hearing if the court continued the case without Justice Beg.

Fortunately, he recovered from his sickness and delivered a separate judgement in favour of the government.

Justice HR Khanna’s separate judgement was another twist in the case. The question of whether fundamental rights are included in the basic structure of the Constitution remains unanswered even today due to Justice Khanna’s judgement.

The proposition that Fundamental Rights are included in the basic structure was accepted by the six judges, led by Chief Justice Sikri. Justice Khanna, while subscribing to the Basic Structure Doctrine, rejected this view. Justice Khanna held that the Constitution (29th Amendment) Act, 1972, that curtailed the fundamental right to property was perfectly valid. According to him, because Fundamental Rights are not, per se, a part of the Basic Structure Doctrine, they can be amended.

But finally, the outcome of the case was a victory for the government and the Supreme Court. “With the reversal of its past trends by the Supreme Court in economic and property cases after the Kesavananda case it may be said that Parliament and the Government equally triumphed in their struggle as the Supreme Court did in its control over the amending power of Parliament,” wrote Andhyarujina.

The Supreme Court won the right of judicial review of constitutional amendments by enunciating the Basic Structure Doctrine. The Supreme Court also validated the Constitution (29th Amendment) Act, 1972, that curtailed the fundamental right to property and fundamental rights were not brought under the ambit of the Basic Structure. This was a victory for Parliament.

Faisal CK is Under Secretary (Law) to the Government of Kerala. Views are personal.