Revisiting a verdict

The Supreme Court's 1973 verdict in Kesavananda Bharati and the debate on the basic structure doctrine continue to fascinate observers.

IN an article written in 1974, in the immediate aftermath of the Supreme Court's landmark judgment in the Kesavananda Bharati case, the legal scholar Upendra Baxi predicted that for a long time to come the Indian judiciary, constitutional scholarship and, above all, the Indian polity are likely to be consumed by the magnificent obsessions created by the 11 opinions of the Supreme Court. He said in an article titled The Constitutional quicksands of Kesavananda Bharati and the Twenty-Fifth Amendment that even a limited analysis of what the court decided is as delicate and difficult as that directed to the unravelling of the significance of the smile of Mona Lisa. Upendra Baxi was prescient.

The two books under review seek to unravel the varied and profound questions raised by the historic judgment of 700-odd pages, which was delivered by a sharply divided 13-judge Constitution Bench with a majority of 7:6. They try to answer the questions, to use Baxi's phrase, with the chill of reason rather than with the passion of a moment.

The Kesavananda Bharati case dealt with the scope and width of Parliament's amending powers as laid down in Article 368 of the Constitution. In Golaknath vs State of Punjab in 1967, for the first time an 11-judge Constitution Bench decided, with a majority of 6:5, that Parliament could not through amendment abrogate or abridge the fundamental rights. In order to nullify the Golaknath verdict, Parliament enacted the 24th Amendment to the Constitution in 1971 laying down that its powers to amend the Constitution were unrestricted and unlimited.

In March 1970, Kesavananda Bharati, the pontiff of a religious mutt in Kerala, took objection to the attempts of the government to acquire, under the Kerala Land Reforms Act, 1963, land belonging to the mutt. The mutt challenged the Act, through the famous advocate N.A. Palkhivala, before the Supreme Court by filing a writ petition seeking to protect the fundamental right of religious institutions to manage their own property without undue restrictions by the state. When this petition was pending, the 24th Amendment to the Constitution (amending Articles 13 and 368) was adopted. It was followed by the 25th, 26th and 29th Amendments. The 25th Amendment (1971) made many changes in Article 31 (dealing with compulsory acquisition of property) following the 1970 bank nationalisation case ( R.C. Cooper vs Union of India).

The 26th Amendment (1971) 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. The 29th Amendment (1972) added two Kerala Land Reforms Amendment Acts (1969 and 1971) to the Ninth Schedule, which is meant for Acts that the State legislatures and Parliament wanted to keep beyond judicial review. Kesavananda subsequently challenged this amendment, but as the challenges to the other amendments raised similar issues, they were heard together. Kesavananda became the lead petitioner since he filed the petition first.

Consequently, the validity of these amendments was challenged before a Constitution Bench comprising five judges. In August 1972, the five-judge Bench admitted the petition and referred it to a 13-judge Bench, which heard the case for over six months before delivering its verdict on April 24, 1973. The Supreme Court had only 15 judges when the 13-judge Bench heard the case. Palkhivala led the arguments on behalf of the petitioners, while the eminent constitutional scholar, H.M. Seervai, along with Attorney-General Niren De, argued on behalf of the respondents.

T.R. Andhyarujina was a junior to Seervai during the hearing of the case. The arguments before the court lasted 66 days and young Andhyarujina maintained a diary, noting down meticulously every twist and turn that marked the relationship between counsel and the Bench and among the judges within the Bench. He makes two points. One, he disputes the general belief that the Supreme Court held in the Kesavananda case that Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution. Second, he asserts that the belief was the result of the stratagem of the then Chief Justice of India (CJI), Justice S.M. Sikri, who got a note titled View by the Majority signed by nine of the 13 judges.

This note had no legal sanctity whatsoever. The crucial sentence in the note relating to Article 368 not enabling Parliament to alter the basic structure was in fact lifted from only one of the 11 judgments in the case. That judgment was authored by Justice H.R. Khanna. The book is a chronicle of how a single judge's view became the holding of the majority of judges.

A certain amount of tension was building up between Prime Minister Indira Gandhi and Justice Sikri before the hearing began. In order to prepare the Supreme Court to reverse the Golaknath verdict, Indira Gandhi wanted to pack the court with judges of her choice and did succeed in doing so to some extent. Justice Sikri resisted, but he was not always successful.

The odds were even when the hearing began. Chief Jusitce Sikri and Justices J.M. Shelat, K.S. Hegde and A.N. Grover were determined to defend the concept of implied limitations on Parliament's amending power. This concept was the bedrock of the Golaknath judgment. Justices Sikri and Shelat were part of the majority judges in the Golaknath case. All the four judges were part of the majority judges whose verdicts went against the government's moves to nationalise banks and abolish privy purses. The Supreme Court had decided these cases between the Golaknath and Kesavananda cases.

Justices A.N. Ray, K.K. Mathew, D.G. Palekar, M.H. Beg, and S.N. Dwivedi were pro-government judges on the Kesavananda Bench, and their collective view was that Parliament had unfettered powers to amend the fundamental rights. Justices H.R. Khanna, A.K. Mukherjea, P. Jaganmohan Reddy and Y.V. Chandrachud were non-committal at the start of the Kesavananda hearing, and no one was sure about their leanings until the delivery of the verdict.

In the final outcome, the number of Sikri-led judges went up to six, with two additions. They were Justices Reddy and Mukherjea. Justice Chandrachud joined the remaining five judges who decided that Parliament had the unlimited amending power. Justice Khanna thus became the only judge who could tilt the scales one way or the other. By signing the note circulated by Chief Justice Sikri, Justice Khanna apparently joined the Sikri-led judges, thus giving them the bare majority on the Bench.

Justice Khanna's position

Andhyarujina argues that there was an unbridgeable gulf between the views of Justice Khanna and the Sikri-led six judges and that it was impossible for them to have formed the majority. While the Sikri-led judges adopted the implied limitations' route to reach the basic structure doctrine, Justice Khanna took recourse to, what a keen observer of the case called, the semantic route expressly rejecting the implied limitations theory. Justice Khanna held that the word amendment ipso facto overruled dismemberment of the existing Constitution through the amendment process.

The Sikri-led judges had a pre-conceived notion of what the basic or essential features of the Constitution were. These differed according to their perceptions, and they were clear that Parliament could not touch them. These included the republican form of government, separation of powers, fundamental rights, democracy and judicial review.

Justice Khanna held that any amendment should not leave the existing Constitution unrecognisable. The degree of weakening of the Constitution would need to be much higher than what was envisaged under the implied limitations theory of the Sikri-led judges, and the new Constitution resulting from such an amendment must be completely different from the original one so as to make it unrecognisable. Justice Khanna was against only this kind of amendment.

As a senior advocate of the Supreme Court explained to this reviewer, the distinction between Justice Khanna and the Sikri-led judges could be understood better by the metaphor of an obese person wanting to undergo bariatric surgery to trim his potbelly. To the implied limitation theorists (led by Justice Sikri himself), even this surgery would have been anathema as they would deem it as damaging the basic structure of that patient. The semantic theorists (represented by Justice Khanna), however, would have approved it, provided the surgery was not accompanied by a facial implant or a sex change.

In the note on the View by the Majority, the Sikri-led judges, along with two of the pro-government judges, dramatically merged their views with that of Justice Khanna without any explanation or reasoning whatsoever in order to help their brother Justice Sikri, who was to retire before the delivery of the verdict.

As the View by the Majority note essentially reflected his original position, Justice Khanna had no difficulty in signing it.

Change in interpretation

But it was Justice Khanna's subsequent conduct that cast doubts on his own position, and thereby hangs another tale. When the Kesavananda case was decided, the apprehension that the elected representatives could not be trusted to act responsibly appeared ridiculous. But, as Senior Advocate Raju Ramachandran, writes in his essay in Supreme, but not infallible (an academic book published in 2000 to mark the golden jubilee of the Supreme Court), this apprehension came true very soon and all too dramatically.

The supersession of judges in 1973 to choose A.N. Ray as the successor to Sikri as CJI was the first indication. The superseded judges, Justices Shelat, Hegde and Grover (who were on the side of Sikri on the Kesavananda Bench), resigned in protest.

The Allahabad High Court set aside Prime Minister Indira Gandhi's election to the Lok Sabha on June 12, 1975, on the grounds of corrupt practice. She then imposed an internal emergency, filed an appeal in the Supreme Court, got the electoral law amended retrospectively to take away the basis of the High Court finding, and rushed through the 39th Amendment Act inserting Article 329A to wipe out all judicial proceedings against her election.

In Smt. Indira Nehru Gandhi vs Raj Narain, the Supreme Court's five-judge Constitution Bench unanimously applied the basic structure doctrine to invalidate Article 329A, though it upheld the Prime Minister's election on the basis of the retrospective amendment to the electoral law.

Justice Khanna, who was part of this Bench, had no difficulty in going along with the four judges. However, he felt it necessary to interpret his own judgment in the Kesavananda case, probably realising that it had caused confusion. He clarified that he found it difficult to read anything in his Kesavananda judgment to justify the conclusion that the fundamental rights were not part of the basic structure. He suggested that he had held that the right to property, a fundamental right at that time (Parliament later removed it from the list of fundamental rights and converted it to an ordinary right), was not part of the basic structure. He argued that if he wanted to exclude all the fundamental rights from the basic structure, he need not have specifically mentioned the right to property as the one that needed to be excluded from the basic structure.

However, many observers, including Andhyarujina, consider that in Kesavananda, Justice Khanna did not share the Sikri-led judges' emphasis on treating the fundamental rights as unamendable basic features of the Constitution. In Kesavananda, they say that Justice Khanna was in favour of amending the fundamental rights as long as such an amendment did not result in changing the basic character of the Constitution.

Andhyarujina argues in the book that it is not open to the author of the judgment to explain it or to say later that he did not mean what his judgment plainly reads. If a judgment is to be analysed for its meaning, it can only be done by another court and not by the author of the judgment. He has also pointed to several inconsistencies in Justice Khanna's clarification of his judgment in the Kesavananda case made while delivering the Indira Nehru-Gandhi judgment. Justice Khanna did not convincingly answer these inconsistencies during his lifetime.

Irrespective of such inconsistencies, it is possible to suggest that Justice Khanna decided to identify himself with the Sikri-led judges on the question of the fundamental rights being a part of the basic structure in view of Indira Gandhi's blatant abuse of constitutional provisions to keep her in office. He might have thought that had he not cleared the doubts about the majority verdict in the Kesavananda case then, authoritarian tendencies in the government would have become unstoppable. By signing the View by the Majority note, Justice Khanna had created sufficient elbow room to adjust his position later.

To Andhyarujina's surprise, subsequent Benches of the Supreme Court accepted this clarification of Justice Khanna rather than what the plain reading of the Kesavananda judgments would suggest. The fundamental rights thus became an inseparable part of the basic structure of the Constitution.

Justice Khanna's clarification, though legally untenable, found support among subsequent Benches of the Supreme Court, primarily because he inspired huge respect by virtue of his unblemished and distinguished record. He was the sole dissenter in the five-judge Constitution Bench in the infamous A.D.M. Jabalpur case, which justified the suspension of right to life and liberty during the Emergency. The Indira Gandhi government superseded him while appointing Justice Beg the Chief Justice on Justice Ray's retirement in 1977. Justice Khanna resigned in protest and has since been hailed as a towering legal icon.

The second book under review was born out of an event, organised in Pune on January 16, 2010, on the 90th birth anniversary of the late Palkhivala, to reargue the Kesavananda Bharati case. Section 1 of the book deals with the comparison and critical analysis of 11 opinions in the Kesavananda case. Section II is devoted to the legacy of Seervai and Palkhivala and includes articles by Seervai's son, Navroz Seervai, and brother of Palkhivala, Behram A. Palkhivala.

Section III includes critical papers by invited authors, including Andhyarujina and Anil B. Divan.

The two books will contribute immensely to enhancing the constitutional literacy of lawyers, and through them, lay readers. They also help us understand how constitutional law, like political events, can be a result of accidents in history.