Kesavananda Bharati: Unwitting saviour of democracy

Print edition : October 09, 2020

Kesavananda Bharati, the seer of Edneer mutt. Photo: By SPECIAL ARRANGEMENT

Veteran Communist leader E.M.S. Namboodiripad, whose first government in Kerala proposed several land reforms. Photo: THE HINDU ARCHIVES

Nani Palkhivala, the eminent jurist who argued for Kesavananda Bharati. Photo: THE HINDU ARCHIVES

November 28, 1969: Prime Minister Indira Gandhi inaugurating the Chief Ministers’ conference on Land Reforms in New Delhi. Also seen (from left) are: Pitambar Pant, Member, Planning Commission, D.R. Gadgil, Deputy Chairman, Planning Commission, Jagjivan Ram, Union Minister for Food, Agriculture, Community Development and Cooperation, and Y.B. Chavan, Union Home Minister. Photo: PIB

Kesavananda Bharati (1940-2020) never got the relief that he prayed for before the Supreme Court, but helped win the most significant decision in Indian judicial history when the court evolved an innovative ‘basic structure doctrine’ and placed itself as the arbiter of Parliament’s power to amend the Constitution.

Srimad Jagadguru Sri Sankaracharya Thotakacharya Kesavananda Bharati Sripadagalvaru who died on September 6, at the age of 79, was interred with religious rites at a quaint ceremony inside the Sri Edneer Mutt in Kasaragod in north Kerala. His devotees described the funeral ritual as his ‘Vrindavanapravesha’ (or ‘Entry into Vrindavana’) and, according to them, within the same enclosure were kept the mortal remains of 12 of his predecessors, all holy men from the lineage of Thotakacharya, one of the first four disciples of the philosopher-saint Adi Shankaracharya.

The ceremony is unique and has special spiritual significance for his followers. People from all walks of life attended the last journey of the affable sanyasi. They all knew him as the ‘peetathipathi’ (head) of the Edneer Mutt, a patron of arts, culture and education, a self-taught, skilled Carnatic and Hindustani vocalist and a popular ‘bhagawatha’ (storyteller) and ‘master’ of Yakshagana, the traditional music theatre form of south Karnataka and Kasaragod.

The mutt itself, situated in sylvan surroundings near the Madhuvahini river in Edneer village, draws a regular stream of devotees who come to pray to the presiding deities, Dakshinamoorthy and Gopalakrishna, and seek the blessings of its chief patron. It is a welcoming place for people of all faiths and political hues. The mutt runs two schools and a Veda ‘patasala’ nearby, owns property in many other places, and provides free food and sweet delicacies to visitors every day.

Rajmohan Unnithan, the Member of Parliament from Kasaragod, who attended the Vrindavanapravesha ceremony, told Frontline that as he watched the last rites, he was reminded of the day when he first went to the mutt as a ‘non-native’ candidate of the Congress party to seek Kesavananda Bharati’s blessings and support for his election campaign and victory.

The ‘Swamiji’ welcomed him warmly, he said, but at one point asked him abruptly: “Do you know who I am?” Rajmohan Unnithan hesitated a bit before answering the question as he was new to the constituency and did not know much about Edneer mutt or the man who headed it. When he was about to offer an explanation, the Swamiji cut him short and said: “I am Kesavananda Bharati, the petitioner in the landmark Supreme Court case.”

“That brought instant recognition,” Rajmohan Unnithan said.

Indeed, more than his spiritual, artistic or cultural pursuits, what brought fame to Kesavananda Bharati was something of which he was largely innocent—except perhaps for lighting the first spark of what eventually turned out to be the most significant constitutional case in India, a case described as “unique in international constitutional law”.

Land reforms and challenges

Kesavananda Bharati became the hereditary head of the Edneer Muttt, with its vast estates and land holdings in 1960, at the age of 19. It was truly a tumultuous period in the history of India. Since Independence, and especially after the launch of the first Five-Year Plan, land reforms, with the main objectives of abolition of intermediaries in land ownership, reform of tenancy, and imposition of ceiling on ownership of land, were considered by Central and State governments an important instrument in delivering social justice to the downtrodden in the country.

In 1959, the first Communist government led by E.M.S. Namboodiripad had already introduced the Kerala Agrarian Relations Bill, a remarkable bunch of proposals, which, among other things, sought to introduce new tenancy laws, provide ownership to occupants of homestead land (kudikidappu) and, importantly, impose limits on land ownership and distribute surplus land to the landless in the State. Landed interests in the State were extremely agitated over this and the Bill never became law as the Government was soon dismissed by the President.

The decade that followed saw many land reform dramas being enacted in the State, and even enfeebled versions of the original Bill introduced by some successive governments facing strong legal challenges from land owners who claimed that the provisions of the new laws contravened their fundamental rights to regularly seek protection from the courts.

By his own account in an interview, by March 1970, with “almost all of the mutt’s property about to be acquired by the State government”, something which “he could not afford to allow to happen because the money needed for running the mutt was being generated from that property”, the young Kesavananda Bharati agreed to the suggestion of N.M. Nambiar, a renowned lawyer the mutt had engaged, to approach the Supreme Court and entrust the case to the eminent jurist, Nani Palkhivala.

The recommendation was prudent and, in a way, turned out to be a case of “a petitioner getting the right legal advice at the right time and deciding the fate of the Constitution in the process”.

Landowners from several States who lost their surplus land under land reform laws had been seeking the intervention of the apex court at the time. Over a period, the questions raised by them regarding the right to property, which was a fundamental right under Article 31 (until 1978, when it was amended), and queries raised by people aggrieved by other new social justice laws, gave rise to a battle of wits, if not a struggle for supremacy, between the government and the judiciary.

At the root of the struggle were the questions: ‘Who was the ultimate arbiter of constitutional justice?’ and ‘Who would preserve the integrity of the Constitution?’ Was it the Supreme Court or the government of the day? In the early cases that showed signs of this struggle, the court had tended to strictly adhere to the constitutional text, refusing to heed to government pleas on even socially exigent policies if they were not constitutionally valid, ignoring the likely political repercussions of its decision. The government responded by amending the Constitution itself, about which the court, in those early years, held the view that Parliament had unrestricted power to do so.

Constitutional Amendments

Amending the Constitution whenever its provisions stood in the way of new social justice legislation continued as a norm for a while, and the government regularly tried to outsmart judicial decisions in cases involving agrarian reforms, issues of free speech, admission of backward classes in educational institutions, civil liberties and so on, using the amendment provision.

The most controversial of amendments indeed were those regarding land reforms, a politically important issue for Central and State governments then. Land reforms came under threat once the Bihar Land Reforms Act was struck down by the Patna High Court as early as 1951, saying that it violated the fundamental right to property of the landowners.

The government responded by inserting two provisions, Article 31(A) and Article 31(B), into the Constitution through the First Amendment Act, 1951. Article 31(A) was intended as a check (with retrospective effect) against invalidation of land acquisition by the courts on the ground that it violated fundamental rights. Article 31(B) , which created the Ninth Schedule of the Constitution, and which was inserted by way of abundant caution, ensured that any law placed in the Ninth Schedule stayed beyond the purview of judicial review.

With the apex court adhering to the letter of the Constitution, the authority of Parliament to amend the Constitution thus, without judicial review, continued for a long time, especially after the Supreme Court’s verdict in a prominent case in 1952 (Sankari Prasad vs Union of India) went against a challenge by some aggrieved landowners targeting the First Amendment.

As Article 13(2) of the Constitution forbade the State from making any ‘law’ that derogated Fundamental Rights, the claim of the landowners was that the term ‘law’ must include any ‘amendment’ to the Constitution too.

But the court rejected this argument, pointing out that ‘ordinary law’ made in exercise of legislative power was within the scope of judicial review and was a fundamental part of the scheme envisaged in the Constitution, while ‘constitutional law’, made in exercise of constituent power, was not. In that case, the court had asserted that Parliament had the power to amend the Constitution and that power was unlimited.

But a change in the court’s position began to be evident from the mid-1960s, following the Seventeenth Amendment enacted in 1964 by Parliament, whereby it inserted 44 statutes (mostly land reform Acts) passed by various States in it, thus excluding those laws from judicial review.

Change in Supreme Court stance

In 1965, in Sajjan Singh vs State of Rajasthan, while the majority of the judges upheld the Seventeenth Amendment, affirming Parliament’s power to amend the Constitution, even if the amendment was to overrule a court decision, two judges recorded the first dissenting notes on the issue of “amendability” of the Constitution.

While Justice M. Hidayatullah expressed the doubt that the word ‘law’ in Article 13(2) indeed excluded amendments to the Constitution, Justice J.R. Mudholkar, with remarkable foresight, pointed out that the Constitution had certain “basic features” which he said were epitomised in the Preamble, and any attempt to amend them ought to be an “invalid amendment”.

The political climate in the country was changing at that time, if not becoming uncertain, immediately after the death of Prime Minister Jawaharlal Nehru in May 1964, a few months before the Sajjan Singh verdict. The economy was in decline and a lack of political morality was becoming the order of the day. As many observers have pointed out, nobody could be certain at that juncture about the “emerging political culture” under Indira Gandhi and whether it would have “the same respect for liberal freedoms as Nehru did”.

As the events that followed proved, the judiciary too was no longer sure and seemed “increasingly disturbed by the constitutional amendments that frustrated the power and scope of judicial review”.

Within a few years, the Supreme Court’s decisions began to reflect this concern with increasing clarity, as in another landmark case, I.C. Golaknath vs State of Punjab (1967), when a bench of 11 judges ruled by a thin 6-5 majority that Parliament had no power to amend Fundamental Rights. It was for the first time that the Supreme Court overturned its earlier decisions that upheld the Seventeenth Amendment.

The court said Article 368 contained “only the procedure and not the power” for Parliament to amend the Constitution; that an amendment was a ‘legislative procedure’; that amendment was a ‘law’ as defined in Article 13 and so would become invalid if it tried to modify or deny Fundamental Rights.

Government’s legal reverses

When the Golaknath judgement was delivered, Indira Gandhi was the Prime Minister (following the death of Lal Bahadur Shastri) and in two important instances that followed, the government suffered reverses in the Supreme Court. One was the bank nationalisation initiative and the other was the derecognition of erstwhile princes as rulers and abolishment of their privy purses.

In R.C. Cooper vs Union of India (1970), the court struck down the government’s much-publicised scheme of bank nationalisation for failing to provide for a just compensation to the 14 banks named for takeover in the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1969. In Madhavarao Scindia and Others vs Union of India (1971), the court struck down the abolition of privy purses on the ground that it violated the fundamental and legal rights of the princes.

All these cases in which the government faced a setback had been argued by Nani Palkhivala. In the elections held in 1971, Indira Gandhi, at the height of her popularity after the victory in the Bangladesh war, had promised in the party manifesto that judicial hurdles placed in the way of socio-economic reforms would be removed. She won the elections with a huge majority and went on to amend the Constitution “with a broad political consensus to restore the supremacy of Parliament”.

Key amendments

The Constitution Twenty-Fourth Amendment Act, 1971, was clearly an answer to the court verdict in the Golaknath case, reiterating Parliament’s power to amend, vary or repeal any provision of the Constitution, including Fundamental Rights, and making it clear that ‘amendments’ to the Constitution were not ‘law’ for the purpose of Article 13(2).

Two other amendments were also introduced in quick succession in 1972.

The Twenty-Fifth Amendment Act curtailed the fundamental right to property, thus further protecting certain land reform measures from judicial review. It also provided that any law made to give effect to the Directive Principles (contained in Articles 39(b) and 39(c)), could not be challenged on the grounds of violation of the rights guaranteed by the Fundamental Right to equality, the seven freedoms and property.

The Twenty-Ninth Amendment Act inserted the Kerala Land Reforms (Amendment) Act, 1969, and the Kerala Land Reforms (Amendment) Act, 1971, in the Ninth Schedule and hence beyond judicial scrutiny.

In short, these three Amendments gave Parliament unfettered power to alter or even abolish any fundamental right.

It was into this milieu that Kesavananda Bharati entered with his grievance about the Kerala government taking over the Edneer Mutt’s property and Palkhivala found in it an occasion to challenge the three Amendments (24th, 25th and 29th) to the Constitution. The case itself soon evolved into the most high-profile and contentious constitutional dispute over Parliament’s power (under Article 368) to amend the Constitution.

Although, according to the text of the Constitution, Parliament did have the authority to amend the Constitution, and apparently this power was an unlimited one, the case was heard in the context of the widespread apprehension that Parliament, if left unrestrained to exercise its powers, “would take away the citizen’s fundamental rights, including his freedom”.

As such, it was the culmination of a serious conflict between the judiciary and the government led by Indira Gandhi, who was then in power with a huge majority.

In a deft balancing act, the court overturned the Golaknath verdict, which had said Parliament’s amending power should be subject to the Fundamental Rights and upheld the 24th, 25th and 29th Amendments. But then it also ruled that although Parliament surely had unfettered power to amend the Constitution, there were certain ‘basic features’ of the Constitution that could not be altered in exercise of the power to amend it under Article 368.

The word ‘amend’ in Article 368 means only changes other than altering the very structure of the Constitution, which would be tantamount to making a new Constitution. Therefore, any constitutional amendment, even if it were enacted as per procedure laid down under Article 368 of the Constitution, could be declared invalid if it violated ‘the basic structure of the Constitution’.

‘Basic structure’

But the judges expressed different views on what constituted ‘the basic structure’ and left the field open for a vast range of issues that might be protected under its new doctrine and for courts to interpret over the years on a case by case basis, in effect deploying itself as the official arbiter of what would or would not come within the purview of the ‘basic structure’ definition.

The ‘basic structure’ now includes, among others, such general features as the supremacy of the Constitution, the rule of law, the principle of separation of powers, independence of the judiciary, judicial reviews, freedom and dignity of the individual, unity and integrity of the nation, the principle of free and fair elections, federalism, secularism, and sovereign democratic republic.

Much has been written about the ‘hard work and scholarship’ on all sides that went into the preparation of the case and the surcharged political atmosphere in which it was heard: even the composition of the Bench was controversial, with allegations that the Indira Gandhi government had handpicked several judges who would rule in its favour.

Thirteen (of the then total 15) judges of the Supreme Court sat for 69 days spread over five months to consider a range of arguments widened to cover “broad fundamental issues” that were important not merely for the future of the country but the future of democracy itself. Finally, at the end of the arguments, a long and complex judgement emerged, with each judge expressing divergent views on almost every issue, and one judge (Justice H.R. Khanna) agreeing with none of the 12 judges and taking a position mid-way between the two conflicting views.

But, in the end, for the first time in history, nine judges signed a controversial summary of the judgement titled ‘View of the Majority’, reflecting the court’s most significant decision made by a thin majority of 7 to 6. It said that although Parliament had the power to amend any part of the Constitution, this power was limited, and it could not use this power to alter or destroy the ‘basic structure’ of the Constitution.

Remarkably, though perhaps in a controversial manner, the court had arrogated to itself the power to rule on the validity of constitutional amendments, and in one deft stroke, strengthened the power of judicial review and seized the keys to the Constitution, making itself one of the most powerful of such institutions in the world.

The judgment was delivered on April 24, 1973, the last working day before Chief Justice S.M. Sikri’s retirement. All constitutional amendments enacted after the Kesavananda Bharati judgement (including, for instance, the Thirty-Ninth Amendment Act, 1975 enacted in a hurry with Emergency following Indira Gandhi’s election being struck down by the Allahabad High Court) have had to pass the basic structure ‘filter’ created by the court.

Leading constitutional scholar Upendra Baxi has commented in one of his books that “the assertion of judicial review over the amendatory power is a remarkable feat of judicial activism, unparalleled in the history of world constitutional adjudication”.

Granville Austin, another leading authority on the Indian Constitution, wrote that the nine judges who eventually signed the ‘View of the Majority' had performed “an act of statesmanship, even of legerdemain”.

No relief for the sanyasi

Ironically, Kesavananda Bharati, the petitioner in the case, who first approached the court on March 21, 1970, under Article 32 for the enforcement of his fundamental rights and prayed that the provisions of the Kerala Land Reforms Act and its subsequent Amendments be declared as “unconstitutional, ultra vires and void”, never got the relief he prayed for.

He knew very little of how the case progressed and was not aware of the additional grounds or amendments of the petition sought on his behalf, content as he was that he had entrusted the case in “good hands”. He never thought his case would become a landmark and never went to the Supreme Court even once. As the days progressed, he was reported to have been worried often about how much his brilliant lawyer Palkhivala, whom he never met, would charge him for it.

Kesavananda Bharati, who was born on September 19, 1941, had, as his family custom dictated, assumed the role as head of the Edneer mutt on November 14, 1960. Fifty-year-old Jayaraman, his relative and chosen successor, who will head the mutt as Sachidananda Bharati, told Frontline that Kesavananda Bharati was “a deeply religious person, but also an affable, social being, secular in his outlook and a man who enjoyed his spiritual pursuits and music, theatre and cultural activities equally”.

The mutt must have lost “over 400 acres” as a result of the land reform law, but the swami rarely spoke to anybody about it or about the case.

No account of the Kesavananda Bharati case will, however, be complete without a mention of Nani Palkhivala, the legal genius who argued the case in the Supreme Court. Some of his eloquent submissions before the court have become part of legal lore in the country. For instance, one of his arguments was, “Parliament cannot do in two stages what it could not do in one stage. It cannot first repeal the limitations on its own constituent power and then purport to do what was forbidden by those limitations.”

After Palkhivala’s death on December 11, 2002, at the age of 82, his close friend, and colleague, former Solicitor General Soli J. Sorabjee, said: “To my mind Kesavananda Bharati was Palkhivala’s greatest contribution to our constitutional jurisprudence. The judgment has been a salutary check on Parliament’s tendency to ride roughshod over fundamental rights and its insatiable appetite to encroach upon fundamental rights… Nani, however, was at his forensic best in his arguments before the (short-lived, 13-judge) Bench which was specially constituted in 1975 (by Chief Justice A.N. Ray in the midst of the Emergency) to reconsider Kesavananda Bharati. In the words of one of the Judges on the Bench, ‘the heights of eloquence to which Palkhivala had risen have seldom been equalled and never been surpassed in the history of the Supreme Court’.”

The Chief Justice was forced to dissolve the Bench after two days of hearing, “after Palkhivala’s impassioned address before it, and resistance from some members of the Bench themselves”.

The dissolution of the Bench was later described by Austin as “the most critical moment’ for the Constitution and the Supreme Court since the original decision in Kesavananda Bharati.

As Sorabjee’s daughter and lawyer Zia Mody says in her book, 10 Judgements that Changed India, “The Supreme Court rightly chose uncertain democracy over certain tyranny.”