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Case File

Judicial jugaad


The current power and stature enjoyed by the Supreme Court owes much to a judgment delivered 40 years ago in the Kesavananda Bharati case. TOI-Crest looks back at a landmark battle.

Kesavananda Bharati is the case that Indian law students dread. Not only is the verdict, delivered 40 years ago, on April 24, 1973, inescapably important, since it formulated the doctrine that the Supreme Court is guardian of the 'basic structure' of the Constitution, able to stop Parliament from changing it beyond certain - court decided - limits. It is also confusing, since it involved 13 judges, the largest bench ever to sit in the Supreme Court, delivering 11 verdicts, with fine shades of difference.

Most unfairly of all there is that name, in full, His Holiness Kesavananda Bharati Sripadagalvaru vs. State of Kerala, which even in shorter form must have sorely taxed hands racing to finish exam papers. Why on earth, some students must have wondered, couldn't the famous lawyer Nani Palkhivala have chosen a case with a shorter name on which to base this great contest between judiciary and Parliament (or, more accurately, Parliament as dominated by the government of Mrs Indira Gandhi)?

It is not like His Holiness ever had much to do with it. He was (and still is) head of Edneer Mutt in Kasargod district - and law students should consider that his full name is Srimad Jagadguru Sri Sri Sankaracharya Thotakacharya Keshavananda Bharathi Sripadangalavaru! In March 1970 he filed a case challenging the Kerala government's attempts to control mutt property. The case came to the attention of Palkhivala who decided this might be the case on which to challenge Parliament's power to amend the Constitution at will, including over property rights matters.

This challenge stemmed from the court's decision in the Golak Nath vs State of Punjab (1967) case which held that Parliament could not amend fundamental rights guaranteed in the Constitution, including the right to property. This was followed by other notable defeats for the government, over bank nationalisation and abolition of the privy purses paid to the Indian princes. Using the massive majority she won in 1971, Mrs Gandhi easily pushed through the 24th, 25th and 26th Constitutional Amendments nullifying these verdicts - and setting the stage for a battle with the court.

It is easy today to depict this battle in black and white. Winners' stories are the most convincing, and Mrs Gandhi's actions, immediately after the verdict, and then later in the Emergency, tainted her reputation irrevocably. Her motives, as Granville Austen, the scholar of the Indian Constitution has noted, seem fairly clear: "Were mastery of the Supreme Court be added to her mastery of Parliament, she would have virtually unchallengeable control of the government and, nearly, the country. " THE GOVERNMENT'S CASE Yet the government did have a case, and this is why the final verdict was so close, seven votes to six. The Constitution did allow for amendments, Mrs Gandhi did have a fairly won majority and in most democracies this would suffice. The legal talent on its side, lead by H M Seervai (in unhappy tandem with Niren De, the Attorney General, who the government blamed for its earlier losses), was as eminent and committed as Palkhivala's team.

Adding urgency to their case was the fact that the late' 60s and early '70s were times of real crisis, with huge shortfalls of food - riots broke out over grain supply in Maharashtra in the week of the verdict. There was a sense that the government had to take strong steps in areas like agricultural reform, and property rights were seen as barrier to such reforms. And it clearly seemed like an absurd anachronism, for example, to keep paying large sums to the princes while thousands were starving.

Whatever Mrs Gandhi's personal motives, many in her government, like her adviser P N Haksar or the ex-communist minister Mohan Kumaramangalam, were not acting from personal considerations, but deeply felt convictions. The court was seen as a conservative block to the Congress' progressive and legitimate agenda and the Constitutional Amendments a fair way to around it. Some judges on the court evidently agreed, but a group of senior judges was adamantly opposed to diluting Fundamental Rights, and uneasy with the government's increasing intolerance of any limits.

The Chief Justice of India (CJI) S M Sikri was one of them and had voted in the majority in Golak Nath, but his position now gave him the additional charge of safeguarding the court's role as a counterbalance to the government. The Emergency would confirm the truth of these apprehensions, but at that time the odds seemed stacked against the court. To start with there was the bench size. Golak Nath was decided by 11 judges, so procedure dictated that any challenge had to be before an even larger, odd number bench, hence 13 judges.

But the court didn't have that many judges to devote to what was clearly going to be an extremely long hearing. New appointments were needed and at that time this was done by joint consultations between the government and CJI. It was possible, though, for a choice to be made hard to refuse, and this is clearly what the government did with some of the nominees. Sikri clearly did not care for some of them, but since they were qualified enough, it was hard for him to oppose their names. Yet the aura of court packing, as the tactic was called, hung over the case.

The government could also exert other influences, direct and indirect. For the normally sedate court, Kesavananda came as a shock;there was, writes eminent counsel TR Andhyarujina in his dry yet fascinating account of the case, based on diaries he kept while working in Seervai's legal team, "a surcharged atmosphere of tension between the Court and Government the likes of which had not been witnessed previously, " Rumours abounded about private links between ministers and judges and inducements being offered. The anti-government group in court also made its intentions clear by having a meeting from which pro-government judges were pointedly excluded.


The most startling moment came on December 6, 1972, 36 days into oral arguments, when one of the pro-government judges, S N Dwivedi, made an open offer to Palkhivala: "Are you prepared to say that the fundamental right to property can be amended? If so I am prepared to procure from Parliament that all other fundamental rights can be left unamended. " The government's position was clear - and the fact that it could get a judge to speak it. Palkhivala disdained this, but would later have his own dramatic moment when he read out words from "an eminent jurist" supporting the sacrosanct status of the fundamental rights - and then revealed this was none other than his opponent, Mr Seervai!

As the case dragged on, everyone was acutely conscious of one date: April 25, 1973, the day on which Sikri was to retire. The verdict had to come before then, so hearings had to end with enough time for the judges to write their verdicts. But then one of the judges, M H Beg reported sick, and it is a sign of the febrile atmosphere that it was immediately suspected this was a ruse to drag out the case.

If the case could not conclude before Sikri retired the government could argue that hearings should be scrapped and start again - under a more favourable Bench. Sikri countered by suggesting the hearings continue in Beg's absence, but the entire government team threatened to quit. Palkhivala saved the day by agreeing to end and submit final arguments in writing. On March 23, after 66 days of argument, the hearings came to end, leaving the judges just a month to write their verdicts.

These were delivered on April 24, and despite the best efforts of Sikri to get the judges to write joint verdicts, only two agreed. This meant that 11 verdicts were read in court that day, a few solidly on the government's side, but most with subtle variations of opinion. It is some measure of how confusing it was that The Times of India headlines for the next day were: 'Court Upholds Parliament's Power', and that 'Fundamental Rights can be amended. ' It would seem that the government had won.

In fact, Sikri had pulled off a coup. He realised right to property might not survive, but the court's power could. The solution lay in a phrase used by Justice H R Khanna, who wrote: "The power of amendment... does not include the power to abrogate the Constitution nor does it include the power to alter the basic structure or framework of the Constitution. "


A majority of judges supported overruling Golak Nath, but a bare 7-6 majority also supported Khanna's statement thereby preserving the court's role as ultimate arbiter of the Constitution, since who else could decide what was 'basic structure'.

The irony is that this decision was much what Dwivedi had offered: right to property gone, but all else intact. But the way it was arrived at made all the difference. On the 24th, his last day as CJI, Sikri pulled out a typed sheet articulating this agreement, starting with the fact that Golak Nath was overruled, but followed by an affirmation of 'basic structure', a concept that, Andhyarujina points out, really only existed in the mind of one judge before this. Sikri's document cut through all 11 verdicts, making the real impact of Kesavananda clear. In open court, going against all previous procedure, he passed it to the other judges to sign. Four refused it, but nine did and the case was done.

To put it in current terms, Sikri had pulled off a judicial jugaad. Despite the appointments of judges he didn't want and immense government pressure, he had got, not quite the verdict he wanted, but a good enough one, even if done at last minute and by dubious means. "The bench's glory was in its decision, not in the manner of arriving at it, " writes Austen, in what could be a dictionary definition of jugaad. Despite the headlines proclaiming her victory, Mrs Gandhi got the point and struck back the very next day. The convention was that the CJI's appointment was on seniority, but the next three judges in line, Justices Shelat, Grover and Hegde, had voted for the majority, so were passed over in favour of Justice A N Ray, the seniormost judge who had voted in the government's favour.

The superseded justices immediately resigned and a storm broke out, in Parliament and in courts across the country, at this unilateral exercise of power. This controversy was one of the main precursors to the Emergency, and its after-effects can still be felt. The judiciary decided that it needed to take control of its own appointments, which it gradually proceeded to do, creating the collegium of senior judges who decide appointments, unfettered by government views.

This was unprecedented anywhere in the world and is another jugaad solution that, in the way of such solutions, might have been useful as a stopgap, but is now showing its limitations, with its own abuses and inefficiencies.

The government's recent proposal to create a Judicial Appointments Commission is the latest salvo in this battle and it remains to be seen how the court will respond. But 'basic structure' survived both an attempt by CJI Ray to create a Bench to overrule it, and the 42nd Amendment, passed during the Emergency, which was later diluted by the Janata government.

The current power and stature enjoyed by the Supreme Court, much as politicians might hate it, owes a lot to the events of that day 40 years back. What began, Andhyarujina suggests, as just a metaphor dreamed up by Khanna has become a cornerstone of current interpretations of India's Constitution, thanks to Sikri's last-minute moves and a piece of paper with nine signatures that may be one of the most important documents of the Indian state (it is in the Court archives).

None of which matters much to His Holiness himself, still at his mutt in Kasargod. He was bewildered at that time to find his name in the papers;Andhyarujina recalls being told that His Holiness worried about how to pay these high-profile lawyers, not realising that they were working for the prestige and importance of the case. In the years since, a few curious legal students have made their way to the mutt to meet him, and he greets them politely and asks if they have eaten. About the case in his name that remade the Indian constitution, he says he only vaguely remembers a property matter many years back.

Reader's opinion (2)

Bornik ChatterjeeMay 9th, 2013 at 16:27 PM

A blast from the past!

Geeta DoctorMay 4th, 2013 at 12:07 PM


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