“This case, My Lords, is beyond question one of the most momentous in world history and probably the most important in the history of democracy,” — was how the case of ‘His Holiness Kesavananda Bharati Sripadagalvaru and others vs. State of Kerala' was described by the legendary jurist and legal luminary, Nani Palkhivala, in the Supreme Court.
Palkhivala was counsel for the petitioners in the Kesavananda case.
The “gripping” case is considered “the greatest Constitutional case decided by the Supreme Court of India”. It was decided after “the longest ever hearing” of 66 days (between 1972 and 1973) and by the “largest ever Bench” of 13 judges.
Since the Kesavananda case is much quoted and debated, many people, especially those in legal circles, feel they already know everything about it.
Now, a book —The Kesavananda Bharati Case' — written by former Solicitor General of India, T.R. Andhyarujina (who, in the case, appeared as a counsel with H.M. Seervai, an authority on Constitutional law and counsel for the respondents – the State of Kerala), claims to disclose “for the first time” the background in which the case was decided and its political overtones.
The case background
The Kesavananda case, the book says, was about the “struggle for supremacy” between Parliament/Government and the Supreme Court. The author says that “it is an untold story which is as revealing as distressing.”
Incidentally, in the case, the Supreme Court, by a wafer-thin majority of 7 to 6 judges, held on April 24, 1973 that Parliament's power to amend the Constitution does not include the power to alter the “basic structure” or framework of the Constitution.
The instances of ‘basic structure' included: supremacy of the Constitution; republican and democratic form of Government; secular and federal character of the Constitution; separation of powers between the legislature, the executive and the judiciary; dignity and freedom of the individual; as well as unity and integrity of the nation.
Just prior to it, in the case of Golak Nath vs State of Punjab in 1967, the apex court by a “6 to 5 majority had held that Parliament had no power to amend Fundamental Rights in the Constitution at all as they were ‘primordial rights necessary for the development of the human personality' and were given a ‘transcendental position in the Constitution'.”
So when the Kesavananda case came up, the Government left no stone unturned to make an effort to overturn the Golak Nath decision. The disclosures in the book include the Government's attempts to “influence the court by appointing judges who it expected would decide in its favour”; “the preconceived views of some of the judges on Parliament's power to amend the Constitution”; “the internal conflicts and factions among the judges”; and “the charged atmosphere of tension and conflict in court up to the last day of the delivery of their individual judgments”.
The book recounts “the unseemly wrangles between judges and counsel to exclude Justice M.H. Beg from the Bench after 66 days of hearings on his hospitalisation, which if carried out would have tilted the balance of judgments against Parliament and Government”; and how there were speculations that Justice Beg (‘who was clearly inclined to uphold the unfettered power of Parliament to amend the Constitution') “feigned illness to prolong the hearing beyond the then Chief Justice of India (and the head of the Bench) S.M. Sikri's retirement (on April 25, 1973) to ensure the hearing by a different Bench; ‘the stratagem of Chief Justice Sikri on the day of delivery of the judgment' (on April 24, 1973, a day before his retirement); and the ‘unfortunate controversy' of whether Justice Y.V. Chandrachud (who was part of the Bench) changed his judgment at the last moment allegedly at the instance of the then Law Minister H.R. Gokhale to wholly support Parliament's unlimited power to amend the Constitution.
Hitting back
Interestingly, the book also states how the Indira Gandhi Government hit back.
It says that “the Government – with the prior knowledge that the then Chief Justice Sikri and three senior most judges were going to decide against it – had decided to supersede them even before the judgment day to appoint Justice A.N. Ray (who the Government knew will be deciding in its favour) as the next Chief Justice of India on the very next day of the Kesavanada judgment.”
The book also gives an account of what it calls the “unreported and generally unknown abortive attempt” of the Chief Justice Ray to then review the Kesavananda judgment by another 13-judge Bench two years after the Kesavananda order.
It also talks about another attempt by the Government during the Emergency to nullify the majority view of the Kesavananda case by amending the Constitution to give unlimited powers of amendment to Parliament.
But after the Emergency, the Supreme Court, in the Minerva Mills case, struck down these amendments and ensured that the Kesavananda verdict “remained unaffected”.
The book finds that post the Kesavananda case, the apex court “conceded the widest latitude to Parliament and State legislatures in their economic policies and activities of Government and instead became more concerned with the personal freedoms of the individual and the liberal interpretation of right to protection of life and personal liberty”.
Andhyarujina's efforts of not only painstakingly maintaining a daily diary of the proceedings of 66 days of the hearing but also taking the trouble to preserve it for nearly four decades has helped him bring out fascinating insights on the case.
However, if you are looking for an unputdownable page-turner in the league of legal thrillers by authors such as John Grisham, you could be a tad disappointed because despite all the interesting facts, the author has chosen an academic approach.
(This article was published in the Business Line print edition dated January 30, 2012)
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