CPR that revived our Constitution

Kesavananda Bharati v. state of Kerala: The most appreciated page in the constitutional history 

Yes, the very first case which every law student hear in their law school let’s know something beyond the facts of the case. 

24^th April, 1973 a historic day in our constitutional history, the day we got the savior doctrine of our constitution, the savior of the rule of law and fundamental rights, the day we got assured that democracy will not be getting converted into a Wishlist for one person (their were clear symptoms of this by the amendments made by Indira Gandhi government). This case was almost climax in the war of supremacy between judiciary and the legislature.

Case was decided by a 13 judge bench (largest bench constituted till now) but the case was won by wafer thin majority of 7:6, it was Justice Khanna’s decision (little more than half in the favour of petitioner) else the situation would have been totally different.

Verdict of Golaknath case was to be reviewed and various constitutional amendments were also challenged like 24^th, 25^th, 26^th and 29^th amendment, to be precise the main question was does amending power of parliament includes the power to rewrite the constitution? Or say does parliament’s amending power has any limit or not?

Mrs. Gandhi got almost 350 seats out of 540 seats after her outstanding victory in the election of 1971 (yes, the same election with the slogans of ‘Indira hatao’ and ‘garibi hatao’) so it is very easy for such government to pass any amendment like the present government but Mrs. Gandhi exploited her position.

Advocate representing petitioner was Nani Palkhivala, one of the best lawyers known as courtroom genius with Setalvad style of advocacy(brief and logical). It is said that a good advocate strengthens the dignity of the court and he proved it, he had Soli Sorabjee, Anil Divan, Popat, Ravinder Narain and several other lawyers who collectively made this happen they worked together with great strength unlike opposition Seervai and Niren De.

Kesavananda who challenged the Kerala land reform act was never aware that name will become immortal, in reality he never met Palkhivala, he only saw his name appearing in the head lines of many news papers.

Many notable arguments were presented by Palkhivala :

• one of the best example he quoted was of Hitler that he had been allowed to amend the constitution and the world knows what followed. 
• Article 368 doesn’t mentions expressly any limitations on amending power of the constitution but what is left unsaid is as important as "what is said", "what is implied" is as much a part of the instrument as what is expressed. "Parliament's will" can’t be always equated with "people wills".
• Article 368 should not be read as ,"expressing the death wish of the constitution or as a provision for it’s legal suicide”.

Dwivedi ,a strong supporter of government ,came with 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 form parliament that all other fundamental rights can be left unamended”.

There were many incidents which happened and is not considered genuine like Justice Mirza Hameed Ullah Beg, a pro government judge fall ill in March, 1973. It was believed that it was just a trick to delay judgement as Sikri was to be retired, after his retirement the case will be reheard so that the judgement will be in accordance with the government but history has been approved whenever a person retires from his office he desire of doing something heroic and memorable just like CJI Dipak Misra did resolving Sabrimala temple case, making adultery as non criminal and many other important cases. Same was the case with CJI Sikri, he was to be retired on the very next day of passing the judgement of Kesavananda Bharati case on 24^th April 1973.

Jaganmohan Reddy said in his autobiography that the case was of political nature, ”I got the impression(from the first day)that minds were closed and views were determined”.

CJI Sikri , Justice Shelat Grover, Justice Hedge, Justice Reddy and Justice Mukherjee held at constitution had limited power to amend the constitution. 

Justice Ray, Justice Palekar, Justice Mathew, Justice Mirza Hameed Ullah Beg, Justice Mirza Hameed Ullah Beg Dwivedi and Justice Chandrachud held parliament has unlimited amending power, Justice Khanna was also of the same view but in later part while dealing with Article 31C, held that basic structure can’t be altered through parliament amending powers.

Finally the judgement overruled Golaknath case and held that parliament has limited amending powers, it can’t alter the basic structure of Indian constitution. Basic structure includes democratic government ,secular character, supremacy of constitution, federal character, separation of power, etc. Rest will be defined from time to time according to the need.

This was more than enough impediment to ignite the government which was leading towards dictatorship. Now the move of parliament was awaited after the turn of judiciary. It came firstly in the form of appointing Justice Ray as CJI by breaking the convention of appointing senior most judge as CJI Justice Ray superseded Shelat, Hegde and Grover (yes they were against the government). 

42^nd constitutional amendment act 1976 was passed to limit the power of Supreme Court and High court.

Apart from all this today also basic structure doctrine acts as a yardstick for the constitutional interpretation it has done many wonders one of its remarkable wonder is that it declared 39^th constitutional amendment act,1975 as unconstitutional which was brought to nullify the Allahabad HC judgment against Indira. It made election of president vice-president, prime minister and speaker non-challengeable in any court.

Later attempt was made to review Kesavananda judgement or let's say judiciary was trying to loose whatever dignity was left (a step ahead to committee judiciary).

On 10th of November 1975, 13 judge bench assembled to hear the case a day before Palkhivala wrote a personal letter to Indira, Andhyarujina remarked this letter as 'doubtful propriety’, Palkhivala congratulated  her for a success of appeal against the Allahabad HC judgement and said ,"after you who will be able to hold the entire country together states will fight for greater autonomy, so how can we give unrestricted power to the parliament". 

"India is politically more stable than Pakistan, Burma, Ceylon and they almost got independence together, greatest credit for this achievement goes to you and your father Nehru and said that your can save the constitution."

As expected Indira ignored the letter.

Palkhivala came argued on the day of review which counted among the golden hours of the advocacy of Palkhivala.

It was pointed by Ray that there is need for review as the request came from the petitioner. "Ever since Kesavananda case has been decided we have been flooded with the request for review."

Even the Tamil Nadu government asked for review. And all the things were proved false and Palkhivala argued "we are not a debating society that we argue in order to reaffirm a judgment" .

In the history Palkhivala will be marked as a savior of the Indian constitution and the Justice Ray will be remarked as the one who presided over the darkest period of the constitution. 

by- Swati Mishra

      (Co-founder of The Bay of Law)