“A look back at the most tumultuous phase of modern Indian history, when the government imposed emergency, through the cases that defined it.”
Indira Gandhi came to power on the promises of poverty reduction and delivering prosperity to the masses, ‘garibi hatao’ was her campaign’s slogan for the 1971 elections. To bring her policies and schemes to life she took measures which went directly against the spirit of the constitution. A chief facet of her push was to bring as many resources under the control of the centre as possible. Banks were nationalised, large parcels of land that belonged to different establishments and persons were taken over in the socialist push with the ultimate aim of a more equitable distribution.
Kesavananda Bharati case: The beginnings
One of the establishments affected by the government’s decision to take over the land belonging to private individuals was the Edneer mutt of Kesavananda Bharati in Kerala. The young monk Kesavananda, who was just 21 when he became the head of the mutt after his father’s demise, was now 30 years old and he approached a lawyer from Kerala, Mr. MK Nambiar to fight his case.
His mutt was not the only one affected by the government’s bold steps, in fact the landed property of the Edneer Mutt was taken over by the Kerala government through the land reform acts it brought in 1969. The mutt had ownership over huge tracts of land which were leased out and the money from this was used to run the mutt. With the government taking over the lands, mutt had lost its income and the monk had approached the court against the State of Kerala asking the government to restore the land to the mutt he overlooked. There were many such cases across the country where the petitioners had their land taken over by the government. Most of the affected parties were sugar mills, factory owners and so on. When the matters reached the Supreme Court and were consolidated, the name of the monk from Kerala found itself on the top of the list. The atmosphere in the country at that time was very socialist and the industrial class, although essential for the nation’s functioning, wasn’t looked upon very favourably by the public. By bringing the name of the monk to the fore, the courts very smartly won the public contest of optics with the government and set the tone for what was about to follow – the greatest tug-of-war between the executive and the judiciary over the principles of the constitution.
Palkhiwala vs. Seervai: In the court
Mr. MK Nambiar had brought Kesavananda Bharati in contact with Nani Palkhiwala, who was now to argue for the petitioners in the SC. The case brought the best lawyers of the country to court no. 1 of the Supreme Court before a 13 judge bench, headed by Chief Justice S M Sikri. Arguing for the petitioners was the biggest legal luminary of the day, Mr. Nani Palkhiwala, assisted by other heavyweights like Soli Sorabjee and Fali Nariman, and on the government’s side were Mr. H M Seervai (representing the State of Kerala), arguably the tallest constitutional expert this nation has seen, and Mr. Niren De, the 3rd Attorney General of the country. When the matter reached the Supreme Court it had become much bigger than a simple suit against the government seeking return of the property, it had become a question about the fundamental rights and their place in the set up, and about the amending powers of the parliament.
The 29th amendment to the constitution brought in 1972 had taken the Kerala law reforms mentioned before and put them in the 9th schedule of the constitution which made them immune to the judicial preview. This along with the 24th, 25th amendments were in question in the Kesavananda Bharati case. By the 24th amendment, the government had given primacy to the directive principles over the fundamental rights and given the parliament greater power to amend the constitution under Article 368 and overruled the Golaknath judgement which had put a limit on government’s power to amend the constitution.
In simple words the questions before the court were whether the Directive Principles of State Policy can have precedence over the Fundamental rights? (Government had brought amendments enabling the government to take decisions that could violate the fundamental rights as long as they were taken for the “common good”) and whether the parliament could amend the constitution to any degree whatsoever?
Nani Palkhiwala vehemently argued against these, often drawing from the events that had happened in pre-world war 2 Germany, where the unrestricted powers of the parliament had been used to amend constitution and legitimise dictatorship, Palkhiwala argued that by giving the parliament unfettered powers, we are leaving the door open for a government to one day amend the constitution to such a degree and to such extent that India may be reduced to an autocracy, a dictatorship. He talked about the “essential features” and the “basic structure”, a vague term describing the core principles, core tenets of the constitution that should be untouchable and beyond the scope of amendments. He argued that the constitution itself has implied restrictions on the power of amendment available with the parliament.
H.M. Seervai was opposed to the arguments of Palkhiwala, he felt that Palkhiwala was relying too much on the hypotheticals and basically scaremongering the bench by his questions of “what if this happened” “what if that happened” into submission. Seervai believed in supremacy of the parliament and felt that the elected members of the parliament are free to amend the constitution the way they see fit and felt that there were abundant safeguards already existing in the constitution to prevent the bleak scenarios that Palkhiwala was painting in his arguments. It is said that during his submissions Mr. Seervai spent 10 days on singular the word “amend” – elaborating on its meaning and scope and application in India’s context.
The bench set up to hear the case remains the biggest bench in Indian legal history. The 13 judges were: Chief Justice SM Sikri, Justices YV Chandrachud, JM Shelat, AM Grover, KS Hegde, AN Ray, PJ Reddy, DG Palekar, KK Mathews, MH Beg, HR Khanna, SN Dwivedi, BK Mukherjee. The judgement was pronounced on 24th april 1973. It is often reported that the judgement was a 7:6 majority to the petitioners but the truth is much more layered.
Justice HR Khanna and the middle path: The Verdict
The bench was divided 6:6 with 6 judges subscribing to Palkhiwala’s arguments of undisputed supremacy of the fundamental rights and severe implied limitations on the parliament’s amending power and 6 judges agreed with the stance of the government according to which the parliament had unlimited and absolute power to amend the constitution however it saw fit. There was another third opinion, which was somewhere in the middle of the two and was put forth by Hon’ble Justice HR Khanna. He rejected the ‘implied limitations’ and ‘essential features’ concepts put forth by Palkhiwala and only engaged with the “basic structure doctrine”. In his judgement Justice Khanna held that the parliament has limitless power to amend and there are no “implied limitations” on this power latent or patent in the constitution, but that it is subject to the “basic structure doctrine” and cannot violate the core principles of the constitution by amendment. So, by a 7:6 majority, the bench affirmed the “basic structure doctrine” saying that there are some aspects of the constitution that are unamendable and the powers of the parliament are not without limitations, that the parliament cannot be equated with the constituent assembly, and that the amending power under Article 368 is not absolute and unlimited and it cannot be used to alter the basic structure of the constitution by an amendment. The questions were that what is the extent of the power that the parliament has when it comes to amend the constitution and whether the parliament can theoretically, in the name of ‘amending’ the constitution, remove the entire constitution and replace it with nothing? Can even the fundamental rights be diluted by amendment if the parliament wished? The court held that though there are no limitations on the amending power of the parliament but the basic structure of the constitution cannot be touched and removed. So while theoretically nothing prohibits the parliament from exercising its power of amendment on the fundamental rights (or any part of the constitution for that matter), but since these were part of the basic structure, they cannot be abrogated entirely.
The bench had recognised the “basic structure theory” but it did not strike down the amendments made. The 24th amendment had been brought by the parliament in order to nullify the effect of the Golaknath Case, it had given the parliament the right to dilute fundamental rights was upheld by the bench, with the new added limitation that it may not dilute any fundamental right that is part of the “basic structure”.
The monk of Edneer Mutt therefore, did not get the land back that once belonged to the mutt,in fact, the individual petitioners gained very little from the protracted case other than a place in the history books. Kesavananda Bharati had been wondering why his suit for the land had been making headlines and why it was taking so long. Now the suit was decided and the winners and losers weren’t very clear.
The 13 judge bench had produced 11 judgements. On the day when the entire country was waiting with bated breath for the court’s pronouncement, when it finally came, there was a great confusion in all quarters. There were 11 judgements and it wasn’t immediately clear who were part of the majority and who were not. In fact in the immediate aftermath of the judgement there were cabinet ministers who welcomed the judgement thinking that it had gone in their favour as the amendments were left untouched. It was only slowly that the judgement with its intricacies started to be understood by the parties. The petitioners were pleased that the “basic structure doctrine” had been recognised and protected, the government was initially relieved that the amendments were not struck down. Kesavananda Bharati’s mutt may not have got the land back but the judgement put restrictions on the amending powers of the parliament and recognised a doctrine whose constituents weren’t very well explained. “Basic Structure may not be tampered with”, but what consisted of the basic structure? There was no clarity, there wasn’t an exhaustive list to be found in the 1000+ pages judgement. Court had said that the “spirit of the constitution” would indicate towards the “basic structure”. Government felt that by this judgement the judiciary had effectively blocked all the future attempts of the government to carry out changes in the constitution, now every amendment could be theoretically challenged on the grounds that it violates the “basic structure” and the court would then examine whether it does or does not.
The criticism from the government quarters began soon after and it was relentless and vicious. The first domino had fallen and the stage was being set for what was about to unfold in coming years. We will look at the various attempts of the government to circumvent, nullify and bypass the Kesavananda Bharati case later.
Raj Narain Case: Unfolding trouble elsewhere
Meanwhile elsewhere in Uttar Pradesh, there was an election petition pending against Indira Gandhi. Filed by her opponent who had contested the seat of Rai Bareilly, Raj Narain, the petition accused Mrs. Gandhi of having used state machinery in the election campaign to her benefit. Now the Allahabad High Court had ruled in favour of Raj Narain and found Mrs. Gandhi guilty of the malpractices and disqualified from holding any political office.
Government office bearers using the state machinery in minor capacities to aid their election campaign was a common and widespread practice back then (and even is today). Many felt that the decision of the Allahabad High Court was too harsh and sympathised with Mrs. Gandhi and believed that it had created more problems than it solved. A notable person who also felt the same was Nani Palkhiwala. The same lawyer who had ferociously argued against Indira’s government a short time ago was approached with the brief of the case, which he accepted. He was now to represent Mrs. Gandhi in the Supreme Court against the decision of the Allahabad High Court disqualifying her election.
SOURCE – SUPREME COURT OF INDIA
READ ALSO –
- BASIC STRUCTURE DOCTRINE (ARTICLE 13)
- JUSTICE GAVAI ADDRESS AT NUSRL RANCHI, COMMEMORATING THE KESAVANANDA BHARATI CASE’S GOLDEN JUBILEE
ARTICLE WRITTEN BY – Vishav Kishore
EDITOR – Nancy Sharma
