Will the ‘basic structure’ continue to hold strong?

April 24 marked the 50th anniversary of the Kesavananda Bharati case judgement. It was on that date in 1973 that a 13-judge bench of the Supreme Court of India, comprising the entire strength of the court at the time that included Chief Justice of India S M Sikri (the first-ever to be so designated directly from the Bar), Justices A N Grover, A N Ray, D G Palekar, H R Khanna, J M Shelat, K K Mathew, K S Hegde, M H Beg, P Jaganmohan Reddy, S N Dwivedi and Y V Chandrachud, delivered the epochal decision in Kesavananda Bharati vs State of Kerala. “A day to remember, recall and celebrate, akin to November 26, 1949, the date on which our Constitution was adopted,” said Nani Palkhivala, the lead counsel. It was “The case that shook and saved India,” said his deputy, Soli Sorabjee.

The case involved a challenge to the constitutional validity of the 24th Amendment Act, 1971, which sought to restrict the power of the judiciary to review constitutional amendments. The Supreme Court, in a historic judgement, upheld the validity of the ‘basic structure doctrine’, which holds that there are certain fundamental principles and features of the Indian Constitution that cannot be amended by the parliament, even though the Constitution itself does not explicitly provide for such limitation. The court held that the power of parliament to amend the Constitution under Article 368 is not absolute and is subject to certain inherent limitations.

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The Supreme Court, in a 7-6 majority decision (as is often perceived, though according to T R Andhyarjuna, it was a 6-7 minority) held that the basic structure of the Constitution -- which includes principles such as the supremacy of the Constitution, the rule of law, separation of powers, federalism, secularism, independent judiciary, and fundamental rights -- cannot be amended in a manner that destroys or damages that very structure. The court also ruled that parliament has the power to amend any provision of the Constitution, including fundamental rights, as long as it does not violate the ‘basic structure’ of the Constitution. In a nutshell, “It was held that the word ‘amend’ meant that there must be something left from the old after the change”, as Justice R F Nariman said.

“Nani (Palkhivala) was at his forensic best in his arguments before the bench specially constituted to reconsider Kesavananda Bharati. In the words of Justice Hans Raj Khanna, 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’”, wrote Soli Sorabjee a witness to the proceedings.

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Kesavananda Bharati is an iconic case. The largest Constitution Bench ever assembled, the hearing went on for two months, M C Chagla cried off due to old age, and C K Daphtary, too. The responsibility fell on Nanabhoy Ardeshir Palkhivala as destiny’s man. Judgement was out the day Chief Justice Sikri retired. A close call. There was not one but several opinions from the law lords. There was a summary drafted but signed by only nine of them. The multiple opinions, with six in dissent, meant that even the majority seven were not seen to ‘converge’.

Andhyarjuna, who was junior counsel to the legendary Hormusji M Seervai, who appeared for the State of Maharashtra, wrote a book, The Kesavananda Bharati case: The untold story of struggle for supremacy by Supreme Court and Parliament, vehemently denying that there was 7:6 majority or that there was a clear imprimatur from the apex court, as has been claimed since the judgement.

Andhyarjuna wrote, “Palkhivala for the petitioners had argued for ‘inherent and implied limitations’ or ‘essential features’ of the Constitution in which he included fundamental rights. This was accepted by Sikri-led six judges. Seven other judges, including Khanna, did not hold that fundamental rights could not be amended…It is important to note that Khanna rejected ‘implied limitations’ on the amending power is ‘essentially nebulous’.” Then, how did 6:7 become 7:6?

Andhyarjuna also wrote, “Even Palkhivala did not say there was a majority that saved fundamental rights from being amended by parliament. On the other hand, Nani drew the consolation that ‘something precious had been salvaged’ by the limitation on basic structure”.

According to Andhyarjuna, Kesavananda Bharati became a 7:6 majority not after the review attempt was aborted but only by a ‘special pleading’, unheard of, by Justice Khanna in the subsequent verdict in the Indira Gandhi case, when he ingeniously said, “I find it difficult to read anything in my judgement (Kesavananda Bharati) to justify the conclusion that fundamental rights were not part of the basic structure.”

Andhyarjuna’s response was sharp, “A judgement once delivered by a judge in court becomes law and comes into the public domain. It is not open to the author of the judgement to explain it or say later that he did not say what his judgement plainly reads. If any judgement is to be analysed for its meaning, it can only be done by another court and not by the author of the judgement.”

Interestingly, in a strange twist, Andhyarjuna’s senior, H M Seervai, who had argued against Palkhivala and dissented with verdict, later took Palkhivala’s side. The mystery never ceases in the case brought by Kesavananda Bharati, a seer in a Kerala ashram who was himself oblivious to the larger questions that had been raised and answered in court in the case. And to add to it, note that no record whatsoever is available in the Supreme Court as to why and in what circumstances a review was called for by Chief Justice A N Ray, or on why the reference was suddenly closed. Not a scrap of paper exists on this, they say. Why?

Yet, regardless of all this, Kesavananda Bharati is undoubtedly a milestone in India’s constitutional history and will ever remain one. Subsequent judgements and the evolution of law have confirmed that Kesavananda Bharati was a case that saved India from its own parliament. Or so I believe. But can it continue to do so?

(The writer is a practicing advocate in the Madras High Court)