45 years on, recalling Kesavananda Bharati, the verdict that identified the basic structure of the Constitution

In Kesavananda Bharati vs State of Kerala, the court ruled that the basic structure of the Constitution is inviolable, and could not be amended by Parliament.

Written by Bishwajit Bhattacharyya | Updated: April 24, 2018 8:08:49 am
The majority that delivered the landmark verdict in the Kesavananda Bharati case on April 24, 1973, (from left) then Chief Justice of India S M Sikri, and Justices J M Shelat, K S Hegde, A N Grover, P Jaganmohan Reddy, A K Mukherjea and H R Khanna

On April 24, 1973, exactly 45 years ago, a 13-judge Constitution Bench of the Supreme Court restrained, by a 7-6 verdict, Parliament from altering the “basic structure” of the Constitution. In Kesavananda Bharati vs State of Kerala, the court ruled that the basic structure of the Constitution is inviolable, and could not be amended by Parliament.

“Basic structure” was interpreted to include the supremacy of the Constitution, the rule of law, independence of the judiciary, doctrine of separation of powers, federalism, secularism, sovereign democratic republic, the parliamentary system of government, the principle of free and fair elections, welfare state, etc.

The majority opinion was delivered by Chief Justice of India S M Sikri, and Justices K S Hegde, A K Mukherjea, J M Shelat, A N Grover, P Jaganmohan Reddy, and H R Khanna. Justices A N Ray, D G Palekar, K K Mathew, M H Beg, S N Dwivedi, and Y V Chandrachud dissented.

Indira Gandhi was a powerful Prime Minister then, having been in the post since January 24, 1966. Her government was upset with the Kesavananda verdict, and struck back immediately with a powerful blow to the independence of the judiciary. Justice A N Ray, who was among the six dissenting judges, took over as the 14th Chief Justice of India on April 26, 1973, superseding Justices Shelat, Grover and Hegde, who were on the side of the majority in the case.

Political machinations to overturn the verdict followed. Attorney General Niren De moved the Supreme Court without even filing a review petition. Incredibly, CJI Ray, as the Master of the Roster, arbitrarily constituted a 13-judge Bench to review the verdict. Constitution of a Bench for review of the verdict without a review petition having been filed was unprecedented.

As the review hearing commenced, there was speculation that Justice Ray’s dissenting opinion of 1973 would be converted into CJI Ray’s majority opinion in 1975. After two days of impassioned arguments, on November 12, 1975, CJI Ray abruptly dissolved the 13-judge Bench. He had been forced to yield under immense peer pressure, and the institutional integrity of the Supreme Court was restored. But CJI Ray’s reputation was damaged irreparably.

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Meanwhile, on August 10, 1975, the 39th Amendment introduced Article 329A into the Constitution, placing the election of the Prime Minister and Speaker of Lok Sabha beyond judicial review. The Amendment, passed during the Emergency, validated the election of Indira Gandhi after she was unseated on June 12, 1975 by the Allahabad High Court for indulging in corrupt electoral practices. [Article 329A was repealed by the 44th Amendment in 1979.] The SC struck down Articles 329A(4) and 329A(5) as being violative of the basic structure of the Constitution. Even as Indira Gandhi’s appeal was pending before the Supreme Court, Parliament validated her election by amending the Constitution. This amounted to Parliament performing a judicial function in violation of the doctrine of separation of powers, a basic structure of the Constitution. The Kesavananda verdict had been defied by an authoritarian regime — which had to be corrected by the Supreme Court in the case popularly known as the election case, Indira Gandhi vs Raj Narain.

April 28, 1976, was the darkest day in India’s constitutional history. In ADM Jabalpur vs S S Shukla, a Constitution Bench of the SC held by a majority of 4-1 that fundamental rights were suspended during an Emergency. CJI Ray and Justices Beg, Chandrachud and P N Bhagwati gave the majority verdict; Justice H R Khanna alone dissented courageously. The great judge was then superseded by Justice Beg, who became the 15th CJI on January 29, 1977. All the four judges who wrote perhaps the worst judgment in India’s constitutional history became CJIs; two of them — Justices Ray and Beg — by superseding their seniors.

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On October 16, 2015, in the National Judicial Appointments Commission verdict, delivered by a 4-1 majority by a five-judge Constitution Bench, the Supreme Court struck down the 99th Amendment (by which the NJAC was set up) as being violative of the independence of the judiciary and, therefore, of the basic structure of the Constitution. The constitution of the NJAC had sought to strike a crippling blow to the independence of the judiciary — with the Union Law Minister, the representative of India’s biggest litigant, the government, being made part of the process to select/appoint judges. Kesavananda had rescued India’s democracy yet again — but even 30 months after the NJAC verdict, the government continues to defy the Supreme Court’s directive to “finalise the existing Memorandum of Procedure by supplementing it in consultation with the Chief Justice of India… (who) will take a decision based on the unanimous view of the collegium comprising the four senior-most puisne Judges of the SC”.

The author is a former Additional Solicitor General of India and a senior advocate at the Supreme Court. He was a Petitioner in Person in the NJAC case.

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