On April 24, 1973, a bench of 13 judges delivered the landmark ruling in Kesavananda Bharati v. State of Kerala, popularly known as the Fundamental Rights case. The hearing of this case commenced on October 31, 1972 and concluded on March 23, 1973 — a total of 66 working days as the case was heard every Tuesday, Wednesday and Thursday. The judgment of 703 pages was a split verdict. By a wafer-thin majority of 7:6, it came to one core conclusion: “Parliament cannot alter the basic structure or framework of the Constitution.” This single sentence is responsible for India continuing as a democracy over the last 50 years.
N A Palkhivala appeared for the petitioners, and on the other side was the then Attorney-General Niren De, Solicitor-General Lal Narain Sinha and the noted constitutional scholar H M Seervai.
What were the events that led to this historic judgment? Within a few days of the Constitution coming into force, land reform laws acquired large estates without adequate compensation and these were struck down as being violative of the fundamental right to property under Articles 19(1)(f) and 31. Parliament swiftly made the first amendment to the Constitution in 1951, creating the Ninth Schedule. Any law placed in this Schedule could not be questioned in any court of law. In 1951, in Shankari Prasad Singh Deo v. Union of India, the Supreme Court upheld the First Amendment and held that Parliament’s power to amend any part of the Constitution was untrammelled. In the next 15 years, our Constitution was amended no less than 17 times and the Ninth Schedule which had only 13 Acts, now had 64.
The power of Parliament to amend any part of the Constitution was once again questioned in 1965 in Sajjan Singh v. State of Rajasthan and, for the first time, two out of the five-judges — Justices Hidayatullah and Mudholkar — pressed the pause button and asked whether the Parliament could take away even the critical fundamental rights? Justice Mudholkar asked the important question: If the Constitution is amended and the right to equality, free speech or the right to life and liberty were taken away, are we “amending” the Constitution or substituting a new Constitution?
Two years later, the pendulum swung to the other end in the famous Golaknath case of 1967 and the Supreme Court held, by a majority of 6:5, that Parliament had no power to amend or take away any of the fundamental rights. The nationalisation of banks in 1969 and the abolition of privy purses were struck down and Mrs Gandhi introduced the 24th, 25th and 26th amendments to nullify these rulings. The 29th amendment that added two Kerala laws to the Ninth Schedule was challenged by Kesavananda Bharati.
Certain former rulers, mining and coal companies also filed writ petitions challenging the other amendments and all cases were heard together. A bench of 13 judges became necessary as the earlier Golaknath case was heard by a bench of 11 judges.
In the judgment different judges gave their own version of what constituted essential or basic features. Six out of the 13 judges held that the power of Parliament to amend the Constitution was unlimited. Justice Khanna agreed but held that the power of Parliament to amend the Constitution, although extensive, did not extend to alter or take away its basic structure or essential features.
Thus, the basic structure doctrine became part of our constitutional doctrine by a slender margin of 7:6. The judgment rightly did not define what would be the basic structure or the essential features, it is now well accepted that these include the principles of federalism, secularism, separation of powers, independent judiciary and free, fair and period elections. None of these features can ever be taken away.
Justice Sikri retired a day later and Justice A N Ray was appointed as Chief Justice, for the first time superseding three senior judges who had ruled against the Union — these three promptly resigned.
During the Emergency, a bench of 13 judges was mysteriously constituted by Chief Justice Ray to reconsider the Kesavananda Bharati verdict. The review was heard on November 10 and 11, 1975. In answer to the query as to who had asked for the review, Justice Ray pointed out that the State of Tamil Nadu had done so. The then Advocate-General boldly stated that no such review was asked for by his state, seriously embarrassing Chief Justice Ray. The next day the bench was abruptly dissolved, thus ending the clumsy attempt to review the basic structure doctrine. Justice Khanna has written that Palkhivala’s arguments in the review reached heights of eloquence and advocacy that have remained unsurpassed.
Prashant Bhushan, who heard the review petition, has recorded the heated exchanges between the judges and Palkhivala, in his book, The Case that Shook India, and one of them was: “Justice Beg: You see, I don’t know what these basic features are.
Palkhivala: With the greatest respect, My Lord, it is inconceivable that the Supreme Court cannot understand its own judgment. If the Supreme Court cannot understand its own judgment, who will? I have absolutely no doubt in my mind as to what the basic features are, and anybody who reads the judgment carefully cannot have any doubt.”
Constitutional amendments made during the Emergency and in later years show that it was the basic structure doctrine that prevented constitutional and fundamental rights from being eroded, if not destroyed. Nothing can better emphasise the importance of the basic structure doctrine than this exchange during the review hearing:
“Justice Murtaza Fazl Ali: Suppose the Kesavananda Bharati decision had gone against you, would you not have been entitled to come and ask for a review now. So, why should you object to the government asking for a review?
Palkhivala: Let me answer this without any flippancy, my Lord. If the Kesavananda Bharati decision had gone against us, then there would be no Supreme Court today before which I could come for a review.”
The writer is a senior advocate
