Today, a very special Indian cricketer celebrates his 50th birthday. The nation’s only sporting Bharat Ratna and the world’s highest run-getter, Sachin Ramesh Tendulkar has etched his name onto the psyche of the Indian cricket fan like almost no other. But this piece is about something else that happened that day which has left an indelible impression on our republic.
On the morning of April 24, 1973, 13 judges shuffled into the court of the Chief Justice of India and began to deliver a judgment that would set into motion a series of events which put the executive on a collision course with the judiciary. The lead petitioner in the batch of cases was the 29-year-old chief pontiff of the Edneer mutt in northern Kerala, Kesavananda Bharati. The state had sought to acquire the mutt’s property using the amended Kerala Land Reforms Act. In one of those remarkable coincidences of the cosmos, Bharati happened to first approach Meloth Krishnan Nambyar, India’s first great constitutional lawyer. Reams have been written of how Nambyar inaugurated Indian constitutional law by arguing before the new born Supreme Court in 1950 on behalf of the great communist leader A K Gopalan, challenging his detention. His innovative interpretation of Article 21 and due process was denied at the time, only to find acceptance in the late 1970s and lay the foundation for celebrated judgments on liberty, natural justice and privacy.
In 1967, Nambyar postulated a theory that there are inherent limitations on the government’s powers to amend the Constitution. This was rejected by the 11-judge bench in the Golaknath case, but barely seven years later, when Bharati approached him, a glimmer of light appeared on the horizon.
As Bharati revealed in an interview a few years before his demise in 2020, Nambyar, then fairly advanced in years and infirm, dictated the draft of the petition that would be filed in the SC and directed him towards the other great doyen of the era, Nani Palkhivala. The latter led the attack on the Constitutional amendments that had been brought in by Indira Gandhi’s government to nullify the reverses suffered on land reforms and the nationalisation of banks. After a marathon hearing spread over the winter of 1972 before the largest bench ever constituted by the Court, the nation waited with bated breath for the day of reckoning.
The days preceding had not been without drama. Justice Beg had taken ill, and with Chief Justice Sikri set to retire on the 26th, the likelihood of a judgment seemed remote. There were meetings of judges with counsel to find a solution, attempts by ministers to influence outcomes, and as the days wore on, the chances of a majority view being cobbled together appeared to be in jeopardy.
As judge after judge read out their opinions, it looked like it would be close. The idea of parliamentary supremacy had been presented by the government as a counter-point to the “basic structure” argument, and it seemed that many judges had bought it. Eventually, with the verdict of Justice H R Khanna, the petitioners prevailed by 7:6, carving into the Constitution the foundational ideal that would later be followed by Bangladesh, Malaysia and Pakistan.
That evening, All India Radio would announce the appointment as Chief Justice of the dissenting Justice A N Ray, thereby infamously superseding the senior Justices Shelat, Grover and Hegde who were in the majority — they promptly resigned. The next five years would be a period of upheaval, with Mrs Gandhi’s election case, an aborted attempt to overrule, with a Bench of 15 judges, the obnoxious 42nd Amendment and the Emergency.
But, what survived and has now taken firm root is the idea of certain essential values that keep the Republic afloat — the right to judicial review, to the basic norms of liberty and equality, of free and fair elections, of an independent judiciary and a federal structure. India’s strongest shield against an autocrat’s whim continues to keep any riotous misadventure or authoritarian impunity at bay. It would be fitting that the nation honours its architects Nambyar and Palkhivala with a recognition not accorded to an advocate so far — the Bharat Ratna.
The writer is Senior Advocate, Supreme Court of India
