Musings on the Constitution—LXX Narasimhan Vijayaraghavan

Musings on the Constitution—LXX
Narasimhan Vijayaraghavan

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.
Shri Kesavananda Bharati or officially, Srimad Jagadguru Sri Sri Sankaracharya Thotakacharya Keshavananda Bharathi Sripadangalavaru (also known as Edneer Swamiji or Pontiff of Edneer/Kerala Shankaracharya or Shankaracharya of Kerala) is the present pontiff (Guru) of Jagadguru Sri Sankaracharya Thotakacharya Samsthanam, Edneer Mutt in Kasaragod district of the state of Kerala. He is the follower of unique Smartha Bhagawatha tradition and Advaita Vedanta. The story goes that Kerala Land Reforms Act, 1963 impacted the properties belonging to his institution and a challenge was made. Pending the litigation Parliament introduced 29th Amendment to the Constitution parking land reform law in the Ninth Schedule of the Constitution to take them outside the pale of judicial review.
Justice A N Ray Justice D G Palekar Justice K K Mathew

Justice M H Beg Justice Y.V. Chandrachud Justice S.N. Dwivedi

Six writ petitions- one by Keshavanand Bharati, two by erstwhile rulers, one each by those with mining, coal and sugar interests, were launched before the Supreme Court, including challenges to the 24th and 25 Amendments too. There were 20 intervenors, a record of sorts then. Nani Palkhivala led the charge as the lead counsel. He had never met Keshavanand Bharati ever and he came to argue the writ petition which was listed in his name. Already Palkhivala was peeved with the likes of Golaknath and Sankari Prasad verdicts and wanted to go beyond and ensure that the Constitution as lovingly put together by our patriotic framers was not trifled with by the politicians in the garb of amendments . The issue was one of Whether Parliament had unfettered power to amend the Constitution under Art.368 or there were limits to the said remit? Per contra, the Government took a defiant stand that Parliament’s jurisdiction to the amend the Constitution was ‘limitless and only short of repealing it”. A fascinating battle broke out.

It was no easy task. The dice was loaded against Palkhivala and his dedicated team. The entire complement of thirteen judges of the Supreme Court- Chief Justice S.M.Sikri, Justices A N Grover, A N Ray, S.M.Sikri, Justices A N Grover,, K K Mathew, K S Hegde, M H Beg, P Jaganmohan Reddy, S N Dwivedi and Y V Chandrachud-assembled to hear it. They heard the cause for 5 months. The hearing concluded on 22nd March,1973. Written Submissions were filed on 28th March. There was an urgency as Chief Justice was slated to retire on 25th April,1973 and a couple of others on the bench were not keeping well .The judgment came to be delivered on 24th April,1973.

It took quite a while (an unfair while as T R Andhyarjuna who assisted H M Seervai wrote in his short and crisp work in The Keshavanand Bharati case The untold Story of struggle for supremacy by Supreme Court and Parliament). There were eleven separate opinions handed out by the 13 judges and there was no one ‘convergent finding’. This led to doubts on the ‘accuracy of the findings’. Interestingly, for the first time, there was a Summary attached to the 703 pages verdict, which only Nine signed (Chief Justice S.M.Sikri, Justices A N Grover, S.M.Sikri, Justices A N Grover, P Jaganmohan Reddy, Y V Chandrachud) – and four (A N Ray, K K Mathew, M H Beg and Dwivedi) did not sign, as they felt not an ‘accurate summary’. Some historical milestone this!

While 9 of the eleven judges overruled specifically the verdict in Golaknath.only 6 of them held that ‘fundamental rights were an essential part of the Constitution’. Justice H R Khanna is not found to have joined with the 6. Then how did Kesavanand Bharati become a majority of 7:6?
Cut to T R Andhyarjuna for a delightful constitutional coup of sorts.
“…judges who were part of the Kesavanand bench also did not think that Justice Khanna , J had made fundamental rights part of the basic structure. Two and half years later uin the India Gandhi Election case in 1975 Justice Chandrachud clearly stated of justice Khanna’s judgment in the Keshavanand Bharati’s case “
“Khanna J held that fundamental rights were not part of the basic structure and therefore they can be abrogated like many other provisions” (Indira Gandhi vs Sri Raj Narain)”
Andhyarjuna adds for emphasis,
“…three of the judges ( Chandrachud, KK Mathew,AN Ray) of the Keshavanand bench in the Indira Gandhi case did not think that Justice Khanna had made Fundamental Rights part of the basic structure”.
This is getting suspenseful, intriguing and mysterious . Then, how did 6:6:1 morph into 7:6?. Let us tell it like it was or is in Andhyarjuna’s own words, as he was a live actor in the drama.
“But Justice Khanna in his judgment in the Indira Gandhi case said that he ‘found it difficult to read anything in my judgment to justify the conclusion that fundamental rights were not part of the basic structure. He said:
“It has been stated by me on page 685 ( SCC p.767) of the judgment that the secular character of the State, according to which the State shall not discriminate against any citizen on the ground of religion only cannot liewise be done away with.The above observations show that the zsecular character of the constitution and the rights guaranteed by the Article 15 (sic-25) pertain to the basic structure of the Constitution. The above observations clearly militate against the contention that according to my judgment fundamental rights are not part of the basic structure of the Constitution. I also dealt with the matter at length to show that the right to property was not a part of the basic structure of the Constitution. This would have been wholly unnecessary if none of the Fundamental Rights was a part of the basic structure of the Constitution.” Nehru Gandhi v. Raj Narain.

“With all respect which we must have Justice Khanna, this clarification appears to be a special pleading. In his judgment in the Kesavananda case, the saving of secular character of the Constitution was not said as arising from Fundamental Rights but as a basic feature of the Constitution like democracy, etc.
“A judgment once delivered by a judge in court becomes law and comes into the public domain. It is not open to the author of the judgment to explain it or to say later that he did not mean what his judgment plainly reads. If a judgment is to be analysed for its meaning, it can only be done by another court and not by the author of the judgment.
“Thus, a clarification given by Justice Khanna two and a half years after his own judgment and a so-called ‘misapplication of the law’ by him has become the law declared by the Supreme Court in the Kesavananda case.”
In fact, one of the most unusual opinions of the prominence of the review, came from Andhyarujina himself. According to him,

‘it was the unusual urgency of the review — done so obviously for political mileage in the darkest chapter in Indian democracy, the Emergency — and its subsequent cancellation, that gave Kesavananda and the basic structure doctrine its subsequent prominence. It was the aborted review, and the Emergency itself, that gave the case the legitimacy and prominence it has come to enjoy. Nani Palkhivala was in the thick of it all.’

The suspense and the drama was not finished yet. The manner in which Indira Gandhi government sought to ‘review’ the Kesavananda verdict was ‘near skulduggery’ as a commentator put it. Indira government was peeved that the supremacy of Parliament was slighted and political leadership wanted to get even. And how?
It was possibly Constitution’s finest and darkest hour simultaneously. It has not failed to amaze anyone then or now.
(Author is practising advocate in the Madras High Court)