The  Judgement that made History


Manraj Singh

It is not new that strong leaders have tried to bend institutions to their will in our country’s history. There have been situations when democratic institutions have clashed. The pronouncement of  Kesavananda  Bharti  judgment by Supreme Court on 24th April , 1973 was one such instance. It was unprecedented for a number of reasons : anxious political circumstances in which it was delivered, the shift in the balance of democratic power it caused, the unprecedented number of separate opinions delivered by the court and the sheer length of the judgment itself.

This case is considered to be the one which saved Indian democracy. The history of the case lies in the numerous land reform laws passed by various governments preceding the judgment , in which they were challenged . The question before the court was how much amending power was granted to the Parliament under Article 368 and whether that power was unbridled and without any constraints , or could the courts review amendments?

The case came to the SC when Kerala passed its land reform laws which affected the property of Kesavananda Bharti , head of Edneer Math in Kerala. The legendary lawyer Nani Palkhivala seized the opportunity to challenge the validity of the law and previous amendments of the Constitution.  The petitioners in Kesavananda contended that the challenged amendments nullify some of the most cardinal principles of our Constitution and that Parliament could not draw authority from the Constitution to alter those very principles.

The court’s most significant decision, made by a thin majority of 7:6, was that although

Parliament had the powers to amend any part of the Constitution, it could not use this power to alter or destroy the ‘basic structure’- or framework- of the Constitution. Basic structure is the soul and core identity of the Constitution which cannot be altered. It is the foundation on which our Constitution stands. It is a list of features which are immune from amendments. No law can be made which violates this basic structure. Although there is no direct mention of this in the Constitution yet it is deeply ingrained in the text and history. This was the judiciary’s answer  and shield in response  to the attack of the Government’s amending power for protecting the rights of the people. This strengthens our democracy by limiting the powers of a majoritarian government to undermine the Constitution’s central ideals.  According to the SC, the basic structure comprises the supremacy of the Constitution, republican and democratic form of government, secularism, separation of powers between the legislature, executive and judiciary, and the federal character of the Constitution, dignity of the individual and free and fair elections.

Surith Parthasarthy opines that the thesis of  basic structure doctrine was rooted in the writings of German scholar  Dietrich Conrad. Conrad believed that even if a legislature were bestowed with the widest of powers to amend the Constitution, its authority was always subject to a set of inherent constraints. Parliament, he contended, was, after all, a creature of the Constitution. It cannot therefore, make changes that had the effect of overthrowing or obliterating the Constitution itself. As AG Noorani has pointed out, Conrad was affected by his own country’s history. In Germany, the virulent end brought to the Weimar Republic by Nazism had meant that when the country adopted its Basic Law in 1949, it quite explicitly placed checks on the legislature’s powers. This included a bar on lawmakers from amending those provisions of the Basic Law that concerned the country’s federal structure, that made human rights inviolable and that established constitutional principles such as the state’s democratic and social order.

Legally this judgment enhanced the scope of judicial review by courts by assuming the power to scrutinize all constitutional amendments. If Parliament had a free hand to amend the Constitution, the Supreme Court had a co-extensive power to review and invalidate any amendment that destroyed its basic structure. This made sure that politicians elected to make laws and represent the interest of people in legislature remain servants of the Constitution and  not become its masters. Hence power was balanced.

Political Outcomes

Zia Mody in her book ‘Ten Judgments that changed India’s History’ outlines the political outcomes of the judgment announced on 24 April, 1973. The then Chief Justice of India, SM Sikri was due to retire a day after the decision in Kesavananda —on 25 April 1973. The government was yet to announce his successor. As per convention, the senior-most judge of the Supreme Court is generally appointed as the Chief Justice of India. Were this convention followed, the Chief Justiceship would have been accorded to Justice Shelat followed by Justices Grover and Hegde. However, angered with the Kesavananda decision, the Government superseded these three judges who had ruled against it in Kesavananda. Instead, it appointed Justice  AN Ray, who had ruled in its favour, as the Chief Justice of India. This undermined the long- standing practice of appointing the senior-most judges of the Supreme Court. Justices Shelat, Grover and Hegde resigned in protest and the Indira Gandhi government’s attempt at muzzling judicial independence in the lead-up to the Emergency began in earnest.

Soon after, Raj Narain, Indira Gandhi’s political adversary, challenged her election to the Lok Sabha from the Rae Bareli constituency in the Allahabad High Court. He alleged that Indira Gandhi had committed corrupt practices under the Representation of the People Act, 1951. Accepting this contention, the court voided Indira Gandhi’s election. On appeal to the Supreme Court, the judgment of the Allahabad High Court was stayed, and it was held that Indira Gandhi could continue to function as the Prime Minister of India on the condition that she would not draw a salary and would not speak  or vote in the Parliament. The fallout of this judgment was that a National Emergency was proclaimed in India

During the pendency of the appeal, the Parliament hurriedly passed the Constitution (Thirty-ninth Amendment) Act, 1975, placing the election of the President, Vice-President, Prime Minister and Speaker of the Lok Sabha beyond the scrutiny of courts.  This is eerily similar to anti- people and anti democratic laws passed by dictators across the world throughout history. The amendment was meant to nullify the judgment of the Allahabad High Court so as to shield Indira Gandhi’s election from being challenged in the Supreme Court. As a result, in Indira Nehru Gandhi vrs. Raj Narain, that latter challenged the validity of the constitutional amendment itself—the first time a constitutional amendment was challenged not in respect of the right to property or social welfare, but with reference to an electoral law. By a majority of 4:1, the Supreme Court struck down the amendment, recognizing that it vitiated certain fundamental tenets forming part of the basic structure of the Constitution, including free and fair elections and the rule of law.

Our Constitution has always been secular and this envisages a secular state. The protection given to minorities under the fundamental rights; no state religion; equal treatment to all religions by the state; equality of all people before the law are examples of that. This secularism also forms part of the basic structure. However we regularly see politicians whipping up emotions, especially during elections by saying that Constitution shall be amended to make India a Hindu Rashtra; that secularism has not originally part of our Constitution etc. This is a case of misleading and lying to the people for their own needs. It is a fraud on the people and Constitution.

Another example is of elections. Free and fair elections are also part of basic structure. Although elections and voting to choose our legislator to govern over us is just one part of democracy, it is an essential one. Every year we see examples of mass killings in African countries during elections. Dictators come to power and then never resign from their posts. It is disheartening to see how some people in order to get elected spew poison to create divisions in society and create a narrative of “us vs them.” So they essentially win by cheating. This is why the role of the Election Commission becomes paramount. Our EC is also the envy of the world as we train and advise officials of other countries in election matters. But this rosy picture is distorted when we watch and read the news daily. Politicians flouting the model code of conduct; media taking sides with political parties, unfair censorship on some politicians while leaving out others etc., are all bad practices that needs to be checked by the EC. But the EC keeps forgetting that it has teeth with which it can bite and is not toothless.

It is because of enlightened citizens and progressive jurists like Palkhivala and astute judges that India still remains a democracy. Governments will come and go but the country will remain . People in most parts of the world do not enjoy the freedoms Indians enjoy and the right to vote or to approach a court to pull up a Govt department; express an opinion on any subject, cultural diversity and protection etc.  It is our duty to make sure that we protect this sacred living document and live up to the expectations of  the founding fathers of our Constitution and freedom fighters.


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