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The inside story

Mukund Padmanabhan
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The politics of the Kesavananda Bharati case and how it influenced its outcome

THE KESAVANANDA BHARATI CASE — The Untold Story of Struggle for Supremacy by Supreme Court and Parliament: T.R. Andhyarujina; Universal Law Publishing Co., Pvt. Ltd., C-FF-IA, Dilkhulsh Industrial Estate, G.T. Karnal Road, Delhi-110033. Rs. 295.
THE KESAVANANDA BHARATI CASE — The Untold Story of Struggle for Supremacy by Supreme Court and Parliament: T.R. Andhyarujina; Universal Law Publishing Co., Pvt. Ltd., C-FF-IA, Dilkhulsh Industrial Estate, G.T. Karnal Road, Delhi-110033. Rs. 295.

Mukund Padmanabhan

It is one of the ironies of the history of India's constitutional jurisprudence that its seminal case was filed over a land issue by a man who was largely unaware of its importance. When Swami Kesavananda Bharati Sripadagalavaru, the head of a Kerala math, challenged the State government's attempt to impose restrictions on the management of religious property, he — as well as many others — could not have anticipated that the case would revolve around the much larger issue of the extent of Parliament's power to amend the Constitution.

By a judicial innovation that has come to be known as the ‘basic structure doctrine', the Supreme Court strengthened the power of judicial review and, ipso facto , placed a limitation on Parliament's power to amend the Constitution.

The purpose of A.R. Andhyarujina's eminently readable book, The Kesavananda Bharati Case , is not principally to analyse the judgment but to lay bare the machinations of various people and the overcharged ‘political' atmosphere in which the case was heard and decided. The author suggests that since the unflattering background of the case influenced the judgment, the former has an essential bearing on how we should examine the case and its outcome.

The Kesavananda case, of course, had its roots in Golak Nath v. State of Punjab , in which the Supreme Court ruled that Parliament could not curtail any fundamental right guaranteed under the Constitution. But the judgment in the former, heard by a 13-member constitutional bench, went well beyond an examination of the validity of the latter. Andhyarujina suggests that the battle lines were drawn before the case got under way and the divisions reflected in the very composition of the bench. One the one hand, there were the judges — including Chief Justice S. M. Sikri — who heard the Golak Nath case and had predetermined views about Parliament's amending power. The writer correctly draws attention to the impropriety of this. At the same time, he acknowledges that the Indira Gandhi government packed the Supreme Court with judges “expected to decide in its favour.”

The author's account of the behind-the-scenes conflicts in the case — between respondents, between rival counsels, between counsel and court, and between the judges themselves — is fascinating. There are chapters on the illness of Justice Beg, which set off rumours and caused a strain on a case that Chief Justice Sikri wanted to see through before his retirement.

A short chapter on Justice Chandrachud's judgment supporting Parliament's full amendatory powers discusses the issue of whether he was persuaded to change it, a question not answered conclusively. If such concerns escape being trivial, it is because of the staggering importance of the case, its inside story not only important for setting the “political background” against which it was heard but also relevant to the strain on judicial norms that was present during its hearing.

View of the majority

More importantly, the author recounts how Justice Sikri hurriedly arrived at the controversial ‘View of the Majority', a less than convincing summary of 11 disparate judgments that concluded, among other things, that Parliament does not have power to alter the basic structure of the Constitution — a view fully reflected in the conclusion of only one judge (Justice Khanna).

But what of the basic structure doctrine itself? The author was the junior of H.M. Seervai, who represented the State of Kerala in this case; not surprisingly, his views are similar to his mentor's and that of some other commentators who have drawn attention to the vagueness and subjectivity of the basic structure doctrine, its emergence justified less in strict legal theory than in terms of functionality. Andhyarujina quotes Granville Austin in Working a Democratic Constitution to the effect that the nine judges who eventually signed the ‘View of the Majority' had performed “an act of statesmanship, even of legerdemain.” The judgment may indeed be seen as a fine balancing act. On the one hand, it attempted to placate the Centre by overruling Golaknath and upholding the Centre's subsequent amendments. On the other, the Court asserted itself vis-à-vis Parliament and reinforced the power of judicial review.

But even if legerdemain played a role in the outcome, what of Austin's view that the Supreme Court rose to the occasion “to save the Constitution.”? What would the future of democracy in India have been had the Court given Parliament — dominated by a government with distinctly authoritarian tendencies — the total leeway to amend the Constitution? Could it have resulted, as Nani Palkhivala argued, in the destruction of the very foundations of our democratic polity? Could it have been the slippery slope to authoritarianism?

Andhyarujina does not address such questions in the book. Given his emphasis on the political nature of the case, it would have been appropriate had he dwelled a little on its functional impact on the country's polity.


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