The Swamiji who protected our constitutional rights

 There cannot possibly be a judgment more important than this 1973 verdict for the preservation of our democratic traditions

Published: 25th September 2020 06:35 AM  |   Last Updated: 25th September 2020 08:24 AM   |  A+A-

tapas ranjan

The news of the demise of Shri Kesavananda Bharati Sripadagalvaru, head of the Edaneer Mutt in Kasargod, Kerala, earlier this month brings back memories of one of the most memorable cases in India’s legal history. This resulted in a landmark judgment of the Supreme Court that fortified the essential features of our Constitution and shielded them from potential parliamentary attack. 

The court propounded the basic structure doctrine to erect these fortifications in this case, which was triggered by the Swamiji’s petition in 1972 challenging a couple of land enactments in Kerala and three amendments to the Constitution, which, among others, deprived him of his fundamental right to practise his religion and manage his religious affairs (Articles 25 and 26).

The case—His Holiness Kesavananda Bharati Sripadagalvaru vs State of Kerala (1973)—and the consequences of the apex court’s judgment for our constitutional well-being are so immense that it must be told and retold for the benefit of every generation, so that they may understand the importance of fundamental rights and independent institutions for them to breathe the free air of democracy.

This case had many firsts. It was heard by a 13-judge Bench, the largest constituted in the apex court’s history; the court heard the arguments for 315 hours over 70 days; Nani Palkhivala, the legendary lawyer, argued the case for the Swamiji for 33 of those 70 days; and, finally, the court delivered its historic verdict and said that while Parliament had the power to amend any part of the Constitution, it cannot abrogate its “basic structure”.

This decision of the court has provided the citizenry with a vajra kavach (a protective armour), which will enable them to experience and cherish the core values in our Constitution, irrespective of electoral outcomes and political upheavals. It is also a decision that has blessed the country’s supreme text, which was sought to be mutilated by the Indira Gandhi government during the dreaded Emergency, with longevity and shielded it from forces inimical to the values embedded in it. 

The basic structure doctrine and its inviolability was propounded by seven of the 13 judges on the Bench headed by the then Chief Justice S M Sikri. The court held that the following elements constitute the basic structure: supremacy of the Constitution; republican and democratic form of government; secular character of the Constitution; separation of powers between the legislature, executive and judiciary; and the federal character of the Constitution.

The Chief Justice and the other judges in majority dwelt at length on the meaning of the word “amendment” in Article 368. They held that Parliament had the power to amend the Constitution, “but not so as to result in damaging or destroying (its) structure and identity”. A creature of the Constitution cannot devour the Constitution itself. 

The Supreme Court reiterated the Doctrine of Basic Structure in several cases after Kesavananda Bharati and thereby etched these principles in stone, as it were, never to be tampered or trifled with. These cases include Indira Nehru Gandhi vs Shri Raj Narain (1975) and Minerva Mills Ltd Vs Union of India (1980). With the passage of time, many other elements have been added to the definition of basic structure including the objectives prescribed in the Preamble, the balance between fundamental rights and directive principles, and judicial review, to name a few.

The value of this judgment for the citizenry is immense because supremacy of the Constitution means no individual, institution or ism can get a perch above it and the egalitarian and democratic values enshrined in it gain permanency; republican form of government means the right of citizens to have an elected head of state like President Ram Nath Kovind and not a monarch or a scion of any particular family; secularism ensures that the state has no religion; separation of powers is a guarantee against aggregation of powers of all three estates into one entity; and finally, the preservation of the federal features protects the rights of states outlined in the Constitution.

Later during the Emergency in 1975, a sinister attempt was made by the Indira Gandhi government to overturn Kesavananda Bharati when it got Chief Justice A N Ray to constitute another 13-judge Bench to reconsider this judgement. Once again, Palkhivala rose to the occasion and argued so eloquently and vehemently against Justice Ray’s move that the latter dismantled the Bench and abandoned the move within two days. M V Kamath, Nani Palkhivala’s biographer, quotes one of the judges as saying “never before in the history of the court has there been a performance like this”. Another judge said: “It was not Nani who spoke.

It was divinity speaking through him.” In his autobiography, Justice H R Khanna says “my feeling and that of some of my colleagues was that the height of eloquence to which Palkhivala rose on that day had seldom been equalled and never surpassed in the history of the Supreme Court”. Kamath and Granville Austin, the most authentic chronicler of independent India’s constitutional history, record many uncomfortable truths about the Kesavananda Bharati case and after, which tell us how perilously close we were to losing the most precious gift given to us by the founding fathers.

One wonders whether there can be a judgment more important than this for the preservation of our democratic traditions. This is therefore a moment to pay tribute to the Swamiji for his decision to move the apex court to protect his constitutional rights, and, willy-nilly, the basic rights of 1,350 million Indians. This is also a moment to salute his lawyer, Nani Palkhivala, who propounded the basic structure theory in his arguments and convinced the court to adopt it in Kesavananda and thereafter.

Vice-Chairman, Executive Council, Nehru Memorial Museum & Library


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