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Adil Rustomjee is an investment advisor in Mumbai.

An estimated 21-minute read
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Part I

Buildup to Bharati

This year marks an unlikely milestone in the history of India’s judiciary. It is the 40th anniversary of both the Emergency and of the review petition that sought to overturn the most famous case in India’s judicial and constitutional history: Kesavananda Bharati vs State of Kerala. Both incidents serve as the high watermark of a period of confrontation between the executive and the judiciary, a period never essayed before or repeated since. It also marks the 40th anniversary of what is generally regarded as the finest court performance by a counsel in India — NA Palkhivala’s marathon nine-hour argument before the Supreme Court for the plaintiff, Kesavananda Bharati. Shockingly, the Supreme Court records do not even make mention of this episode on 10 and 11 November of that year. One of the most celebrated moments in India’s judicial history is not recorded in the annals of the apex court before whom the arguments took place.

The 1960s and 1970s mark the great epoch in the evolution of Indian Constitutional law.

The times were troubled.

Indira Gandhi bestrode the political landscape like an avenging Durga, determined to remake the country, in her, and her party’s image. India would bend to her knee, or break into pieces. Congress, always the party of the Left, was indulging in large-scale social engineering of a kind never attempted before. Refusing to acknowledge that there is such a thing as leaving mankind alone, the Congress systematically over a period of years, enhanced the role of the state in the name of socialism and intruded on individual rights, particularly the right to property. Bank nationalisation and privy purse abolition came in succession. Land reform and a series of acts to execute it, quickly followed. Large parliamentary majorities for the Congress were the norm and these were used to push legislation that favoured these policies. Much of this was to be challenged in court, and was to prove the backdrop to this tumultuous era in constitutional law.

Against this ranging Durga — made even more powerful by her victory in the 1971 war — there was pitted an intrepid band of constitutional lawyers, many of whom were enrolled at the Bombay Bar. Many were civil libertarians in the classic mould, though in the cut-and-thrust of daily court work, they rarely saw themselves as such. Because of this clash between the Durga and the libertarians, this era marks the turbulent yet fertile period of Indian Constitutional law, beginning with the Golaknath case of the late sixties, and ending with the Minerva Mills case of 1980.

The buildup to Kesavananda was marked by a series of cases – and decisions – that set the stage for the case itself. At the core of all these cases was the basic question: Was Parliament’s power to amend the Constitution unlimited, since it represented the will of the people and its majority, or was that power circumscribed when it came to certain fundamental rights of the people? In quick succession, came the Golaknath case, the Privy Purse case, and the Bank Nationalisation case.

They were to set the stage for the later clash.

The Kesavananda case had its roots in Golaknath vs State of Punjab, in which the Supreme Court in an 11-member bench, ruled that Parliament could not curtail any fundamental right guaranteed under the Constitution. To nullify the Golaknath verdict, Parliament enacted the 24th Amendment to the Constitution, laying down that its powers to amend the Constitution were unrestricted and unlimited. Two years after Golaknath, Indira nationalised a big portion of the banking system but the compensation to existing shareholders was paltry, in fact, almost extortionate. Rustom Cooper vs Union of India — known as the Bank Nationalisation case — again resulted in a loss for the government, as the Supreme Court struck down the compensation offered, while upholding the government’s right to nationalisation. The 25th Amendment made many changes in Article 31 (dealing with compulsory acquisition of property) following the Bank Nationalisation case.

Then came the abolition of privy purses to the princes. The privy purses had been a reassurance given at Independence, that was reneged upon by the government, and successfully challenged. The 26th Amendment, terminating the privileges and privy purses of the ex-rulers of the former princely states, was aimed at getting over the Supreme Court's ruling in the privy purses case. All cases had been argued by Palkhivala for the petitioners, and all of them resulted in the government’s defeat. Much of the issue turned around Articles 13 and 368 of the Constitution and Parliament’s right — under 368 — to amend any provision of the Constitution, including those that affected fundamental rights, as mentioned in 13.

On Locke, Seervai, and Palkhivala

Many of the battles in constitutional law rage around the title deeds to the modern liberal state, an idea going back to John Locke’s Second Treatise on Government, an idea which held that an individual may do anything except that prohibited by law, but a state may do nothing except that which is authorised by law. The issues often deal with profound philosophical and moral questions — the individual versus the state, habeas corpus, fundamental freedoms, property, the rights and obligations of the different entities within a state — the executive, the legislature, and the judiciary – and their separate relationship with one another. Its subject matter is inherently political, and politics is the authoritative allocation of power and values within a society.

This is also a country with the longest written Constitution in the world. As if that were not enough, this is also a country with perhaps the most amended constitution in the world. Since 1950, India has amended its Constitution 100 times; since 1789, the US Constitution has been amended just 33 times. Here, the battles take on an added edge. There’s just a lot more to argue about.

The practice of constitutional law is not very lucrative, for reasons that are not difficult to see. Often, one of the parties is the government. The other party is usually someone indigent, the little guy, sometimes even a terrorist. None of them pay very well. Yet it commands, by virtue of the issues it deals with, a peculiar and particular prestige in the legal profession. The constitutional lawyer who has it in his karma to be involved in a particularly important case enjoys a lasting historical renown that does not accrue to his cousin, the corporate lawyer, more well paid, but ultimately a technocrat slaving away at  the fine print of a merger transaction.

Saving India's democracy.

Kesavananda Bharati was to pit two such stalwarts against one another. Both were blessed with good karma, in that the peaks of their careers coincided with this turbulent period in Indian constitutional law. One had a strong civil libertarian core; the other an overwhelming sense of duty as the government’s first law officer. Nani Palkhivala, for the plaintiff, took on his friend Hormusji Seervai representing the State of Kerala. Both were assisted by a formidable battery of legal talent. Palkhivala was assisted by Soli Sorabjee and Anil Divan, and instructed by JB Dadachanji, Ravinder Narain, DM Popat, and ML Bhakta. Seervai, representing the government, had Niren De, Tehmton Andhyarujina, Lal Narain Sinha, Byra Reddy and Dr LM Singhvi. The case would even fray relations between them. Despite the consideration that the traditions of the bar enjoined them too, and despite the civility of the community both belonged to, the tensions of fighting the case would even — for a while — lead to a breakdown in personal relations between them.

To Hormusji Maneckji Seervai goes the distinction of turning down practically every legal position of note offered to a renowned lawyer. He rejected offers to both the Attorney General and Solicitor General’s positions, and then turned down a Supreme Court judgeship. Usually comfortable as the lawyer to the government — it was said there was “no more redoubtable defender of the government’s rights and privileges than Seervai” — , he had been for 17 years the Advocate General of Maharashtra. A lawyer’s lawyer, Seervai actually did not see himself as a political appointee, despite the intensely political nature of the post. A man of strong personal convictions, he would actually turn down government briefs if they conflicted with his beliefs, a practice unheard of today. The author of a distinguished work on constitutional law written between 1961 and 1967, he laboured on the book for 35 years over four editions.

Yet, in what was essentially a libertarian case, the association with the government was to be a difficult one. Perhaps, because of that association, Seervai’s instincts were off. This, despite the fact that there was nary a hint of an authoritarian streak to his nature or personality. Perhaps in Seervai’s case, he was always the government’s dutiful first law officer. The contrast to Palkhivala could not have been more pronounced.  Kesavananda Bharati was to see Seervai argue for 22 days — and lose. In Kesavananda, the foremost expert on constitutional law had lost the most famous case in his field — the one case that really mattered. Later in his life, after the dust had settled, and after the terrible and appalling experience of the Emergency, he would even admit to the error of his ways.

With Seervai’s conscience, there was no other way.

Reading Palkhivala’s speeches as ACC chairman brings out the sturdiness of his thought. Possessed of strong civil libertarian instincts and a forthright nature, speaking truth to power came naturally to him. To Palkhivala, a Constitution was a living breathing thing, written in words so vascular, that if you cut them they would bleed. Palkhivala had the technical mindset of the highly skilled lawyer, and was in fact known as a tax specialist. But that was elevated by wide reading and considerable rhetorical skills brought about by a liberal education — his basic training had been in literature.

A lawyer’s weapons are words, and these Palkhivala wielded with matchless ability and effect. To this, one must add a photographic memory and detailed knowledge of the law and its precedents. More unusual was his considerable economic and financial literacy, an atypical trait in Indian lawyers. The economic analysis of the law, a fertile and highly critical area right from the time of Coase, particularly in the law of regulation, continued to get short shrift in India. The lawyers were not economists, and the economists knew nothing about the law. Palkhivala, a self-taught economist by virtue both of his famous budget speeches and corporate career with the Tatas, was a notable exception to this rule.

Finally, there was a certain consummate skill at court-craft. After Palkhivala’s arguments, it was said that Supreme Court judges took their time writing judgments, so as not to be unduly swayed by the terrible force of his rhetoric.

Part II

The Review that Wasn’t

Your Lordships, the facts of the case suggest…

Kesavananda Bharati, then a young man in his 20s, and the hereditary head of a math in Kerala, had little idea that the case he filed would end up being such a landmark. Taking umbrage at the Kerala government’s attempt to impose restrictions on the management of religious property through land reform legislation, Bharati filed the suit questioning its constitutional propriety. The case came to the attention of Nani Palkhivala, who recognised its possibilities, particularly the prospect of challenging three Amendments — the 24th, 25th and 26th — to the Constitution.

Further, the 29th Amendment had added two Kerala Land Reforms Amendment Acts (1969 and 1971) to the Ninth Schedule, which was meant for acts that the state legislatures and Parliament wanted to keep beyond judicial review. Bharati subsequently challenged this Amendment, but as the challenges to the other Amendments raised similar issues, they were heard together. By then, the case had evolved into a dispute over Parliament’s power under Article 368 to amend the Indian Constitution.

Bharati became the lead petitioner since he filed the petition first; regardless, he did not have any role to play in the subsequent legal drama. The more the pontiff saw his name in the papers, the more concerned he became about the legal fees that he felt might be billed to him (the charges were nominal). In fact, Bharati claims he never met Palkhivala or ever spoke to him, perhaps one of the few cases in legal history, where a client never met his lawyer, on such a notable case.

The actual case of 1973 was decided in an atmosphere that while predating the Emergency, was still described as “poisonous” by Granville Austin.  It had a number of firsts to its credit that became part of judicial lore.  It was heard by the largest bench ever — 13 members — over the longest number of days — 68.  It was the longest judgment, covering 703 pages and the head notes of the SCC reported judgment alone run into 80 pages. The entire case came close to being reheard because of the illness of Justice MH Beg, who had to be hospitalised thrice. An artificial time constraint existed with the looming retirement of Chief Justice Sarva Mittra Sikri. If the hearings did not finish before his retirement, there was the possibility of going through them again with a new Chief Justice.  It so happens that the verdict was delivered on the Chief Justice’s last working day.

Rumours of court packing by the government were repeatedly raised, and depending on the proclivity of the listener, believed or denied.

The government’s case was not helped by the initial squabbling between Hormusji Seervai and Attorney-General Niren De over who would open the arguments for the defence. Since De was smarting from successive defeats after BankNationalisation and Golaknath, Mohan Kumaramangalam — Indira Gandhi’s point man and no mean lawyer himself — was keen that Seervai take up the matter. Seervai agreed, on the condition that he would open arguments.

This caused the usual dark grumblings and mutterings among lawyers in the corridors over how De as attorney-general should have had precedence, and opened. The matter caused friction between Seervai and De initially, which Palkhivala exploited when he opened for the plaintiff. The resolution came in the form of a face saver. When the government’s turn came to argue, De rose and announced that he had opened but would be travelling overseas for urgent work.

This left the field open to Seervai.

The actual ruling was something of a muddle. On the one hand, it overturned Golaknath and upheld the Centre's subsequent amendments. On the other hand, the Supreme Court reasserted itself vis-à-vis Parliament and reinforced the power of judicial review, holding that Parliament did not have the right to overturn the “basic structure” of the Constitution, especially when it came to guaranteeing certain fundamental rights.

This decision was made by a wafer-thin majority of 7:6, i.e., with six judges dissenting to the majority view. In the most controversial act of all, Chief Justice Sikri then went on to gerrymander a majority through a stratagem called “The View by the Majority”, in which a single-typed sheet was circulated on the bench and signed by 9 of the 13 judges, confirming the matter. The term “basic structure” itself had been used by just one judge, HR Khanna in his opinion, and finds first mention in this “View by the Majority”.  By this ‘basic structure doctrine', the Supreme Court strengthened the power of judicial review and, ipso facto, placed a limitation on the Parliament's power to amend the Constitution.

1975 and the review that wasn’t

In 1975, an attempt was made to review the Kesavananda Bharati case and reassert Parliament’s right to amend the Constitution.  Its circumstances are mysterious, but with the passage of time some of the events behind the episode have become clearer.  On an oral application by De before Chief Justice AN Ray, a review by a 13-strong bench was ordered by the Chief Justice. By now Indira had declared an Emergency and assumed dictatorial powers. Eight new judges had been appointed to the Supreme Court. Ray’s appointment itself had been controversial; he had bypassed three other judges to become Chief Justice.

Part of the earlier muddle from the Kesavananda hearing of 1973 carried forward to the review. A review petition needs a petition to review; it turns out that there was no petition to review in the first place. This was an astonishing omission for a case of this magnitude, as Andhyarujina points out.

The day before the review, Palkhivala in a highly dubious move, had addressed a letter to Indira. The letter itself made various political arguments against a review.

On 10 and 11 November, a team of lawyers — led by Palkhivala — continuously argued against the Union government's application for a review and reconsideration of the Kesavananda decision. A packed Central Court heard Palkhivala’s arguments against review on the first day — 10 November. Palkhivala, as Andhyarujina noted, was always a master of advocacy when he developed the unacceptable consequences of a situation in law. The review gave him another occasion to bring out those consequences.

Palkhivala argued that no case had been made to review the 'basic structure' doctrine. There had been only an oral request for a review, and no sign that the courts had any difficulty applying the theory. He said the Emergency was not the right time to argue a fundamental rights case. He then went on to the consequences of unbridled power of the government to amend, if the limitation of “basic structure” was removed. It must have taken remarkable fortitude to argue a case for fundamental rights in the middle of the Emergency. Justice Khanna, whose judgment coined the term “basic structure”, was to call it the finest performance by a counsel. Several observers believe he reached heights of advocacy not seen since.

Much of the argument turned on how and why the review had been ordered by the Chief Justice on the oral request of the attorney-general. Chief Justice Ray suggested it had come from the petitioners themselves, which Palkhivala decried as utterly absurd. How was this bench then constituted? On 11 November, the attorney-general appeared and could not make the case for a review. Some of the judges accepted Palkhivala’s argument on the very first day, the others on the next. By the end of the second day, the Chief Justice was reduced to a minority of one. On the morning of 12 November, Chief Justice Ray tersely pronounced that the bench was dissolved, and the judges rose.

The review had been abandoned.

To this day, there is no mention in the Supreme Court records of these events of November 1975.

In Justice Khanna’s view, the review that never was, had been as significant — if not more so — as the judgment itself. The review marked the last determined assault on the “basic structure” doctrine and would mark the beginning of its influence on constitutional and judicial theory. His view was echoed by Andhyarujina in his book about the episode. In fact, one of the most unusual opinions of the prominence of the review, comes 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 came to enjoy.

The year 1975, with its declaration of the Emergency and the attempt to repeal the Kesavananda judgment, must therefore stand as the high watermark of Indira’s assault on individual liberties, and of her party’s attempt to assert parliamentary privilege through brute majorities. When the review failed, the 42nd Amendment was passed, attempting to reassert Parliament’s right under Article 368, and cancel out the case’s verdict. The 42nd Amendment was itself then challenged in the Minerva Mills case, when it was nullified.

With the Minerva Mills case, Parliament lost the contest and the “basic structure doctrine” began to acquire the legitimacy it has subsequently enjoyed.

And where are they today ?

And what of the dramatis personae in the whole affair?  Some have been felled by old Father Time, but surprisingly, all these years later, some are still around. Perhaps sheer longevity is another trait of top lawyers.

The man who gave his name to the landmark case in Indian constitutional law, today portly and in his 60s, continues to head the math that started it all. Bharati, or rather Srimad Jagadguru Sri Sri Sankaracharya Thotakacharya Keshavananda Bharathi Sripadangalavaru is still the pontiff of the Edneer math in Kerala, a position he has held for over half a century, in fact since before the time of the case. As would be expected, the pontiff’s concerns continue to be spiritual rather than temporal. Curious law students visiting the ecclesiastic find him decidedly nonchalant on what the fuss was all about.

Palkhivala died at 82, the most celebrated lawyer of his generation. The powerful and restless mind had been destroyed by a series of strokes in his last years. Seervai, noted for his book on constitutional law, a work still in print and use, passed away at 89.  Soli Sorabjee was to inherit Palkhivala’s position as the Bhishma Pitamah of the legal profession, and is still around. JB Dadachanji, passed away in his eighties, and with him went the eponymous firm that bore his name. Tehmtan Andhyarujina went on to become a solicitor-general and wrote a well-received book on the episode.

Ravinder Narain continues to practice in the Supreme Court.

The legacy

And yet, for all its importance, Kesavananda Bharati actually left an ambigious historical legacy. The judgment left open as many questions as it answered. It said that Parliament could not interfere with the basic structure of the Constitution, but left open the question of what constituted “basic structure”. This continued to remain an elusive beast, its emergence justified less in legal theory than in terms of functionality. It was a “nebulous and subjective standard” as Andhyarujina, one of its sternest critics, is quick to point out. Over the years, the “basic structure” concept was enlarged to a smorgasbord of self-evident truths that include the supremacy of the Constitution; republican and democratic government; federal and secular character of the Constitution; maintenance of separation of powers; mandate to build a welfare state under the Directive Principles of State Policy; provision of socio-economic justice; liberty of thought, belief, expression, faith and worship; and equality of status and opportunity.

The judgment also refused to consider the right to property as a fundamental right that was covered by the 'basic structure' doctrine. Despite that, the right to private property, is more solid today, and yet not absolute, as it should be in a market economy. In property’s most important manifestation — land — the state possessed “eminent domain” till very recently. The legal quibbling about “compensation” versus “amount” which much of the judgment was concerned with, remains irrelevant today.  The government had attempted to do away with market-related compensation by substituting the word “amount” in legislation, thereby making easier its attempts at social justice through land reform.

Effectively, this amounted to expropriation by the state as there was no attempt to make that amount market related. Today, any legal attempt to do the same would be recognised as just that — extortionary expropriation by the state. Subsequent public policy itself got muddled on the issues with which Kesavananda dealt. Much of that muddle came from the clash between fundamental rights and the right to property on the one hand, and the ideals of social justice as embodied in the Directive Principles of State Policy, on the other.

In one aspect though, its legacy is unambiguous. It has led to the Indian Supreme Court becoming one of the most powerful in the world. Power, like nature, cannot stand a vacuum. The case has resulted in the judiciary taking over the vacuum that has resulted from a divided dysfunctional Parliament and an executive that is often in office, but not in power. So the ideas over which it was fought have now had their relevance reduced by the passage of time. What was seen as heresy then, is now an established commonplace. The idea that Parliament was a creature of the Constitution and draws its powers from it, is now well-established.

And yet, given the noted ahistorical nature of the Indian mind, the exact achievement of this band of constitutional lawyers has not got the public recognition it deserves. India, as is its wont, has moved on, taking for granted the hard won freedoms they fought for. What would have been the future of democracy 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 Palkhivala argued, in the destruction of the very foundations of our democratic polity?

Could it have led down the slippery slope to authoritarianism?

This article was first published on Firstpost and it has been republished with permission of the author.

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