Kesavananda Bharati case

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The parliament’s power to amend the Constitution 

Dhananjay Mahapatra, Kesavananda Bharati: Seer behind statute’s ‘basic structure doctrine’, September 7, 2020: The Times of India

A30-year-old Kesavananda Bharati had approached the Supreme Court in 1970 with a writ petition challenging the contours of Parliament’s power to amend the Constitution which was argued by livewire and legendary lawyer Nani Palkhivala, who was then a youthful 53 years old. The Indira Gandhi government, which had won a massive mandate in 1971, was keen that through the Kesavananda Bharati case, the SC should overturn the subtle limitations the apex court had put on Parliament in amending the Constitution in the Golaknath case of 1967. The SC then had 16 judges and yet Chief Justice S M Sikri constituted a 13-judge bench, the largest-ever till date.

The judgment pronounced on April 24, 1973, was historic as well as tumultuous. Historic because 11 of the 13 judges wrote separate judgments. By a wafer thin margin of seven to six, the SC ruled that the party in office, with its brute majority in Parliament, could not amend the basic features of the Constitution, which famously came to be known as the ‘basic structure doctrine’. The seven judges, with Bharati and Palkhivala, formed the nine pillars who were part of this historic verdict, which became the touchstone on which the apex court continues to test the validity of laws.

Tumultuous because it angered the Indira Gandhi government, which wreaked vengeance on the three senior-most judges — Justices J M Selat, K S Hegde and A N Grover — by superseding them and appointing Justice A N Ray, who was part of the minority six judges, as the successor of then CJI Sikri, who retired a day after the verdict was pronounced. The three superseded judges resigned.

Another judge, Justice H R Khanna, was to pay a price for siding with the majority in the Bharati case and aggravating his “crime” against the government by giving the lone dissenting judgment in the ADM Jabalpur case in 1976 to rule that even during Emergency, right to life could not be suspended. He was superseded to the post of CJI by Justice M H Beg.

Attor ney general K K Venugopal said, “Bharati had approached my father M K Nambiar to argue the case. But because of his ill health, he had guided him to engage Palkhivala as his counsel. Bharati never realised that what he did was going to be so famous and well-known in the country that judges, lawyers and laymen would continue to recount it even half a century later.

“His case was the first of the writ petitions challenging a constitutional amendment. Nani did a tremendous job and came out with flying colours. Result is that three judges were superseded. But supremacy of the judiciary became established by that judgment.”

Former attorney general Soli J Sorabjee said, “Kesavananda Bharati did an enormous service to the people of India. The SC's verdict fortifying the basic features of the Constitution and putting it beyond the amending powers of Parliament will be remembered as a tremendous contribution in the evolution of constitutional jurisprudence. No tribute can be high for Palkhivala for the manner in which he argued the case”.

Senior advocate and constitutional expert Abhishek Manu Singhvisaid, “Two people made one legal doctrine the pride of India and the envy of the world. They were Bharati and Palkhivala. Their joint contribution in inventing the basic structure doctrine continues to ensure that India can never become a constitutional dictatorship”.

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