Kesavananda Bharati Case - The untold story of struggle for supremacy by Supreme Court and Parliament

The case of His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala decided after the longest hearing of sixty six days in the Supreme Court by the largest bench of 13 judges of the Court on 24 April 1973 is India’s greatest Constitutional case. It is considered to have decided by a majority of 7 to 6 judges that Parliament did not have the power to amend the “Basic Structure of the Constitution”.

Though the case was cast in the form of a legal issue on Parliament’s power to amend the Constitution it was a culmination of a struggle for supremacy between the Supreme Court and the Parliament, which began with the Supreme Court holding in Golak Nath v. State of Punjab in 1967 by a majority of 6 to 5 that Fundamental Rights could not be amended by the Parliament. The Government of the day made the reversal of the Golak Nath case a political issue that the Court was preventing necessary amendments of the fundamental right to property for necessary economic reforms. In anticipation of a major legal battle in Court by a larger bench of thirteen judges, Government appointed judges who it expected would decide in favour of Parliament.

This book recounts the tensions and conflict in the Kesavananda Bharati case not only between the rival sides but also amongst the judges, some of whom had preconceived views because of being judges in the earlier cases and others by reason of their selection by the Government. The acrimony over the proposal to exclude Justice M.H. Beg who was in favour of Parliament by the Chief Justice and the Petitioners from the bench on this hospitalization almost at the end of the oral hearing is related as is the controversy over whether Justice Y.V. Chandrachud was prevailed upon to change his opinion against Parliament.

Most importantly, the book reveals the stratagem of the Chief Justice S.M. Sikri on the date of the judgments on 24 April 1973 by which he formulated on a paper hurriedly prepared by him "The View by the Majority.” This paper was signed in Court by 9 judges, 4 other judges refusing to subscribe their signatures to it. This has come to be known as the majority decision in the case.

The book relates how Government retaliated immediately on the judgments being pronounced on 24 August 1973 by superseding three senior most judges who had decided against Parliament and appointing Justice A.N Ray as the next Chief Justice. It also relates the generally unknown abortive attempt of Chief Justice A.N. Ray to review the Kesavananda Bharati case by another bench of 13 judges for two days in 1975. The Government attempted to nullify the majority view in the Kesavananda Bharati case by the Constitution (42nd Amendment) Act, 1976, but the Supreme Court later struck it down in the Minerva Mills case in 1980.

This book also shows how later cases of the Supreme Court have distilled the concept of the Basic Structure of the Constitution and how it has been considered in other jurisdictions.

This is a gripping story of the conflicts and tensions in the Kesavananda Bharati case and its aftermath which has not been disclosed so far. It is based on the author’s recollection and detailed notes maintained by him as a Counsel in the case and on later interviews by him with some of the judges in the case.