The most important judgement in India?

In 1973, Kesavananda Bharti, the head monk of the Edneer Mutt in Kerala unknowningly and unwillingly made history when he decided to go ahead and file a petition in the supreme court against the Government of Kerala in a land dispute case. This kicked off a chain of incredible events that ended up strengthening our democracy!

Today’s episode takes you down that rabbit hole and unravels some of this mystery for you!

Show Notes

All clips and voices used in this podcast are owned by the original creators

Links to clips used in this episode —

• Emergency of 1975 – DD News – https://www.youtube.com/watch?v=gzJY-Z-KRMw&t=59s

Full Transcript of Episode 29 –

Kesavananda Bharati: The head monk of Kerala’s Edneer mutth. A monk, an expert in Carnatic music and a patron of Kannada education. In fact, a few days ago, on 6th September, 2020, he passed away. 

Now let’s talk about: Our democracy. 

The Indian constitution. Fundamental Rights and the friction (tanaav) between the Government and the Judiciary.

Doston, these are two different worlds. So, why am I talking about them together?

Because there’s a unique connection between a monk from a small village and our democracy.

In 1973, Kesavananda ji filed a petition in the Supreme Court. And in a way, this petition upheld (कायम रखना) our democracy. Even today, Kesavananda ji is remembered for this moment in our history.

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Friends, the case we’re going to talk about today is called Kesavananda Vs. The State of Kerala.

Chaliye, I’m going to take you back to 1969 for this story. India had been independent for more than 20 years. Indira Gandhi ji was our Prime Minister. In this big, new nation there was a small monastery  in a corner of Kerala, that was soon going to change the country. 

In Kerala’s  Kasaragod (कासरगोड) district, there was a monastery called the Edneer Mutt. Like I told you before, The head of this mutt was Kesavananda ji. Edneer was a small mutt in a small district, but it was greatly respected, as it is today as well. Like many monasteries and temples in India, the Edneer mutt, too, had its own land. And that piece of land is where this whole story starts. 

In 1969, the government had passed the Kerala Land Reforms Act. This act said that a piece of land is owned not only by the land-owner (zamindar), but also the farmer who is tilling (us zameen par kaam karta hai) the land. It introduced the concept of “land ceiling”, which put a limit of the amount of land you could own and the government had the right to seize the rest. 

So, working according to this act, the Kerala government put certain restrictions on the management of the Edneer Mutt, and the land that it owned, and even took away some part of it. This was a matter of great distress to the community — so much so, that Kesavananda ji was ready to go to the law. 

To understand what he could do to get the mutt’s land back, Kesavananda ji spoke with a friend who was a lawyer. He probably expected to fight a case in the local court, to get possession of the small amount of land that the mutt had lost. But the friend realized that there was an opportunity hidden in Kesavananda ji’s case. 

Little did Kesavananda Ji know that this conversation with a friend — and his attempt to fight for a small piece of land — would go on to become the single-most important judgment in the history of the Indian Supreme Court.

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When our leaders were drafting the constitution, they created new laws for a new country. But they also realized that with time, India will change, and grow. And perhaps, the laws they were drafting would need to change as well. 

This is why they provided for a process to amend the constitution.

This made the Indian constitution a “living constitution”, one which evolved over time and adapts to new situations. And when you think about it, these amendments are necessary, in a country like ours. 

Take the first every constitutional amendment, for instance. Barely a year after the constitution had come into effect, the government passed the first constitutional amendment. This added the freedom of speech and the abolition of the zamindari law to the constitution.  

But then … amendments to the constitution can be just as dangerous as they are necessary. The power to take away the rights that the constitution provides is dangerous. 

Constitutional amendments can only be made when a bill with those amendments is passed in both the Rajya Sabha and the Lok Sabha. This is so that no decision is made in a hurry, or in favour of a political party. 

Right from 1951 to this day, as we speak, constitutional amendments have been a matter of controversy. But if we have anyone to thank for the protection of our constitutional rights, it’s Kesavananda Bharati ji. 

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So far in our story, Kesavananda ji has spoken to his friend about what his legal options are to get land back from the Kerala government.

Now, in Bombay, another lawyer read a letter with a lot of interest. This letter came to him from a small village in Kerala. It was from a distant friend, talking about a sadhu and a monastery he didn’t even know. The letter described a legal case against the Kerala government, to fight the Land Reform Act — But why was Nani Palkhivala (नानी पालखीवाला), a famous Advocate from Bombay, reading this letter?

Nani Palkhivala ji, in 1969, had earned the respect of the law community. At a young age, we had entered the bar and fought cases in the Supreme Court. Professionally, Palkhivala ji was an expert on commercial tax. But if you asked anyone who knew him, they wouldn’t forget to mention Palkhivala ji’s passion for the Indian constitution. 

While Palkhivala ji believed that the constitution must grow, he was firmly against the constitutional amendments that governments were making at that time — which he believed, were often being done with political motives. 

When reading the letter, Palkhivala ji realized there was a bigger opportunity. 

Let me give you some background first. 

The Kerala Reforms Act was enacted by the government in 1969. It was added into the constitution — but not only this, the reform act was added into the Ninth Schedule of the constitution. 

Now, the ninth schedule is one section of the constitution that was like … what I’d like to call, a “loophole” of the constitution. Any act that’s in this schedule could not be reviewed by the court, even if it was against our Fundamental Rights! The Ninth Schedule was added in the first amendment to the constitution.

So, a fight against the Kerala Land Reform would be a fight against the right the government has to make constitutional amendments such as the ninth schedule. Amendments that affect the Fundamental Rights of the citizen. 

I know — a land reform act is an unusual place to find inspiration to challenge constitutional amendments. But if there was anyone who could do it, it was Palkhivala ji, who truly believed in the power of the Indian constitution. 

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Doston, so far we’ve talked about a small mutt’s fight to win back its land, the question of amendments to the constitution and a passionate lawyer fighting to uphold the constitution.

There’s another element I’d like to bring into this story — and that’s Fundamental Rights. Don’t worry, it all makes sense – so stay with me!

India was a country that was ruled by another dynasty for nearly 200 years, so the concept of fundamental rights was very important for us. The leaders who were oppressed, arrested and whose friends were killed for demanding the right to speech or equality, saw the need for a set of rights for the citizens of India. Which is why the Fundamental Rights listed in the constitution are very important, they are sacred. 

Let me list them out for you quickly: the fundamental rights include the right to equality, freedom against exploitation, freedom of religion, educational rights, constitutional remedies. 

Together, these rights form the most basic (buniyadi) part of the constitution. Every law after that, in some way or the other, is made to ensure that a citizen has these fundamental rights. 

But the right to amend the constitution means — these fundamental rights can be amended or modified too. Along with other important, basic parts of the constitution. 

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In 1973, all of these threads came together. 

Kesavananda Bharati ji, the Acharya of the Edneer mutt filed a petition in a case that was called Kesavananda Bharati Vs. The State of Kerala. 

Nani Palkhivala ji, who wanted to fight constitutional amendments, took this case to the Supreme Court. 

In the court, this case fought for the Right to Land — a Fundamental Right at the time. And eventually, the court saw a very important question being raised – can the government make such a constitutional amendment, that goes against the Fundamental Rights of a citizen?

Accha, at this point, let me give you some more background, before we dive into the case. 

We’re talking about the 1960s and 1970s, when the Indian National Congress was the ruling government, except for a few years here and there. This is a time when there was a subtle, yet constant fight: Judiciary Vs. the Government. 

This fight is evident in some of the disagreements between the Indira Gandhi government and the courts when the Supreme Court struck down some of the Acts passed by the government. Like — the Banking Companies Act of 1969 or the Privy Purses ordinance (प्रिवी पर्सस अध्यादेश). The Supreme Court declared these to be unconstitutional. 

Why? Because these were declared to be against our fundamental rights. This was one reason for the judiciary vs. government saga. Another reason was constitutional amendments, something that we have been talking about in this episode. 

Baat yeh hai, ki Kesavananda ji’s case was not the first one to tackle this issue.

In 1967, the Supreme Court made an important judgment in the Golaknath (गोलखनाथ) case, saying that the Parliament cannot make any such constitutional amendments that go against the Fundamental Rights listed in the constitution. This ruling actually limited the Government’s amendment power to a great extent. 

Doston, Mrs. Gandhi was not happy. And you will realise that I tell you what happened next. 

In 1971, the Indira Gandhi government was voted to power again. Now, Mrs. Gandhi made three important amendments to the constitution: 24th, 25th and 29th. In one of these amendments, the government put the Kerala Land Reform act into the Ninth Schedule. And we already know that this becomes an important part of the Kesavananda case, later on.

Also, through these amendments, the government did one puzzling thing. 

There is an article in the constitution, Article 368, that gives the government limited power to amend the constitution. The government amended this very article and removed any limit to the amendments it can make!

Doston, this entire matter is like a riddle (paheli). The constitution made an article that was there to limit the government’s power, and used this very article to make its power unlimited! 

Zia Mody, in her book “10 Judgements that Changed India”, made an interesting comparison. She said that this move was as if a genie gives you three wishes, and you use those wishes to ask for unlimited wishes!

But, don’t worry, because the Kesavananda Case is the answer to this riddle. It was decided that to challenge the Land Reforms, Kesavananda ji will also have to challenge these three amendments made by the Supreme Court. 

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October 31st, 1973. A bench of 13 judges – the biggest one that the Supreme Court had ever seen – was ready to hear the case of Kesavananda Bharati Vs. State of Kerala. 

Inside the court, Nani Palkhivala would defend Kesavananda ji, and H.M. Seervai (सीरवाई), along with other advocates argued on behalf of the government. This case would last 70 days!

When the proceedings began, Palkhivala ji brought the Court’s attention to the matter of amendments. His argument was not that the government cannot make any amendments — He argued instead that the government cannot increase its own amendment power!

He also talked about Fundamental Rights and the Right to Property, because after all Kesavananda ji’s case was about the Edneer Mutt’s land. Palkhiwala ji said if the government has the power to amend the constitution correctly, then kal – who will stop it from creating a monarchy in this country?

It was now H.M. Seervai’s turn on behalf of the Government. He said: yes, the government does have unlimited power to amend the constitution. But wait — why are we assuming that unlimited power means “abusing of power”?

And Fundamental Rights? Well, as far as that is concerned, Seervai told the court that these are social rights. We are not entitled to them any more than that.

Doston, this hearing went on for a long time. But I’d like to tell you an interesting argument. 

To oppose Seervai ji’s point, Palkhivala ji chose to recite a quote from a respected lawyer. He kept the name of this lawyer hidden. A part of the quote said: “We must rekindle the spirit of the Fundamental Right to Property, to carry on business. The Constitution is not an ordinary law that can be changed by the government!”

At the end, Palkhivala ji revealed to the court the name of the lawyer who had said these statements a few years ago. That lawyer was H.M. Seervai himself, who was the opposing lawyer in this case.

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Even after 70 days of hearing, the judgement of this case is widely considered to be confusing. There were 13 judges, and all of them had different opinions. In fact, when a summary was made of all these opinions into a common judgment, 4 of the judges refused to sign it! 

These four judges gave a separate judgment, which was different from the common judgement. In legal parlance (kanooni bol-chaal) this is called a dissenting judgment or opinion. And the common judgment is called a majority judgment. 

The majority judgment decided that the government has the right to change or amend the fundamental rights to some extent, as long as the “basic foundation” of the constitution is upheld. In fact, every part of the constitution can be changed with this rule in mind. 

And even though four judges gave a dissenting opinion, the majority judgment was accepted.

But the unfortunate part of this judgment was that Kesavananda ji could not get his land back. The reason is, though the government decided to protect Fundamental Rights, it removed Right to Property from this list.

As a matter of fact, Nani Palkhivala never even met Kesavananda ji. It is said that Keshavananda ji would hear his name everyday on the news and wonder why this case, about land reforms, is being considered so important in the country!

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Doston, this is not where our story ends! I want you to take you a few years forward now, to 1975.

[We hear the announce of Emergency declared in 1975]

In June 1975, Mrs. Gandhi declared an emergency in the country. Now I want to remind you that the Congress was deeply unhappy with the Kesavananda judgment, but what could they do about it?

Emergency in the country meant that the Fundamental Rights of the citizens were suspended. The government enacted a few constitutional amendments during this time, too.

In the coming years, a few supreme court hearings took place that are important to our story. The first is the Indira Gandhi Vs. Raj Narain (राज नारायण) case. In this court case, the Supreme Court struck down the amendment which allowed the judiciary to be separate from the elections. 

Why? Because such an amendment goes against the basic structure of the constitution. 

The very next year, in 1976, the Government passed what is often considered the most controversial amendment to the constitution: the 42nd amendment. 

The government made some crucial changes to the constitution. It added the words “socialist” and “secular” to the preamble of the constitution. It also added the section with Fundamental Duties. Most importantly, it amended the Article 368 again, giving itself unlimited power. 

The same, three wishes – and unlimited wishes funda. Again!

The next important case happened in 1977. And it was fought by Nani Palkhivala ji, again! In the case Minerva Mills Vs. the Union of India, the judiciary, struck down the amendment made to Article 368, and declared for once and for all: the government cannot use its power to give itself unlimited amending power. Why? Because it goes against the basic foundation of the constitution.

There’s a phrase here that’s coming up again and again — the basic structure. 

And this is the reason that the Kesavananda Bharati changed the way the courts looked at every single case from 1973 forwards. 

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At the end of the judgment in the case of Kesavananda Bharati Vs. The State of Kerala, the courts realized that it’s not the constitutional amendments that are the issue, it’s the fact that they violated the basis of the constitution. To prevent this, the Supreme Court introduced the “Basic Structure Doctrine”.

So, what is this doctrine?

Think of it as a “rule” – a rule, that no constitutional amendment can be made that opposes the basic features of the constitution.

The Basic Structure Doctrine is actually a German concept. For us Indians, Justice Hand Raj Khanna (हांड राज खन्ना) wrote this doctrine, adapting it to India. 

And what are the basic features of our constitution?

Well, actually, there is no fixed answer to this question written in the doctrine. The Judges agree that concepts like Democracy, Federalism, Fundamental Rights, dignity of the individual will always be included in the basic features. But the basic features would be decided on a case-to-case basis, whenever it comes up in the court. 

The Basic Structure Doctrine was so powerful, that the Supreme Court was able to use it to strike down even an amendment made by the Prime Minister during an emergency. The Kesavananda Bharati Vs. State of Kerala was a historic judgment because this one judgment made sure that the rights of the citizens would be protected at all times. And not only rights — it made sure that our country would remain democratic, federal and retain the ideals that our leaders gave it. 

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Doston, you know what’s interesting? Over the years, the courts have interpreted and used the Basic Structure Doctrine not only for constitutional amendments, but also real-life situations! In 1994, the Supreme Court cited the Basic Structure Doctrine to uphold the basic ideal of secularism when communal riots were taking place.

It’s hard to imagine, but it’s the truth: a tiny little Shankaracharya mutt in a hidden town wanted to fight for its land. A fight that led the courts to think about fundamental rights, the basic structure of the constitution, and how we, the citizens, can be protected. A fight that led to the Basic Structure Doctrine, a rule that changed the way course for judgments in India. 

Our story began with a tiny mutt, and ended with a historic change in the legal history of India. With a little help from Nani Palkhivala, of course. 

That’s all from this week, folks. I hope you enjoyed understanding this case with me, and I’ll be back next week with another question for you. 

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