Fifty years ago, in 1973, on this day, April 24, thirteen judges of the Supreme Court pronounced the most momentous judgment of all time, “Kesavananda Bharati v. State of Kerala”. The majority of the judges held that Parliament could amend the Constitution, including the fundamental rights. But it was not an unqualified carte blanche. The amendment could not alter the basic structure of the Constitution.
The year, as I said, was 1973. Hard fought independence movements and meticulously drafted Constitutions across the globe in Africa and Asia were falling like ninepins. The Constitutional courts across the post-colonial world could not stem the collapse of their democratic constitutions.
The situation for postcolonial democracies was so grim that even the farcically cruel statement by the Pakistan General Ayub Khan after the military takeover in 1958 that “democracies cannot survive in hot countries, for it you need cold climates”, had an apocalyptic ring to it.
Parliament Versus Supreme Court
There is a relevant history to how “Kesavananda Bharati” came to be. In India there was a raging battle between the legislature and the courts. The courts were striking down Zamindari abolition and land reform legislations quite flippantly, claiming that they were in breach of the Fundamental Rights. The countervailing reality that millions were landless were deprived of basic nutrition was an argument never in the reckoning.
In 1967, with a razor thin majority of 6-5, the Supreme Court in (Golaknath v St. of Punjab) held that the Parliament could not abridge any fundamental right. It did not matter what laudable object of the Directive Principles it was seeking to achieve. The decision was yet another grave setback to the entire land reforms movement.
In 1970, the Supreme Court struck down the Bank Nationalisation Act. This was followed in quick succession by the striking down of the Government’s decision to abolish the Privy Purse, the recompense paid to erstwhile rulers of princely states. Exactly 12 days later, Indira Gandhi dissolved Parliament and sought a fresh mandate to pursue her policies in the next general election.
How The Judgment Resolved This Conflict
The people of India gave a thumping verdict in favour of Mrs. Gandhi with a two-thirds majority. What followed were two Constitution amendments, the 24th and the 25th Constitutional Amendments. One of them was that legislation which was made to further the directive principles could not be questioned by courts.
The majority of 7-6 in Kesavananda Bharati held that “the power to amend does not include the power to alter the basic structure of the Constitution” . Amendments to the Constitution which included amendments to fundamental rights could be made by Parliament so long as it did not alter (a) supremacy of the constitution, (b) democracy and republican nature of government, (c)secularism, (d) separation of powers or (e) the federal character of the Constitution.
It was an exercise in not just brilliant jurisprudence but also of judicial statesmanship. Can you abolish democracy? Can parliamentary elections be abolished and one-party rule be imposed? Can one person be made Prime Minister for life? Can the judiciary not review executive decisions? Can you end equality of all religions? The answer is an emphatic “NO”. But can you bring in Zamindari abolition legislation? The answer is “YES”.
The Past, Present And Future
The decision of the Supreme Court in “Kesavananda Bharati” and its emphatic resolution in favour of preserving our democratic constitution did impact the preservation of democracy in India for 50 long years.
Of late, the serious concern is the impact of an overweening executive and the consequent loss of independence of the judiciary. The virtual constitutional comatoseness of the courts when it comes to human liberties has been alarming. When students, academics, journalists, intellectuals and opposition political figures are put in prison, it is an indicator of democracy deficit.
So the question will always be asked by future generations while looking at our present epoch: Did Kesavananda Bharati save the Indian constitution or our democracy? That would depend upon the courage of our constitutional courts in upholding the letter and spirit of “Kesavananda Bharati”.
As Karl Popper in his iconic work, “The Open Society and its Enemies”, had shone the guiding light:
“History has no meaning…. But this contention does not imply that all we can do about it is to look aghast at the history of political power, or that we must look on it as a cruel joke”.
Santosh Paul is Senior Advocate, Supreme Court of India. He is the author of `Choosing Hammurabi: Debates on Judicial Appointments’ (LexisNexis), `Appointing our Judges: Forging Independence and Accountability’ (LexisNexis) and `The Maoist Movement in India: Perspectives and Counter Perspectives’ (Routledge). Views are personal and do not represent the stand of this publication.
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