Extraordinary Case Study

The Kesavananda Bharati Case

T.R. Andhyarujina

Universal Law


Pages: 150

Rs 295

Kesavananda Bharati (1973) is the greatest constitutional case in India's judicial history. It is believed to have held, by a supposed majority of seven to six, that the power of Parliament to amend the Constitution did not extend to altering its "basic structure". The "basic structure" doctrine has now become a tenet of our constitutional law.

A very small minority, including the reviewer, holds the view that the doctrine is anti-democratic and counter-majoritarian in character, and that unelected judges cannot have the power to annul amendments to the Constitution passed by Parliament. A weakened political class has, however, surrendered to judicial supremacy. After the 42nd Amendment, made during the Emergency, was struck down by the Supreme Court in Minerva Mills (1980), no attempt has been made by Parliament to regain the power which the court itself had acknowledged in the early years of the Constitution, until Golak Nath (1967).

In this riveting little work, former solicitor-general T.R. Andhyarujina tells the inside story of Kesavananda Bharati. Andhyarujina appeared in the case with his senior, the legendary H.M. Seervai, on the government's side. He maintained a diary during the 66 days of hearings, which he draws upon. He also relies upon the memoirs of some of the judges in the case, and his own interviews with some of them.

The big fight was anticipated. Major amendments to the Constitution (the 24th, 25th, 26th and 29th) had been enacted by Indira Gandhi's government through Parliament to get over the judgments of the Supreme Court in R.C. Cooper (1970), Madhavrao Scindia (1970) and Golak Nath. The first had struck down bank nationalisation, the second had annulled the abolition of privy purses of former rulers and the third had held that the amending power could not touch Fundamental Rights. All these amendments were under challenge in Kesavananda. Since Golak Nath was decided by eleven judges, a larger bench was required to test its correctness. And so, 13 judges were to sit on the Kesavananda bench.

... contd.

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