The decision, which increased Indira’s difficulties; Kesavanand Bharti judgment is again in controversy

In the midst of the ongoing controversy over the collegium and the National Judicial Appointments Commission, questions are being raised on the decision of the Supreme Court in the historic Kesavanand Bharti case. In a program on January 11, Vice President Jagdeep Dhankhar questioned the 1973 Supreme Court verdict in the Kesavananda Bharti case. 

Vice President Dhankhar had said that this decision of the Supreme Court has set a wrong precedent. If any institution of the country questions the power of the Parliament to amend the constitution, then it would be difficult to say that we are a democratic nation.

After the Vice President’s statement, the opposition parties, including the Congress, targeted the central government. On the other hand, in a program in Mumbai on January 21, Chief Justice DY Chandrachud described this decision as Dhruvatara. In this story, know in detail what was the Kesavanand Bharti case and what did the court say?

Updates so far in the Supreme Court Vs Central Government case…

1. Union Law Minister Kiren Rijiju said that it is worrying to make public the IB and RAW reports on the judges whose names have been recommended by the Collegium. .

2. The Supreme Court Collegium has updated a 3-page reply on its website, calling the government’s rejection of gay lawyer Saurabh Kripal’s proposal to appoint a judge in the High Court as wrong. 

Why Kesavananda Bharti knocked on the door of the court?
Kerala government brought 2 land reform laws to lease 300 out of 400 acres of land of Idnir Hindu Math of Kerala to the farmers. The government placed this law in the Ninth Schedule of the Constitution.

Keeping a subject in the Ninth Schedule of the Constitution means- it cannot be judicially reviewed, that is, it cannot hear on behalf of the court. 

Here, after not getting a favorable decision from the Supreme Court in the Golaknath vs. Punjab Government case, the Indira government at the Center made the 24th amendment to the constitution. Articles 13 and 368 of the Constitution were amended through this amendment. Under this, the Parliament got unlimited right to amend the constitution. 

In such a situation, Kesavanand Bharti, the abbot of Idnir Math, approached the Supreme Court. Nana Palkiwala, a famous lawyer of that time, filed the case on his behalf. Looking at the case merit, a bench of 13 judges including the Chief Justice was constituted. The issue was- Can Parliament change the basic structure of the Constitution?

The debate lasted for 5 months in a bench of 13 judges
Arvind Datar, senior advocate in the Madras High Court writes in The Hindu – The hearing in this case started on 31 October 1972, which continued till 23 March 1973 Chali. The bench comprising Chief Justice SM Sikri, Justice JM Shelat, Justice KS Hegde, Justice N Grover, Justice N Rai, Justice PJ Reddy, Justice DG Palekar, Justice Hansraj, Justice KK Mathew, Justice MH Baig, Justice SA Dwivedi, Justice BK Mukherjee and Justice YV Chandrachud. 

During the debate, the then Attorney General Niren Dey gave the example of 71 countries where the Parliament can change the structure of the Constitution. It was argued on behalf of Kesavanand Bharti that if the Parliament is given unlimited powers, then the constitution itself will end. 

703-page decision made historic
On April 1973, the Supreme Court gave a 703-page decision in the Kesavananda Bharati vs. State of Kerala case. With a majority of 7.6, the court said that the government can amend the constitution, but cannot tamper with the basic principles.

Reading out the judgment, the then Chief Justice SM Sikri called the basic features of the Constitution as the basic structure and ordered a stay on its amendment. 

This decision of the Supreme Court increased the difficulties of the Indira government at the Center. Because Indira Gandhi was constantly amending the constitution after becoming the Prime Minister. After the verdict in the Kesavananda Bharti case, politics intensified and the Indira government came on the backfoot in many cases.

26 months after the verdict, the Indira government announced the imposition of internal emergency in the country. Fundamental rights were taken away due to Emergency. 

Then why the controversy flared up, 2 reasons…

  • The Central Government wants to appoint judges in the Supreme Court and High Courts by bringing the National Judicial Appointments Commission. The Supreme Court has rejected it once. Last month, Law Minister Kiren Rijiju raised it again. The Law Minister termed the collegium process for appointment of judges as alien. 
  • The government was also upset with the hearing in the Supreme Court on the appointment of Election Commissioner Arun Goyal. During the hearing, the Attorney General had also told the Supreme Court not to conduct a mini trial. The Solicitor General had also said that if you interfere in every matter, it would be like rewriting the Constitution. 

How right is it to raise the question?
Former Union Minister and Senior Advocate P Chidambaram considers it a threat to the Constitution. In an opinion piece written for the Indian Express, it is said that the government wants to paralyze the Supreme Court by exerting pressure. This is an attempt to destroy the constitution. 

Chidambaram writes- Before the Kesavanand Bharti case, which the people of the government are telling wrong, a similar decision has been given in Golaknath vs. Punjab Government. In this, out of 11 judges, 6 judges had given a majority verdict that the Parliament does not have the power to amend the fundamental rights.

Former Union Minister further writes – If the verdict in Kesavanand Bharti case is taken to mean directly, then Parliament cannot change the core of secularism, independent judiciary and federalism. Is this decision wrong?

Upendra Bakshi, a law expert, describes the decision of the Kesavanand Bharti case as a breaker to stop the unlimited power of the government. Bakshi writes in the Indian Express- After this decision, the judiciary, executive and legislature got an idea of ​​power. 

Bakhshi refers to the order written by Justice SN Dwivedi in the Kesavanand Bharti case, in which he said that we have given you vast powers for public welfare, but if you misuse it then you will be damned.

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