I wanted to be a lawyer. That is, perhaps, why I took a lot of interest in the Kesavananda Bharati vs State of Kerala case the Supreme Court was hearing those days. I subscribed to The Hindu newspaper. I do not know who its legal correspondent was. All I can say is that he did a wonderful job.

I felt as if I was sitting in the court and listening to the arguments, especially of Nani Palkhivala, who represented Swami Kesavananda Bharati, the head of a Mutt in Kasargod district in Kerala, who challenged the laws enacted by Kerala to take over the Mutt property.

It was the first time that a 13-member Constitution Bench was hearing the landmark case. The hearing continued for nearly three months. Since I was a little Communist at that time, my sympathies were not for Swami and his counsel.

Palkhivala was not new to me. I had read some of his booklets that critiqued the Union Budget or the economic policies of the Congress, brought out by the Forum of Free Enterprises of which V.P. Menon, who integrated the Indian States as the right hand man of Sardar Patel, was a leading light.

His command of the English language, persuasive skills and the strength of his arguments were at once appealing. He was the star of the Kesavananda Bharati case, also known as the Fundamental Rights case. The Hindu reporter seemed to have noted down every word he uttered in the court and reported it for readers like me.

As I mentioned, I was not on the side of Palkhivala when he argued that  the right to property was integral to the right to life and was a must in a democratic society. For I wondered why should the seer have so much land that, in any case, he did not need or did not cultivate.

I was disappointed when the judgement (7-6) was given. For the first time, the court asserted the doctrine of the basic structure of the Constitution. Although Article 368 of the Constitution allows amendment of the Constitution under certain conditions, it does not mean that a government enjoying a brute majority in Parliament can have the Constitution abrogated.

Fifty years have passed since the verdict was delivered in April 1973. Much water has flowed down the Yamuna since that day. I am now a strong votary of the Basic Structure doctrine. In simple terms, it means that any provision in the Constitution may be modified or deleted provided it does not alter the Constitution’s basic structure and framework.

We all know what happened in Germany. Hitler came to power in a democratic manner. But once he was enthroned, he began tinkering with the Constitution to emerge as a dictator who was ready to send the whole Jewish population to the gas chambers. In 1973 when the judges heard the case, memories of the Third Reich were still fresh in their mind. Here I would like to mention the contribution of a German scholar Dieter Conrad, who died in 2000.

He believed that what happened with the Weimar constitution in Germany could as well happen in India. He delivered a lecture titled “Implied Limitations of the Amending Power” in 1965. Let me quote a few paragraphs from his speech:

“Perhaps, the position of the Supreme Court is influenced by the fact that it has not so far been confronted with any extreme type of constitutional amendments. It is the duty of the jurist, though, to anticipate extreme cases of conflict, and sometimes only extreme tests reveal the true nature of a legal concept. 

“So, if, for the purpose of legal discussion, I may propose some fictive amendment laws to you, could it still be considered a valid exercise of the amendment power conferred by Article 368 if a two-thirds majority changed Article 1 by dividing India into two States of Tamil Nadu and Hind proper?

“Could a constitutional amendment abolish Article 21, to the effect that forthwith a person could be deprived of his life or personal liberty without authorisation by law? Could the ruling party, if it sees its majority shrinking, amend Article 368 to the effect that the amending power rests with the President acting on the advice of the Prime Minister? Could the amending power be used to abolish the Constitution and reintroduce, let us say, the rule of the Moghul emperor or of the Crown of England? 

“I do not want, by posing such questions, to provoke easy answers. But I would like to acquaint you with the discussion which took place on such questions among constitutional lawyers in Germany in the Weimar period — discussion, seeming academic at first, but suddenly illustrated by history in a drastic and terrible manner.”

His speech, widely read and quoted in legal circles, had a profound influence on the judges who heard, first, the Golaknath case. An 11-member Bench presided over by Chief Justice Subba Rao ruled that the fundamental rights, including the fundamental right to property, could not be amended even by a constitutional amendment passed with the requisite two-thirds majority.

Justice Subba Rao carried the day with a 6-5 verdict. A young 20-something at that time, I was shocked. Today, I rejoice over the verdict that paved the way for the basic structure doctrine propounded by the court a few years later. Indira Gandhi had the making of a dictator. She did not take things lying down.

She had the requisite majority in both Houses of Parliament and she made good use of the majority to make a series of amendments to the Constitution. The 24th, 25th and the 29th amendments were indeed problematic. The Supreme Court was presided over by Chief Justice S.M. Sikri, who constituted the largest-ever 13-member Bench to consider these amendments. He also wanted the correctness of the verdict in the Golaknath case checked.

While hearing the Kesavananda Bharati Case, the court held by a narrowly-fractured majority of 7:6 that although no part of the Constitution, including fundamental rights, was beyond the amending power, one thing was certain viz. that the basic features of the Constitution could never be abrogated. In short, the Golaknath verdict was over-ruled.

In his autobiography Before Memory Fades, Fali S. Nariman mentions the judgement of Justice Mudholkar in Sajjan Singh (1965) case. It is a very beautiful, well-argued verdict that elucidates the concept of the “basic features” of the Constitution. Let me quote a few lines from the verdict: 

“To illustrate my point, as long as the words 'sovereign democratic republic' are there, could the Constitution be amended so as to depart from the democratic form of government or its republic character? If that cannot be done, then, as long as the words "justice, social economic and political etc.," are there could any of the rights enumerated in Arts. 14, to 19, 21, 25, 31 and 32 be taken away ? If they cannot, it will be for consideration whether they can be modified”.

The majority verdict in Kesavananda Bharati Case elaborated in greater detail that the basic structure of the Constitution could not be altered. Mrs Gandhi was annoyed by the verdict which came a few days before Chief Justice S.M. Sikri retired. As was the custom, he recommended the name of Justice J.M. Shelat, the senior-most judge, as his successor.

The vindictive Prime Minister wanted to spite him. She didn’t care two hoots for his recommendation. She appointed Justice A.N. Ray as the next chief justice overlooking the claims of Justice Shelat, Justice K.S. Hegde and Justice A.N. Grover.

What she found noteworthy in Justice Ray was that he was in the minority which believed in the overarching power of Parliament to amend the Constitution. The basic structure doctrine has come to stay. It is an irony of irony that the one person who cemented the doctrine was Indira Gandhi herself, though inadvertently.

Indira Gandhi lost the election petition filed against her by her opponent Raj Narain. However, the Allahabad High Court which pronounced the verdict allowed her time to go in for appeal. Her appeal was heard by the vacation judge, Justice V.R. Krishna Iyer. 

In a not-so-parsimonious verdict, beautifully drafted and published in full in most newspapers in the country, the judge allowed her to continue as Prime Minister, take part in debates in Parliament but not take part in voting as a member. It was an interim relief for her.

Iyer did not go into the merits of the High Court verdict. While the case filed by her was pending in the Supreme Court, a Bill amending the Constitution was rushed through Parliament. The Constitution 39th Amendment Act, 1975, provided, among other things, that disputes regarding the election of a person who becomes Prime Minister was not to be decided in courts but by a special body named by Parliament. 

“It also provided that election laws would not be applicable to the Prime Minister and would not be deemed over to have been applicable to the Prime Minister; notwithstanding any order of any court, the election of the Prime Minister would never be deemed to have become invalid or void –- the election of the Prime Minister would continue to be valid in all respects”.

The court did not buckle under pressure. It used the basic structure doctrine to argue that “judicial review” and “free and fair elections” were a fundamental part of the Constitution beyond the reach of the amending power. We all know what happened subsequently.

She imposed Emergency on the country, arrested all the important Opposition leaders, except, of course, a certain gentleman from Gujarat who went to the US where he enjoyed the hospitality of rich Gujaratis owning gas stations and motels till the Emergency was lifted.

“In 1980, the court applied the doctrine of basic structure in a challenge to a provision in the Constitution 42nd Amendment Act, 1976. This provision shut out all judicial review of constitutional amendments. No amendment to the Constitution (it said) made in accordance with the procedure in Article 368 could be called in question in any court on any ground, whatsoever.”

For want of space, I refrain from quoting more cases, including the S.R. Bommai case, where the court used the basic structure doctrine to reject attempts to weaken the Constitution. Once I asked Justice R. Basant to define what constituted “basic structure”. He pointedly told me, “You bring a specific case of infringement and the court will tell you whether it violated the doctrine or not”. That was after he delivered a talk at Kerala Club.

I have read an interview Nariman gave to the Indian Express in which he says no matter who comes to power, the basic structure would remain intact. I wish I were as optimistic as the learned lawyer.

It is under a Presidential order that Dalit Christians and Dalit Muslims are denied the benefits of reservation. It is violative of the preamble of the Constitution. It is also against the principles of equality. 

This monstrous order still remains in force despite the basic structure theory. We had a judge — not a Hindu — of the Supreme Court who argued about the supremacy of Manusmriti vis-a-vis the Constitution. We had a judge in the High Court of Rajasthan who wrote that peacocks and peahens were the perfect living organisms because they did not copulate to have their offspring!

Imagine what will happen to the Basic Structure if a powerful leader like Narendra Modi is able to appoint judges like he appoints governors, ministers, ambassadors and chairman of public sector companies. He is already piqued over the SC verdict on the Act that sought to deprive the Collegium of the power to appoint judges to the high courts and the Supreme Court.

Such judges can easily say that socialism and secularism were not part of the Preamble of the Constitution when it came into force in 1950. They were added during Mrs Indira Gandhi’s tenure, i.e., during the Emergency. In any case, does the basic structure prevent the Prime Minister from behaving like the Hindu Hridaya Samrat as his followers love to describe him? The less said about socialism, the better it would be.

(ajphilip@gmail.com)