Kesavananda Bharati is the case that set the principle that the Supreme Court is the guardian of the basic structure of the Constitution.The verdict,delivered exactly on this day,April 24,40 years ago,involved 13 judges the largest bench ever to sit in the Supreme Court.That judgment redefined and protected our Constitution.The case known as His Holiness Kesavananda Bharati Sripadagalvaru vs State of Kerala was filed in March 1970.The head of Edneer Mutt in Kasaragod district was challenging the Kerala governments attempts to take over mutt property.The case came to the attention of Nani Palkhivala,who decided this might be a good case on which to challenge Parliaments power to amend the Constitution at will.Such a challenge was inevitable,given government reactions to the courts decision in the Golak Nath case (1967) case which held that Parliament could not amend Fundamental Rights,including the Right to Property.This didnt sit well with Indira Gandhis government,dominated by excommunists like Mohan Kumaramangalam.Parliament passed the 24th,25th and 29th Amendments,allowing amendment of Fundamental Rights and putting some property issues beyond judicial review.In the Bharati case,the odds looked stacked against the Supreme Court,which was led by Chief Justice of India (CJI) SM Sikri.To start with,there was the bench size: Golak Nath was decided by 11 judges,so court procedure dictated that any challenge had to be before an even larger odd-number bench,hence 13 judges.But the court did not have that many judges to devote the considerable time the hearings would need,so new appointments had to be made.Rumours circulated in the court about offers and inducements and private meetings between ministers and judges.CJI Sikri was apprehensive of where the governments power grab would take it the Emergency was to prove him right two years later,in 1975.There was high drama,including a judge falling sick and so threatening to take court procedures beyond April 25,1973,the day the CJI was to retire.Sikri overcame these obstacles and 66 days of oral arguments ended on March 23.That left the judges just a month to arrive at their verdicts.These verdicts were delivered on April 24,and despite Sikris best efforts to get the judges to come to joint verdicts,only two agreed.This meant 11 verdicts,a few solidly on the governments side,but most with subtle shades of opinion.At first glance,it seemed that the government had won.But Sikri pulled off a coup realising that the Right to Property might not survive,but the courts power could.The solution lay in a phrase used by Justice HR Khanna,The power of amendmentdoes not include the power to abrogate the Constitution nor does it include the power to alter the basic structure or framework of the Constitution. A bare majority of 7-6 also supported this statement,thereby preserving the courts power as ultimate arbiter of the Constitution,since who else could decide what was basic structure On the 24th,his last day in court,Sikri pulled out a document articulating this agreement,starting with the fact that Golak Nath was overruled,but followed with affirmation of basic structure,a concept that really only existed in the mind of one judge before this.In open court,going against all previous procedure,Sikri passed it to the other judges to sign.Four refused it,but nine did and the case was done.Despite the headlines proclaiming her victory,Indira Gandhi clearly got the point and struck back the very next day.Justice AN Ray,the seniormost judge who had voted in the governments favour,was appointed CJI,bypassing three judges senior to him.The storm that broke over this was one of the main precursors to the Emergency.The judiciary decided that the only solution to this sort of vindictive government power was to take control of its own appointments.And his Holiness All the drama bypassed him;he still presides over his mutt.In the years since,a few curious legal students have made their way to meet him,and he greets them politely and asks if they have eaten.As for the case that remade the Indian Constitution,he only vaguely remembers a property matter many years ago. Vikram Doctor
