Kesavananda Bharati, who filed the famed constitutional case leading to birth of the valid doctrine of “Basic Constitution”, gave up the ghost on Sunday morning at his ashram, Sri Edneer Mutt ,in the Kasaragod district of north Kerala. Bharati, who had been suffering breathing and heart ailments, used to be 79.
Through the years, the name of Bharati had transform synonymous with constitutional law after a 13-judge bench of the Supreme Court on April 24, 1973 delivered its historic judgement in the case referred to as Kesavananda Bharati v. State of Keralam in which it used to be held that the powers of Parliament to amend the Charter of India is circumscribed by what is referred to as Basic Constitution of the Charter.
In other words, the court ruled that Parliament can amend any a part of the Charter, but such amendment cannot in any manner deface or distort the basic features of the constitution such as democracy, federalism, supremacy of the Charter, secularism, and separation of powers between legislature, executive and judiciary.
Bharati took over as the pontiff of Sri Edneer Mutt, a Hindu monastic institution, when he used to be 19. Bharati used to be in his late 20s or early 30s when the mutt’s properties were sought to be acquired by the Kerala government, triggering the landmark case.
“He spent his entire life as a devout leader but he has left back for the country a valid doctrine which has endured to retain the country together in the face of a large number of autocratic governments with a immense majority,” senior counsel Sanjay Hegde told HT.
“Very rarely does a litigant attain immortality for the cause she or he espoused and the redefining moment brought by the judgment. His Holiness Kesavananda will be to India, what (Oilver) Brown is to the United States (judgment against racial segregation in public schools) and (May) Donoghue to the UK (judgment on negligence which empowered consumers). Swamiji may have departed, but the doctrine of Basic Constitution will remain ceaselessly (optimistically),” senior advocate KV Viswanathan told HT.
“Bharati used to be revered as a God-like figure. He treated everyone with much affection and care. My stay at the Mutt afforded me the possibility to experience his hospitality and affection,” said advocate Raghul Sudheesh, a Kerala high court lawyer who had visited the mutt in 2011 to interview Bharati.
What did Bharati challenge?
He initiated the case on March 21, 1970 challenging the Kerala Land Reforms (Amendment) Act 1969. Later, three constitutional amendments – 24th, 25th and 29th – were passed by the Parliament and they became a subject matter of challenge on the grounds that they violated his essential correct to practice and propagate religion (Article 25), freedom of devout denomination to administer its devout matters including managing and administering its property (Article 26) and correct to property (Article 31) and correct to acquire and hold property [Article 19(1)(f)].
He had mounted the challenge after the land reforms law enacted by the Kerala government threatened to strip his mutt of its property, which used to be the source of income for the ashram.
“His petition before the Supreme Court used to be a part of his battle for survival of the mutt which he headed. The government used to be going to acquire the properties of the mutt which used to be its main source of income,” Sudheesh said.
Famous lawyer Nani Palkhivala appeared for Bharati before a 13-judge bench of the Supreme Court. Then again, it used to be senior counsel MK Nambiar, father of current attorney general KK Venugopal ,who managed the case on behalf of Bharati and who busy lawyers in Delhi to argue the case. It marked the only instance in the Supreme Court when a bench of 13 judges (which used to be the full strength of the apex court at that point of time) sat to come to a decision a case.
The case remains the longest heard before the Supreme Court; it lasted for 69 days between October 31, 1972 and March 23, 1973.
Significance of the case
How did a property case transform a watershed moment in the constitutional jurisprudence of the country?
The case assumed significance because of the debate which started around 10 years prior to it in terms of the extent of the power possessed by Parliament to amend the Charter of India.
Two Articles in the Charter were at the centre of this debate – Articles 13 and 368. Article 13 states that Parliament cannot make any law which violates essential rights guaranteed under Part III of the Charter. Article 368 empowers Parliament to make amendments to the Charter.
The issue, which came up before the court as early as 1964 in relation to Sajjan Singh v. State of Rajasthan, used to be if the word “law” under Article 13 included inside its scope a constitutional amendment under Article 368.
Whether a constitutional amendment under Article 368 is “law” inside the meaning of Article 13, then it would automatically follow that Parliament cannot amend the Charter to remove any essential correct.
In Sajjan Singh, a five-judge Charter bench of the Supreme Court ruled that the word “law” in Article 13 does not include a constitutional amendment under Article 368. This meant Parliament has unfettered power to amend the Charter.
This position used to be overturned in 1967 by an 11-jugde bench of the Supreme Court in the landmark case of Golaknath v. State of Punjab. In this judgment, it used to be held that an amendment under Article 368 is “law” inside the definition of Article 13.
This used to be seen as a major erosion of Parliament’s rights to execute the people’s mandate. The Indira Gandhi government saw this stance as a challenge to the will of the elected majority.
In 1971, it enacted the Charter (Twenty-Fourth Amendment) Act which expressly given that the bar under Article 13 will not apply to any amendment made to the Charter under Article 368. This meant that Parliament could amend any a part of the Charter, including essential rights.
Later, by the 25th amendment to the Charter, Parliament in 1972 curtailed the correct to property under Article 31, which used to be a essential correct back then (Article 31 used to be later removed from the list of essential rights).
The 29th amendment put the Kerala land reforms law beyond the purview of judicial review
The court upheld the validity of the entire three constitutional amendments – 24th, 25th and 29th – which have been under challenge.
It also overruled the judgment in Golaknath case and held that a constitutional amendment isn’t “law” inside the meaning of Article 13. Thus, it used to be ruled that Parliament has the power to amend any a part of the Charter.
This gave the look to be a victory for the government. Then again, it used to be not. The power to amend any a part of the Charter, which the court said that Parliament possessed, came with a rider — it will have to not infringe upon the Basic Constitution of the Charter.
Thus, the takeaway from the judgment used to be that Parliament could not do as it pleases with the Charter. Any law made by it, including constitutional amendments, will have to not violate the ethos and basic features of the Charter and the Supreme Court would be the last arbiter on if there is this kind of transgression into the Basic Constitution.
The court also did not provided any exhaustive list of what would constitute the Basic Constitution of the Charter. This used to be left open-ended and has been over and over again used to strike down constitutional amendments that the Supreme Court felt distorted the Charter.
“Kesavananda doctrine swung against the government by the narrowest of majorities of 7:6 with justice HR Khanna signing against the government in favour of the doctrine. It foreshadowed the coming of the Emergency because soon after the judgment, justices KS Hegde, AN Grover and JM Shelat were superseded for the post of Chief Justice of India and justice AN Ray who used to be junior to them used to be appointed to the post,” Sanjay Hegde said.
Justice Hegde, Shelat and Grover had ruled against the government while justice Ray had favoured the government.
As for Bharati, the mutt missing its properties since the laws challenged by it were upheld.
“He believed that the outcome of the case used to be fate and God’s decision. What concerned him most used to be that he mutt missing its source of income and had to depend on donations. He used to be, alternatively, happy that the case became landmark judgment and felt good approximately fighting to give protection to the Mutt and its properties,” Sudheesh said.
A Carnatic and Hindustani vocalist, he wrote many devotional songs and plays and used to be also a patron of Kannada art and culture. The mutt manages many educational institutions. It also runs a Veda Pathasala which imparted lessons in Advaitha and Vedic lessons to many students. In 2018, Bharati used to be honoured with the justice V R Krishna Iyer award.
Kerala chief minister Pinarayi Vijayan expressed his condolences. “He used to be a revolutionary who made rich contributions in cultural and educational spheres,” Vijayan said in a message. Minister of state for outside matters V Muraleedharan tweeted that the nation will all the time take into accout “his valuable contributions and teachings and they are going to continue to enlighten people.”
(K Ramesh Babu contributed to this story)