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Episode 2

Gathering Storm

The government has just lost three important battles in court: Golak Nath, bank nationalisation and privy purses. Indira Gandhi, newly re-elected, is determined to implement her socialist vision, even if this means trampling on the fundamental rights. Three of her most trusted ministers get to work—SS Ray, HR Gokhale and Mohan Kumaramangalam. They plot to undo the Golak Nath ruling, which prevents them from passing constitutional amendments that clash with fundamental rights. They pass the 24th and 25th constitutional amendments. Nani Palkhivala, fresh of his legal victories against the government begins publicly criticising these. A Kerala seer called Kesavananda Bharati is one of hundreds of petitioners who moves court against the takeover of his lands. This sets in motion a legal challenge: Kesavananda Bharati vs State of Kerala

Credits

Credits

Host: Raghu Karnad

Research Manager: Ramya Boddupalli

Research: Bhavya Dore, Ramya Boddupalli

Legal Research: Aishwarya Chaturvedi

Script writing: Bhavya Dore, Ramya Boddupalli

Script Editor: Supriya Nair

Producer: Gaurav Vaz

Sound Design, Score & Title Track: Saachi Rajadhyaksha

Mixing & Mastering: Ayan De

Advisors: Lawrence Liang, Ranvir Singh, Shyam Divan and Vivek Divan

Show notes
Guest speakers in this episode include:
  1. Arvind Datar
  2. Gautam Bhatia
  3. Lawrence Liang
  4. Namita Wahi
  5. Sandip Thakore
  6. Yazdi Dandiwala
 
Special thanks to Anand Thakore, Gita Sahgal, Homi Ranina, Lalitha Kumaramangalam, Reetika Subramanian and Vimal Thakore.
 
References
Audio and Sound clips:

https://www.youtube.com/watch?v=jb-QjXcF0qQ

https://www.youtube.com/watch?v=R8rePbSkHcE

https://www.moneycontrol.com/news/trends/tr-andhyarujinakesavananda-bharati-1131229.html

https://www.youtube.com/watch?v=vMEtX1n-BlYhttps://www.youtube.com/watch?v=G9PqkitIUsQ

https://www.youtube.com/watch?v=p6vyF9u542c

https://www.youtube.com/watch?v=422teIzGvyA

https://www.youtube.com/watch?v=wUHkTJUcQvY

https://bangaloreinternationalcentre.org/event/87-kesavananda-bharati-and-the-basic-structure-doctrine-sudhir-krishnaswamy-and-shruti-viswanathan/

Book and other resources

1. "Working a Democratic Constitution"  Granville Austin

2.  "India's Political Economy 1947-2004: A Gradual Revolution"  Francine Frankel

3. "The Kesavananda Bharati Case: The Untold Story of Struggle for Supremacy by Supreme Court and Parliament" TR Andhyarujina

4. "Intertwined Lives: P.N. Haksar & Indira Gandhi" Jairam Ramesh

5. "Indira Gandhi, Tryst with Power" Nayantara Sahgal

6. "Indira, the Life of Indira Nehru Gandhi" Katherine Frank

7. "We, the People: India: The Largest Democracy" Nani Palkhivala

8. Writ Petition

Corrections:

  1. It is unclear whether religious establishments in Kerala were exempt from state take over of land prior to 1968. The reforms introduced by EMS Namboodiripad were thought to be the most severe land reforms in the country [See: “Land Reforms in Theory and Practice: The Kerala Experience”  P. Radhakrishnan, Economic and Political Weekly Vol. 16, No. 52 (Dec. 26, 1981)]. However, we cannot confirm how it applied to religious establishments. We can confirm that Kesavananda Bharati’s holdings were threatened by the amendment. (See writ petition)  We regret the error. 

Transcript

Clip (full): Presidential assent brings into force the new Land Reforms Act in Kerala. Surplus land was surveyed and demarcated for redistribution. 

(Applause) At a ceremony in Thodupuzha about 6,000 title deeds are given to the landless. 

Host: Kerala witnessed massive social change in the late 1960s. In 1967, the Communist Party of India stormed to power in the state after a decade-long turf war with the Congress and other rivals. The new Chief Minister EMS Namboodiripad was set on delivering land reforms. Religious establishments had so far been exempt from having their land taken over, but in August 1968 … the government revoked that exemption. 

Among the people it affected was the young head monk of the Edneer mutt. 

 

Clip: Kesavananda Bharati Kerala ke Kasaragod sthir Edneer math ke pramukh aur Kerala sarkar ke bhumi sudhar kanoon ko Supreme Court me chunauti di thi jisme dharmik sampatti ke prabandhan par pabandi lagayi thi. 

 

Host: According to legend, Thotakacharya, one of the four main disciples of Adi Shankaracharya, set up the Edneer Mutt as a centre for Advaita philosophy. It held 681 acres of lush green land  in Kasaragod, in northern Kerala. The mutt earned income by letting out its land to local farmers who cultivated cashew, mango, jackfruit, coconut and areca nut.

Kesavananda Bharati took over as the head monk of the Edneer mutt at the age of 19 in 1960. Namboodiripad’s amendment would severely cut the mutt’s holdings. Kesavananda was desperate to avoid that. So he turned to a well-known lawyer with roots in a neighbouring village: Barrister MK Nambyar. Nambyar, whom we met in the first episode, agreed to help the young monk. 

March 1970. A few months after the amendment, Nambyar and his colleague JB Dadachandji, a solicitor in Delhi, filed a petition in the Supreme Court. Kesavananda Bharati’s petition was not unique. It was one of many hundreds of challenges to land reform laws before the court. But the events of 1971 would change the fate of Kesavananda’s petition and with it, the political history of India. 

We ended the last episode at Indira Gandhi’s massive victory in the 1971 general elections. After the upheavals of her previous term, Gandhi was relieved to be running a government that had a full majority in Parliament. It meant that she could finally pursue the ambitious programme of reforms that had won her exceptional popularity with the voting public. It would also put her directly on a collision course with the courts. I am your host Raghu Karnad. And this is season 2 of Friend of the Court,  a series about the most important case in the legal history of independent India. 

<Title Track>

Host: On 2nd April 1971 the Lok Sabha was debating the President's opening address all morning. Prime Minister Indira Gandhi’s turn to speak came at half past noon. She laid out her new government’s priorities. Economic self-reliance was a running theme in her speech. About halfway in, Gandhi made it clear that her government was keen on nationalising key industrial sectors so that resources would be “deployed in the best possible manner.” She said that the government saw “a growing and dominant role for the public sector.”

In its last term, the government had nationalised 14 major private banks. As we heard in the last episode, the court struck down this measure. Namita Wahi, a land rights expert and a Senior Fellow at the Centre for Policy Research, explains why.

Wahi: The court said that there were a few issues with the bank nationalisation ordinance. The first thing that the compensation that was paid to the banks for nationalisation of the property it set was illusory compensation because it was in the nature of bonds that had a very long period of maturing, which meant that not only was the entire business of the banks taken over, but they had no way of starting any other business. There was really not any compensation that they could use at this moment. Right? The second reason was that only these 14 banks had been nationalised. and other banks could still continue to do their business and new banks could be set up. There was no prohibition on that. So the court found this to be an unreasonably discriminatory classification against these 14 banks.

 

Host: In short, the court ruled that the bank nationalisation policy violated the fundamental rights to equality and property.  In its fresh term, the government acted swiftly to preempt such inconvenient rulings. Gandhi appointed three of her most trusted lieutenants: Siddhartha Shankar Ray, HR Gokhale and Mohan Kumaramangalam to key ministries.

 

Ray, a dapper, six-foot-four-inch tall lawyer, was a former minister in West Bengal before he began advising his lifelong friend “Indu” on political strategy. He was given the education ministry. The 55-year-old HR Gokhale became Law Minister, a role historically held by prominent lawyer-turned-politicians such as BR Ambedkar. 

 

Gokhale was one of the lawyers who argued for the government in the Golak Nath case. But the former trade union lawyer and Bombay High Court judge was not an obvious choice for the job. He had entered politics just five years earlier. Of these, he had spent just two years in the Congress. But what he lacked in experience, he made up for in strong ideological credentials. Rounding out the trio was Mohan Kumaramangalam. He was a Cambridge-educated lawyer, a former card-carrying member of the Communist Party of India and a friend of Indira Gandhi. Former Attorney General KK Venugopal was a close friend of Kumaramangalam. He tells us more about him.  

 

Venugopal: He was brilliant. And though he had lost a large number of years of practice, having been devoted himself to politics, and to the Communist Marxist party, he picked up the law in no time, and started arguing very big cases in the Supreme Court, as well as in the high court. And I remember, I had a big car at that time, which was parked in my father's house compound. And he had more than enough money to buy any number of, it was a Buic, which I had bought from the STC in Delhi. And he looked at that car, and walked all through that. And told me, this is something which I cannot buy. Not that they cannot afford it. But as a communist, I can't be seen in a car like this. 

 

Host: He joined the Congress in 1967 and sided with Gandhi when the party split in 1969 over political disagreements. The old guard of the Congress was aghast at Gandhi’s populist moves to abolish the Privy Purses and to nationalise banks. But Kumaramangalam was galvanised by her resolve. He soon became a strong influence, and succeeded in pushing far-left ideas to the centre of party discourse. In 1971, he was appointed as the minister for steel and mines.

Venugopal: He was very close to Indira Gandhi and she asked him if he would be prepared to be her attorney general… frustrated with the way in which the judiciary was striking down laws right and left. And that is how he made that very strong statement saying that confrontation with the judiciary and so on. 

 

Host: Kumaramangalam was a vigorous advocate of changing the Constitution to suit the government’s ideals. He’d been one of the government’s lawyers in the bank nationalisation case. He lamented that the court’s ruling in favour of the fundamental right to property paralysed efforts to usher in a more egalitarian society. The 1971 election results had barely sunk in, when Kumaramangalam, Gokhale and Ray rolled up their sleeves and began plotting to weaken property rights. To justify their moves, the ministers turned to another part of the Constitution. 

 

Nariman: Directive principles essentially are principles of governance. Now the most basic principle, which is laid down in Article 38, states that ultimately all legislation must see to it that there is justice, not in the sense of what we administer in the court of law. But justice that is social, economic and political. 

Host: That was from a lecture by Justice Rohinton Nariman, a former Supreme Court judge, in which he explains the directive principles of state policy. These are the Constitution's broad guidelines for policy making. The principles are a mish-mash of ideas ranging from implementing a uniform civil code to promoting cottage industries to preventing cow slaughter. Unlike fundamental rights, directive principles cannot be enforced by the courts. Rather, they are ideals guiding the governance of the country. The one that Kumaramangalam and his comrades were most interested in was Article 39. 

 

Nariman: 39 is a very important article which you must keep in mind, which is that the material resources in the community must be distributed best so as to serve what is called the common good.

Host: The Indira Gandhi government seized on this principle. It argued that this was an essential provision to create economic opportunities and a more equal society. Even if it came at the cost of individual freedoms. The government used Article 39 of the directive principles to attack property rights. In 1971, Kumaramangalam published a report titled “Constitutional Amendments: The Reason Why”. Here he argued that constitutional amendments were needed to subordinate the fundamental rights of the individual “to meet the urgent needs of society.” All of this sounded good in theory, but there was a catch. It came by way of the 1967 Golak Nath judgement. As we heard in episode one, this was the judgement that said Parliament could not amend fundamental rights. 

 

Andhyarujina: They said first we must overrule Golak Nath. Okay? But how do we overrule Golak Nath when the judges are like that? So they said we will ask for a re-look at Golak Nath by passing an amendment and the Supreme Court will have to then consider whether Golak Nath is correct to even nullify this amendment. 

 

Host: This is TR Andhyarujina, the late senior advocate and former solicitor general, who eventually appeared for the government in the Kesavananda Bharati case. This clip is from a 2015 public lecture he gave. His hair snow white, his spectacles perched on his hooked nose, Andhyarujina was visibly animated through his hour-long speech. As he recounted, the government planned to introduce an amendment to undo the Golak Nath judgement. 

On July 28th 1971 at 12.53 in the afternoon Law Minister HR Gokhale rose to introduce the 24th amendment in the Lok Sabha. The amendment would give Parliament back the power to change any provision of the Constitution, even the fundamental rights. We spoke to lawyer and constitutional scholar Gautam Bhatia about what the 24th amendment proposed to do: 

Bhatia: The government consistently maintained that it had plenary constituent power to amend all provisions of the Constitution unfettered by a substantive judicial review, and in response to Golak Nath, government through Parliament, moved to crystallise that position into the Constitution. 

Host: Constituent power is the power used to create or repeal a Constitution. The government’s view was simple: Article 368 gave Parliament absolute power to change the Constitution. And that is what the 24th amendment spelt out. Article 13 prevented the government from making a law that violates fundamental rights. So the government simply went ahead and changed that. 

 

Bhatia: The 24th amendment, for example, added to Article 13, clause four, that specifically said that nothing in this article shall apply to any amendment of this Constitution.

 

Host: By doing this the government was saying fundamental rights could not stand in the way of constitutional amendments. Law minister Gokhale said in the Lok Sabha that restricting Parliament, the only popularly elected branch of government, from changing the Constitution went against the very idea of parliamentary democracy. It was arresting the country’s progress. The amending process was a “safety valve” which protected the Constitution from decay. But not everyone bought the government’s thesis. Piloo Mody, the Swatantra Party MP from Godhra, responded with one word: slavery. The amendment came under severe criticism outside Parliament too. 

 

Palkhivala : Because the Indian mind is today conditioned to think that unless our fundamental rights are amended, directive principles cannot be implemented. I asked one simple question. Which scheme of economic reform which is wisely conceived and honestly implemented has ever been defeated by our fundamental rights? 

 

Host: Thousands gathered at Loyola College in Madras in 1971 to hear this talk. They had all come to listen to the man you just heard: Nani Palkhivala. 

 

Palkhivala: Point out to me one scheme of any state. Any state government or any central government. Not one. You will not find one scheme being defeated by the fundamental rights, not one. The fundamental rights are the iron framework within which your salvation can be reached, and you can work out your great destiny. And finally, may I say this, our Constitution as it stands today without the amendment will ensure that this great nation can have stability without stagnation and change without the destruction of human values.

 

Host: You can hear the spontaneous outbursts of applause from the Madras crowd that evening. By 1971, Palkhivala had been on the winning side of three important cases against the government: Golak Nath, bank nationalisation and privy purses. He spoke at public events organised by the Forum for Free Enterprise, which believed in free markets and limited state involvement in economic affairs. In his rousing rhetorical style, he analysed the implications of the 24th amendment: 

 

Palkhivala: This very Parliament has told you at the time when it passed the 24th Amendment as to what it proposes to do, if given the power to impeach fundamental rights under the 24th Amendment. And it has just told you that by introducing in Parliament, the 24th amendment bill, it tells you quite frankly, I must give full marks to this Parliament. It tells you quite frankly, what it proposes to do once given the power to subvert fundamental rights.

Host: As Palkhivala pointed out, the 24th amendment merely laid the groundwork for another change. One the law minister introduced on the same afternoon. Here’s Gautam Bhatia again:  

 

Bhatia: Alongside the 24th amendment you have the 25th amendment, which curtailed the right to property, again, altered the property clauses and crucially, it said that any law giving effect to Articles 39B and C of the directive principles of state policy would be exempted from judicial review, even if it violated the fundamental rights. So it sought to effectively close off certain laws from judicial review in a blanket way, which would prevent the courts from testing those laws.

 

Host: The 25th amendment came up for debate in November 1971. In the Lok Sabha, Law Minister Gokhale said the amendment would enable a “far-reaching programme aimed at restructuring the entire socio-economic fabric of the country.” 

It had two clauses. First, it gave Parliament the power to determine a fixed amount as compensation to property owners. Meaning, they would not receive the market value and this could not be questioned in court. This was aimed at thwarting compensation-related cases which would slow down the nationalisation of key industrial sectors. 

 

Palkhivala: Your property can be taken away without payment of compensation. And property doesn't mean zamindaris, palaces. It means your little shop, your little dispensary, your father's little work house. You may be repairing tyres or you may be an artisan, your own little home, your one acre of land, anything can be taken away without payment of compensation. All that has to be paid to you is an amount. Now, amount, as any dictionary will tell you, is a sum of money. A rupee is a sum of money, a 100 rupees is a sum of money, your property may be worth 1,000. But it can be taken away for 100 rupees.

 

Host: Then, the 25th amendment inserted a fresh clause, Article 31C, under the fundamental right to property. Put simply, 31C said no law could be challenged in court on the grounds of violating the fundamental rights to property, equality and freedom if that law intended to redistribute resources to achieve the common good. Gokhale said “the individual right to property must yield second place” to the public good. In his Loyola College lecture, Palkhivala painted a dire picture of how the 25th amendment affected the ordinary citizen:

 

Palkhivala: And this to my mind, is contempt for the Constitution. There is no other word for it. It is the ultimate in contempt for the Constitution. What does it mean? Without breaching any of the fundamental rights without even letting the people know that fundamental rights are gone? Any law has only to be passed with these opening words, that this law is intended to give effect to the directive principle of the state policy… And what is the consequence? No fundamental rights. 

 

Host: Such laws intending to implement directive principles could not be challenged in court, Palkhivala warned. He wrote to the Prime Minister, HR Gokhale and Mohan Kumaramangalam expressing his concerns. In Parliament, Kumaramangalam, one of the architects of the amendment, responded. He said Palkhivala was correct in his understanding of the 25th amendment. The government did intend to take away the power of judges from reconsidering any laws meant to achieve the common good. Kumaramangalam had long doubted the court’s competence to decide correctly on matters of socio-economic importance. Professor of law at Ambedkar University Delhi, Lawrence Liang explains the government’s misgivings: 

 

Liang: So here was a judiciary that was consistently in their opinion, ruling in favour of the elites ruling in favour of, of, you know, the princes and, and the bankers. They, on the other hand, were worried about poverty alleviation. Right? This is the entire plank that Indira Gandhi came on. So their argument is that, just like Nehru had said that this is an unelected set of elites who are actually coming in the way of the will of the people, Indira Gandhi basically says the same thing. So there is a populist rhetoric that underlies, you know, the entire attack on the judiciary, on the grounds that the judiciary is not even a legitimate institution, when it comes to actually exemplifying or embodying, you know, popular will. So it is on a lower plane than the Parliament ought to be. 

 

Host: Kumaramangalam rested his case by saying that matters of grave social importance should be resolved in the realm of politics, not the courts. India’s first Attorney General MC Setalvad, who was by then nominated to the Rajya Sabha, criticised 31C. He said that it was “making a departure from the basic concept of the Constitution.” Setalvad elaborated that, in the past when governments diluted the right to property they specified their objectives, like in the case of zamindari abolition. But justifying the dilution on the basis of vague phrasing like “the common good” made the fundamental rights vulnerable. 

Despite these strong objections, little came of the debates. By early December, both houses passed the 25th amendment with overwhelming support. In any case, the country wasn’t paying much attention to these events. A crisis was escalating on the eastern border with Pakistan. Even the opposition rallied behind Indira Gandhi as she led India into war against Pakistan to liberate Bangladesh. 

 

Clip: Atal Bihari Vajpayee: Adhyakshji, is aakraman ke kaal mein, ye Parliament Yahya Khan ke khilaf ek hathyar ke roop mein prayukt ki jaa sakti hai… Yahan janta ki pratinidhi baithe hain, aur duniya dekh rahi hai, aage bhi dekhegi, ki iss desh mein sankat ke ghadi mein ek hokar, aur pratyuttar dene ka saamarth hain. 

Host: By 16 December, West Pakistan forces had surrendered and Bangladesh would soon be independent. 

 

Clip: Indira Gandhi: The West Pakistan forces have unconditionally surrendered in Bangladesh. Dhaka is now a free capital of a free country.  The entire nation rejoices in this historic event. 

 

Host: By the end of 1971, Gandhi’s popularity had skyrocketed even further. The President gave her the Bharat Ratna, India’s highest civilian honour. Her fellow MPs gave her a rousing welcome in the Central Hall of Parliament. In footage from that day, Gandhi can be seen beaming in a beige saree as her colleagues garland her. Then, MPs across party lines showered her with praise for her visionary and courageous leadership. Gandhi soaked up the adulation but was in no mood to rest.

Clip: Indira Gandhi: All the world admires a deed well done. And I think with all modesty I can say that we have done this action well. (Applause) But let us not forget that the road ahead is still long and very steep and we have many peaks to scale. Let us hope we can do this with the same spirit in which we have faced this challenge and that we will go ahead from peak to peak raising our nation to new heights of quality and of excellence.

 

Host: In early 1972, she was back on the campaign trail for elections in 16 states and two union territories. She told packed rallies that it was time to return to the bigger war, the war on poverty. Garibi Hatao was back in focus. 

 

Once again, the Prime Minister led her party to a historic victory when she swept the March 1972 assembly elections.  There was no stopping the “Indira Wave.” Or so it seemed. 

 

Host: A thousand kilometres southwest of Delhi, lawyers in Bombay were gathering forces to challenge the 24th and 25th amendments. Their war room, so to speak, was across from the Bombay High Court, at the office of the iconic Mulla & Mulla and Craigie Blunt & Caroe, one of Bombay’s oldest law firms. Its clients included a host of sugar mills, which had been fighting the takeover of their farm land for nearly a decade. That included the Godavari Sugar Mills, which had been a party in the Golak Nath case.

As we heard earlier, even though the Golak Nath judgement said the fundamental rights could not be touched, the petitioners themselves gained nothing. The Godavari Sugar Mills had to hand over more than 10,000 acres to the state government. But the company was immediately back in the local courts challenging fresh amendments to Maharashtra’s land reforms laws. Driving its legal strategy was Dharamsinh Popat, one of the senior partners at Mulla and Mulla. Popat had earlier worked with Nani Palkhivala in the Golak Nath case. When the 24th and 25th amendments were passed, he saw an opportunity for a fresh challenge. His longtime junior Yazdi Dandiwala tells us what drove him. 

 

Dandiwala: Mr. Popat had a lot of work from sugar factories, he was closely associated with Somaiya group which had Godavari sugar mills and Godavari sugar mills had three factories all over in Maharashtra and in Karnataka. He was also associated with Kolhapur sugar mills. Now, these are the sugar factories who had lost their lands because most of these sugar factories in Maharashtra used to have huge areas of land, which they used to use for cultivating sugarcane, to ensure an assured supply of sugarcane for the factory. Now, under the land reform laws of Maharashtra, these lands were taken over. And sugar factories were in a quandary as to what could be the remedy because this takeover of their farms was, again, governed by the provisions of the Constitution, which did not permit any challenge to the law.

 

Host: Popat joined forces with JB Dadachandji, an old friend from Bombay who ran a bustling law firm in Delhi. He had worked with lawyers like MK Nambyar and Nani Palkhivala on other constitutional cases. It was Nambyar who had brought the case of the Kerala monk Kesavananda Bharati to Dadachandji’s notice. 

 

The petition they’d filed in March 1970 had been pending for two years–– along  with the petitions of the sugar mills and hundreds more, challenging land reforms. Then in May 1972 there was fresh impetus. 

 

That month, Parliament passed the 29th amendment, to shield the Kerala Land Reforms Act of 1969 from court review. Kesavananda’s original grouse was with this Kerala law, which allowed the land belonging to religious establishments to be taken over by the state. This new amendment said that law could not be challenged. This gave Kesavananda’s lawyers fresh grounds to argue against the constitutionality of the 24th and 25th amendments.

Sudhir Krishnaswamy, Vice Chancellor of the National Law School Bangalore, who has written an extensive analysis of the Kesavananda Bharati case speculates that Kesavananda stood out from other petitioners. Here he is explaining at a 2021 talk at the Bangalore International Centre:

 

Sudhir Krishnaswamy: The first and interesting thing that one picks up in Kesavananda is that the petitioner is a land holder for sure. But the land holder on behalf of a matha trust, you know, religious trust, which is a large land holder, and by bringing in the head of a matha, as the lead petitioner, it changed the political dynamic of the challenge to a certain extent. And this made a difference in the way the case came to be perceived. It did not tend to become a case relating to religious freedom. It didn't transform into a religious freedom case. But it certainly escaped the dynamic of the previous cases where it was a sort of landholder versus government battle.

Host: Looking back, it seems Kesavananda’s petition made for better optics compared to the bank nationalisation and privy purses cases. Those petitioners had been stereotypical old elites and business interests. They fit snugly into the government’s narrative that the moneyed classes were stalling its progressive reforms. Kesavananda’s petition could hardly attract that kind of charge. We do not know if Popat and Dadachandji deliberately made Kesavananda the face of the case. It might just have been serendipity. Kesavananda's petition was already pending before the court and it was relevant to Popat and Dadachandji’s concerns. That’s all that might have mattered. Meanwhile There were  new setbacks. The country’s top constitutional lawyer, MK Nambyar, who Kesavananda first approached, was now sick. Palkhivala, who had been publicly speaking and writing against the amendments, was the next obvious choice. Surprisingly, he hesitated. Sandip Thakore, one of the lawyers in Palkhivala’s team, tells us more. 

 

Sandip Thakore: I think he was reluctant to appear because he thought the case will be too long, the case would go on. This was my impression and what I heard from others. But I could never read his mind on this point, why he was reluctant to appear. Because he appeared in the matter as a missionary, a missionary for fundamental rights. 

 

Host: Though disappointed, Popat and Dadachandji turned to other towering figures of the Bar. Senior advocate Arvind Datar tells us: 

 

Datar: Then they went to CK Daphtary. Daphtary said that this is going to take not only a lot of time, but I will argue and other people will simply follow my argument. He was also not very keen, then they went to Chagla, who by the time was 73. And Chagla said this is going to take a huge amount of time and he may not have the energy and the stamina to argue for days on end. it is going to be a massive case. 

 

Host: The retired Chief Justice of the Bombay High Court MC Chagla, accepted the case despite his initial reluctance. Meanwhile, the solicitors had roped in newly appointed senior advocates Anil Divan and Soli Sorabjee. Divan had established a flourishing commercial law practice, and Sorabjee ran a successful customs and excise practice. Sandip Thakore was also inducted into the team. 

Thakore: By the time I was briefed with Divan for Kesavanada Bharati’s case, I was sent 10 days in advance to do some work. To Delhi. There we had a conference with Divan. We had several conferences with Divan. Divan and I were briefed. And we were to be led by somebody or the other. Fali had by then become ASG. So Fali was out of the picture… I was appearing for all the 11 sugar companies. They worked together.  

 

Host: In all, 28 parties challenged the government’s amendments either as petitioners or as intervenors. Besides Kesavananda Bharati and the Godavari Sugar Mills, the list included companies such as Oriental Coal, Shethia Mining and Manufacturing and the Belapur Sugar & Allied Industries. The coal, mining and sugar factories funded the litigation. Two former rulers of Princely States also joined the challenge: they were against the 26th amendment, which proposed to do away with the Privy Purses.

The team was beginning to take shape. On 4th August 1972, they filed an application before a bench headed by the Chief Justice of India. They asked the court to expand the scope of Kesavananda’s original petition to include the 24th, 25th and 29th amendments. The ones related to the amending power, right to property and the Kerala land reforms. They said that the first two created a “new Constitution” different from the one adopted in 1950. On 9th August, MC Chagla appearing for Kesavananda, said that the amendments went against the Golak Nath ruling. Attorney General Niren De, the government’s top law officer, did not oppose the plea. The government hoped that a hearing would lead to the Golak Nath ruling being overturned. The next day, the bench admitted the plea and set  a late October date for the hearings. 

The petitioners began preparing in earnest. They huddled in conferences in the Gothic building of the Bombay High Court Library or across the road at Popat’s first-floor office in Mulla House. By early October, the action shifted to Delhi. Just days before the hearings were to begin, Palkhivala was persuaded by Chagla and Daphtary to take the case. With his arrival, the dream team was complete. Dandiwala:

 

Dandiwala: We had a team of prominent lawyers like we had, of course, Mr. Palkhivala, who was leading us. In addition from Bombay, we had both Mr. Anil Divan and Mr. Soli Sorabjee, as well as Mr. Sandip Thakore. We had other old stalwarts, like CK Daphtary, Mr Chagla. Then there were one or two gentlemen from south — Hyderabad and all those things. And our own lawyer team was almost like 20-25 people in that sense. Now, Mr. Palkhivala, Sorabjee, Mr Popat, all were staying at the Oberoi hotel. And from Bombay, there were three solicitors Mr. Popat who's representing this Kolhapur Sugar mill and Godavari sugar mill. Then there was Mr. Bhakta from Kanga and Co.

 

Host: According to Anil Divan’s recollections of the case, Palkhivala arrived in Delhi a few days before the hearings began. He asked Divan and Sandip Thakore to find cases anywhere in the world where constitutional amendments had been struck down by the courts. The men combed through all the available literature. But they were left puzzled: no such case existed. Thakore:

 

Thakore: Nani’s face the way he was depressed.. My god. He said he was not getting help from anybody.. He decided to appear in the case but there was no help.. Anil Divan suddenly walks into the room and he gave him Conrad’s article. And then his face changed completely.. He was like a baby who was first denied something and then everything in the world came to him..  How am I going to argue this case without a precedent.. Then we showed him an article by Dieter Conrad and his face immediately lit up. He used this article to argue.  

 

Host: Dieter Conrad was the German professor whose lecture made a cameo in the Golak Nath case. Since then, he had expanded on his ideas in a 50-page article. He cited the example of 1930s Germany to show how badly things could go if the legislature had unchecked power of amendment. Palkhivala would go on to craft his arguments using Conrad’s work. Could the 52-year-old star of the bar pull off another victory against the government? Would Palkhivala manage to protect the sanctity of fundamental rights? This time the stakes were higher than ever before: the future of the Constitution itself hung in the balance. Join us in the next episode of Friend of the Court as Palkhivala argues for 29 days before the largest-ever Supreme Court bench. Until then, I’m your host Raghu Karnad. 

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