Anil Divan Foundation

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Transcript

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Montage of (prominent) voices talking about basic structure: 

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CJI DY Chandrachud : The basic structure that is the values of the Constitution that form the basis of the Constitution cannot be abrogated by Constitutional Amendments…

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Vice President Dhankar: In Kesavananda Bharati’s case the Supreme Court came up with the basic structure. Parliament can amend the Constitution but not the basic structure. With due respect to the judiciary I cannot subscribe to this. 

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Arvind Datar: Basic structure is so important. It’s virtually like oxygen to a democracy. You take away basic structure, and it's a matter of time before the next Parliament takes away basic rights and so on.

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Host: What is the basic structure? If, like me, you are not a lawyer, chances are that the only time you have heard about it is when it’s been in the news. Like when the vice-president had questions about it. Or when courts have invoked it while passing an important judgement. 

But if you ask a law student or a lawyer, they’ll tell you that the basic structure doctrine is the guiding light of Indian constitutionalism. It cannot be found in the text of the Constitution. Instead, the doctrine was coined by the court in what became known as the Kesavananda Bharati case in 1973. It answered a constitutional question that had perplexed the court, lawyers and scholars since the early years of the republic. Put simply, the question was: to what extent could Parliament amend the Constitution? The future of Indian democracy rode on the answer to this question. 

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2023 marks exactly 50 years since the Kesavananda judgement that gave us the concept of the basic structure. Even though we may think of it as a legal concept removed from our everyday life, the doctrine has in fact been fundamental to many aspects of public life in India. It has helped strengthen our democracy and protect our rights. 

 

Liang: So Kesavananda Bharati, in many ways, is like the Sholay of legal judgments in India. 

 

Host: This is Lawrence Liang, Dean at the School of Law, Governance and Citizenship at Ambedkar University Delhi.

 

Liang: Whether you're a law student or a non-law student, one case that you will have heard about is Kesavananda. And we spent a considerable amount of time when we were in law school and studying constitutional law, dealing with this entire question of the relationship between the government and the judiciary and the tussle between them that culminated finally with the Kesavananda case. 

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Host: In 2017, Lawrence got access to senior advocate Anil Divan’s files. Besides being a brilliant legal mind, Divan was known for meticulous record-keeping – you would be amazed at the bound copies of whole newspapers from years ago that can still be found in perfect shape at his office. Lawrence first found court papers related to the many PILs and writ petitions that Divan fought. They formed the basis of the first season of Friend of the Court. 

Then, he was shown the original court papers from the Kesavananda Bharati case which included play-by-play narrations of court proceedings. 

 

Liang: When I looked at this material, and I held it, my hands started quivering. Because this was really, in some ways, a very uncanny moment where this case that you only knew as text as law, and as history, you were actually holding it in your hands right here… And when I was reading these, especially that file with all of the questions posed by the judges, I found myself transposed to the courtroom seeing a bespectacled Nani Palkivala, looking at these 13 judges seeing justice Matthew threw a question at him, seeing Seervai frown on the side… So in that sense, it was a remarkable moment as a law law student and as someone interested in legal history

 

Host: The voluminous records are preserved in maroon, grey and brown hard binding. They lie piled up behind sliding glass cabinets in Divan’s basement office in south Delhi. Along with them are old registers filled with Divan’s handwritten notes of court proceedings. These records offer a unique window into the hearings and the minds of the lawyers involved, a sense of history as it is unfolding in real time. 

The case itself started out relatively inconspicuously. Kesavananda Bharati vs State of Kerala was one of the hundreds of petitions challenging land reform laws. The monk who lent his name to the petition played only a small role in it. 

 

In 1969, Kesavananda Bharati, the head of the Edneer mutt in Kerala, was on the verge of losing vast tracts of his monastery, thanks to a land reform law. He approached the famous constitutional lawyer MK Nambyar to fight his case. That’s about as far as his involvement went. 

 

Datar: In fact, Mr. Andhyarujina told me that one day His Holiness called him and said, “Why is my name coming every day in the paper? I've not done anything. Every day, my name is in the paper.” So he got worried. He said, "Why is there publicity for me: Kesavananda Bharati, Kesavananda Bharati?” And so they said no, because his case was the first case it became the case.

 

Host: This is Arvind Datar, a senior advocate. The Kesavananda Bharati case created a buzz in the media. It set many records that remain unbroken to this day. It was heard for 66 days between October 1972 and March 1973 by a 13-judge bench; the longest-ever hearing before the biggest-ever bench. 

Almost a hundred lawyers were involved, India’s most prominent and expensive lawyers at the time, Nani Palkhivala, HM Seervai, Niren De, MC Chagla, CK Daphtary, Anil Divan, Soli Sorabjee, TR Andhyarujina and their teams of solicitors and juniors shuttled between Bombay and Delhi every week to fight this case. In Delhi, the government’s lawyers led by HM Seervai camped out at the Ashoka Hotel and the petitioners’ team led by Nani Palkhivala at the Oberoi Hotel. 

 

The case itself was set in motion by Indira Gandhi’s socialist policies. These policies were passed as constitutional amendments which clashed with the nation’s founding principles, especially fundamental rights. But the government was adamant that it was a small price to pay for the common good. Ultimately, the court held that there were unspoken limits on Parliament’s amending power, that it could not tamper with the basic structure of the Constitution.  

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But the case and the buildup to it still remain one of the least understood events of our popular history. We might know the legacy of the case, but what actually happened in court? What happened before it even reached the court? And what did the dramatic political events of the mid-70s have to do with it? 

This is Friend of the Court, a podcast series from the Anil Divan Foundation, where we explore historic legal cases. 

I am Raghu Karnad, a journalist and a writer. Over the next seven episodes, we will reconstruct the case, the events that led up to it and its legacy. We will hear from lawyers involved, families of the lawyers who are no more, journalists and constitutional experts. We will also take a peek into Anil Divan’s files, newspaper archives and personal memoirs. 

 

Join us in this season of Friend of the Court as we travel back to the early decades of our republic to explore the events in the run up to India’s most important court case and the events that followed.