Friend of the Court Season 2 presents the story of Kesavananda Bharati vs State of Kerala which established the basic structure doctrine. Fifty years since the verdict was pronounced, the doctrine continues to be the guiding light of Indian constitutionalism.
Over seven episodes, season 2 reconstructs the events that led up to the case, the courtroom drama and the aftermath of the case. We hear from lawyers and journalists from the time. The show also features snippets from Anil Divan's detailed notes from the court, archival clips and rare interviews with jurists.
Listen on any major podcast platform or by clicking the links below.
You can find a curated list of the research material here.
Kesavananda Bharati vs State of Kerala is India’s most important legal judgement. In 2023, fifty years since it was pronounced, it continues to guide the country’s constitutional values and jurisprudence. Friend of the Court season 2 pieces together the events in the run-up to the case, the verdict, and the events that followed from in-person interviews with surviving participants and family members, Anil Divan’s meticulous notes, court filings, personal memoirs and voluminous newspaper archives.
India is newly independent, with a path breaking new Constitution in place. The Nehru government is eager to implement land reforms to tackle poverty and inequality. But the fundamental rights provision of the Constitution is coming in the way, particularly the right to property. The government needs to circumvent this. It brings in constitutional amendments to protect its pet policies from court review. This brings Inder Golak Nath to court, resulting in Golak Nath vs State of Punjab. Sandip Thakore, one of the few surviving participants from the case, tells us how it unfolded. Soon after, Indira Gandhi comes to power, and implements bank nationalisation and abolishes princely privileges, setting her up for even more clashes with the courts.
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
A 13-judge bench is constituted for the very first time in the Supreme court. We hear about the government’s attempts to pack the court with government-leaning judges to obtain a favourable verdict. We hear about the divisions and backgrounds of judges on the bench. Yazdi Dandiwala, a former article clerk, takes us through the petitioners’ preparations. On October 31, 1972 Nani Palkhivala opens arguments for the petitioners. He leads an impassioned defence of fundamental rights. We hear about all the courtroom dynamics, and the behind-the-scenes drama before Palkhivala brings his arguments to a close with a flourish.
It is now the government’s turn to argue. Who will lead arguments? The advocate general of Maharashtra, HM Seervai, or the attorney general for India, Niren De? Typically, the attorney general, the country’s law officer, leads arguments in major cases. But Indira Gandhi’s ministers have assured HM Seervai that he will lead. For many weeks a tension has been palpable between the two, and it finally comes to a head. The matter is eventually resolved. Both men strongly contest the petitioners’ submissions and defend Parliament’s power to change the Constitution as well as the amendments being challenged. As one judge falls sick and with time ticking, every day in court matters. This leads to more drama, and a confrontation in the judges’ chamber, before the case is finally closed.
Judgement day finally arrives after 66 days of arguments. Chief Justice Sikri is also set to retire the next day. But the government has yet to announce his successor. When the judges assemble, and start to read their judgements one by one, at first there is no clarity on which way the bench has ruled. Then something unexpected happens: Sikri issues an unusual statement called “View of Majority”--- some judges sign, some do not. It soon becomes clear which way the bench has ruled: we arrive finally at the basic structure doctrine. We unpack the judgement to understand what it all means. Soon after, the supersession drama ensues—three senior judges are sidestepped and a more junior judge is appointed. Indira Gandhi’s election petition is heard in the high court. Matters come to a head shortly after with the imposition of emergency.
The emergency brings in a series of draconian measures including mass sterilisation drives, slum demolitions and press censorship. The conflict between the court and the government seems to have abated for now. Even the basic structure judgement has been dormant for two years. But suddenly, a bench is constituted to review the judgement. A fresh phase of courtroom drama unfolds as Nani Palkhivala comes to defend the judgement. It is described as his finest hour in court. The Gandhi government moves to make other drastic changes to the Constitution. After that, the emergency is abruptly lifted and elections are held.
The new Janata government is keen to roll back the excesses of the emergency. Law minister Shanti Bhushan has to undo the constitutional damage of the emergency years. Legislation doesn't solve all the problems—one final battle remains. And Nani Palkhivala returns to fight for the basic structure. The Minerva Mills case becomes the final phase of this battle between the court and the government. We then examine the legacy and impact of the basic structure judgement both in India and abroad.