50 Years of Kesavananda Bharati: Remembering Justice Khanna and Nani Palkhivala

Surrounded by neighbours that have had multiple trysts with dictatorship, military rule and one-party political systems, it comes as a surprise that India has managed to survive and thrive as a democracy. While a responsive legislature and a proactive citizenry is often credited for the same, it is a strong and accessible judiciary that the nation owes a significant debt to for the same.The 24th day of April this year marks a truly momentous occasion for the nation with the completion of 50 years of the landmark judgment ‘Kesavananda Bharati v State of Kerala’ under the aegis of the then-Chief Justice SM Sikri. As a case of immense significance, it would not be an exaggeration to credit this judgment for having single-handedly altered the future of the nation.In a story truly more remarkable than screenplays written for period dramas in India, the verdict saw a wafer-thin majority of seven judges to six holding that the power of the Parliament to amend the Constitution of India did not include the power to alter its basic structure. More commonly referred to as the Basic Structure judgment or the Fundamental Rights case, the judgment saw the constitution of the largest Bench (13 judges) as well as the lengthiest arguments (67 days) in the history of the Supreme Court. While a great deal has been written about the judgment and its significance, we would also do well to remember more frequently the contributions made by towering personalities who were an integral part of this legal struggle – particularly Justice Hans Raj Khanna and Nanabhoy Ardeshir Palkhivala.Remembering How Kesavananda Bharati Case Saved Fundamental RightsAlthough there were seven judges who stood firm in the face of autocracy and prevented India from collapsing into a state of chaos, there was one who is remembered more fondly than the others.Justice Khanna proved, time and again, that standing up for the rights of the oppressed took a lot more strength in an era with autocracy on the move.In fact, his lone dissenting opinion in a habeas corpus case during the Emergency upholding the cherished ideals of democracy served as a beacon of light for the subsequent government and became the law of the land thereafter.It is a true marker of Justice Khanna's courage that he chose to decide against the draconian provisions during the Emergency even when the great judge was aware that doing so would inevitably cost him his day in the prestigious office of the Chief Justice of India.Although he never made it to the office on account of being superseded by a junior judge, Justice Khanna was immortalised by virtue of his courage. His dissent was never forgotten, and a life-sized portrait of him still adorns Courtroom Number 2 of the Supreme Court of India.Similarly, though there are so many renowned books written about the life of the great legal stalwart Nanabhoy ‘Nani’ Ardeshir Palkhivala - the lead counsel for the petitioners in Kesavananda Bharati, it is my humble belief that the incredible amount of respect, awe and gratitude that Palkhivala receives still falls short of the magnitude of his contributions in the case and consequently, the path our nation embarked upon thereafter. In fact, in a case as sensitive as this, with wide ramifications, backroom manoeuvres as well as pressure tactics from an autocratic government, it was the intellectual honesty and the force of Palkhivala’s submissions that are credited to have appealed successfully to the conscience of two judges on the Bench. Eventually, that was exactly the kind of margin that tilted the balance and saved the nation from rotting as a dictatorial police state.The PMLA Judgment and How It Allows ED To Give Fundamental Rights a SkipInterestingly enough, call it good fortune or mere coincidence, but two significant turn of events unfolding exactly the way that they did saw Palkhivala at the forefront of this litigation battle. First, in the early 1960s, Palkhivala was offered the judgeship of the Supreme Court of India which could have made him the longest-serving Chief Justice of India for a long fourteen years. Second, Palkhivala almost refused to appear for the petitioners in this case. In fact, the petitioners had to approach the great MC Chagla (who could not argue for several days) as well as the eminent CK Daphtary (who was reluctant to be the lead counsel) before finally managing to persuade Palkhivala to lead the arguments. If he had accepted the judgeship in the 1960s or stood firm on his decision to not appear in the case in 1970s, things could have turned out very differently for the nation. However, I speculate it would have been unlikely that he would have bowed down to the autocratic nature of the government or allowed the unfortunate series of supersessions in the 1970s as the Chief Justice of India.It is quite unfortunate that the curriculum in schools does not teach students in detail about Justice Khanna or Palkhivala and their contributions to the society. It seems most unfair that the school curriculum usually dedicates scores of chapters to political parties, leaders and developments but relegates this significant chapter of Indian political and legal history to such little space.Revisiting Ambedkar's Politics: Representation Can Be Indian Govt's Best TributeWhile Justice Khanna’s remarkable autobiography Neither Roses Nor Thorns may seem voluminous for young students at school, at least a few excerpts from the book could contribute towards making more responsible young citizens of the nation.The Kesavananda Bharati judgment certainly widened the expanse of powers enjoyed by the judiciary, but it also served as an important reminder to an overzealous executive that its wide range of powers still had limitations. As a collective, we must not only celebrate the judgment that was delivered 50 years ago but also strive to imbibe lessons from the lives of the two great personalities who made significant contributions to the cause of democracy in the country.(Kumar Ritwik is an advocate practicing in the Delhi & Patna High Courts. This is an opinion piece. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)Why BN Rau Must Be Remembered Along With Ambedkar As Constitution’s Co-Architect

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50 Years of Kesavananda Bharati: Remembering Justice Khanna and Nani Palkhivala

The judgement served as an important reminder to an overzealous executive that its powers had certain limitations.

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