Judges should not shy

Judges should not shy away from constructive criticism of their actions and decisions as such review leads to the development of law, Chief Justice of India S.H. Kapadia has said.

Chief Justice Kapadia said this here Tuesday while releasing a book, "The Kesavananda Bharati case: The untold story of struggle for supremacy by the Supreme Court and Parliament", written by eminent jurist T.R. Andhyarujina.

"We judges are not afraid of constructive criticism of our actions and decisions by the bar," Chief Justice Kapadia said.

He regretted that senior counsel are too engaged in their professional pursuits to pay attention to the development of statutory and constitutional law.

He declined to be part of the discussion on the plea that judges should not get involved in debatable issues.

The book recounts the "tensions and conflicts in the Kesavananda Bharati case - not only between the rival sides but also among the judges, some of whom had preconceived views because of being judges in earlier cases and others by reason of their selection by the government."

The book reveals "the stratagems of the (then) Chief Justice S.M. Sikri on the date of the judgment on 24 April, 1973 by which he formulated a paper hurriedly prepared by him 'The Views of Majority'".



"This paper was signed in Court by 9 judges, 4 other refusing to ascribe their signatures to it." This has come to be known as a majority decision in the Kesavananda Bharati case.

Andhyarujina said the book deals with the actual account of how the case developed and dealt with and the decision arrived in a "dubious manner".

His account of the case is based on his "recollections and notes maintained by him as a counsel in the case and on later interviews by him with some of the judges in the case".

The book was described by various speakers as a maiden attempt in Indian judicial history to see beyond the pronouncement of a judgment and how it was arrived at.

In the case, the Supreme Court held that parliament cannot tinker with the basic structure of the constitution.

It laid down 35 parameters to define the basic structure of the constitution that include rule of law, secularism and separation of powers between the three organs of the state -- legislature, executive and judiciary.

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Book on Kesavananda Bharati case will be released on Tuesday

A 13-judge Bench of the Supreme Court, the largest so far, decided the Kesavananda Bharati case after hearing arguments by eminent lawyers spread over 66 days. The judgment, delivered by a majority of 7:6 on April 24, 1973, held that Parliament could not alter the basic structure of the Constitution by an amendment.

Chief Justice of India S.H. Kapadia will release a book dealing with this case at a function here on October 18. The senior advocate and former Solicitor- General, T.R. Andhyarujina, has written the book, explaining the culmination of a struggle for supremacy over the power to amend the Constitution between Parliament and the government on the one hand, and the Supreme Court on the other.

Mr. Andhyarujina says: “This book is a gripping story of the conflict and tensions in the Kesavananda Bharati case and its aftermath, which has not been disclosed so far. It is based on the author's recollection and [the] detailed notes maintained by him as counsel in the case, and on later interviews by him with some of the judges in the case.”

The book reveals that prior to the hearing, the government attempted to influence the court by appointing judges who it expected would decide in its favour. It shows the preconceived views of some of the judges on Parliament's power to amend the Constitution, the internal conflicts and factions among the judges, and the charged atmosphere in the court till the delivery of their judgments.

In the words of Mr. Andhyarujina, the battle began when the Supreme Court, in the Golak Nath case in 1967, held that fundamental rights could not be amended by Parliament. Parliament and the government were not reconciled to the ‘view by majority' in the Kesavananda case and were determined to get it overruled. On the day of the judgment (April 24, 1973), the government superseded three senior-most judges, who had decided against the government and appointed Justice A.N. Ray as the next Chief Justice on the retirement of Chief Justice S.M. Sikri. In 1975, with the help of Mr. Ray, the government tried in vain to reverse the majority view in the Kesavananda case by another Bench of 13 judges.

However, during the emergency, the government nullified the Kesavananda case judgment by the 42nd amendment, but this was overruled in the Minerva Mills case in 1980, when Y.V. Chandrachud was the Chief Justice.

Mr. Andhyarujina says the purpose of the book, coming as it does after 38 years of the event, was “an interaction of constitutional law with the politics of the day; the story of the Kesavananda case requires to be widely known.” Though such an exercise is being done in the United States, it has not been done in respect of any leading case in India, hence his attempt.

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