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--------------- Print Magazine --------------
 
  May 2016
 
  April 2016
 
 
 
 
Legal Article

THE KESAVANANDA BHARATI CASE

THE UNTOLD STORY OF STRUGGLE FOR

SUPREMACY BY THE SUPREME COURT AND PARLIAMENT

BY T.R. ANDHYARUJINA (EXCERPTS FROM A REVIEW)

 

This is a rare book and the only one of its kind which offers insights of all that had happened in the Court and behind the scenes in the celebrated case of Kesavananda Bharati v. State of Kerala . Appearing for the State of Andhra Pradesh, Intervener, I attended all the hearings and listened to the erudite arguments of the legal luminaries, Nani A. Palkhivala, H.M. Seervai, Niren De and others, each one assisted by a battery of bright, upcoming lawyers, including the learned author. It was a historic case and a turning point in the development of constitutional jurisprudence. The law declared was unprecedented and pragmatic-an act of judicial statesmanship. What culminated into Kesavananda was not a struggle for supremacy as the author would describe, but an effort by the Parliament and the Supreme Court to contain each other within limits. It all happened due to the thoughtless interpretation of the right to property with the aid of the right to equality which frustrated the attempts of Parliament to fulfil the promises made to the people by our leaders during the freedom struggle to usher in agrarian reforms for the benefit of the landless poor. When the Bihar Zamindari Abolition Act was struck down by the Patna High Court taking an unrealistic view of the compensation payable, the framers of the Constitution functioning as an Interim Parliament were shocked beyond words. They were driven to amend the fundamental rights and insert Articles 31A, 31B and the Ninth Schedule listing thirteen Acts which could not be challenged on the ground of taking away or abridging any of the fundamental rights. But for this Amendment, these Acts could have been declared unconstitutional and void. The First Amendment made in 1951 was challenged in Sankari Prasad Singh Deo v. Union of India . The Supreme Court upheld the amendments recognizing the competence of Parliament to amend Part-III of the Constitution so as to abridge the fundamental rights. The court ruled that 'law' in Article 13 does not include an amendment to the Constitution.

The learned Author has divided his untold story into twelve Chapters, each one of absorbing interest. In his preface, he posed the question "Why this book" and concluded it with the hope that it will be useful and of interest to lawyers, judges, academicians, historians and students of law. Indeed it is, even to laymen.

Going through the book has been a rewarding experience. I have not come across another book of this kind which has analysed in such depth the legal, political and professional aspects of an Indian decision. The Author has taken pains to collect a lot of information from published and unpublished sources. The untold story tells us what is not contained in all the judgments running into over 1000 pages of print such as the enormous effort and preparation that has gone into the arguments addressed by both sides and the judgments delivered. All those who had contributed to this greatest landmark in law have rendered lasting service to the Nation by providing necessary checks and balances which will help the Constitution to endure for ages. Andhyarujina's book is unique and deserves to be read by one and all.

P.P. Rao
Senior Advocate ,
Supreme Court of India

 

 
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