The Basic Structure case and how the government tried to pack the Supreme Court to rule in its favour

The term ‘court packing’ is referred to as the practice of a government trying to populate a court with judges who agree with its policies. It was popularised during the era of United States President Franklin D Roosevelt, who attempted to add more judges to the Supreme Court with the aim of obtaining favourable verdicts in favour of his New Deal policies.

India witnessed its own version of court packing during the 1970s when the government tried to appoint favourable judges who would rule in its favour in the case of Kesavananda Bharati v. State of Kerala.

On the 50^th anniversary of the judgment, we revisit the story of India’s court packing episode.

To give some background, in 1967, the Supreme Court in IC Golaknath v. State of Punjab curtailed Parliament’s power to amend the Constitution and held that there existed implied limitations on these powers. The Court further held that Parliament through its amending power could not abridge or amend fundamental rights under the Constitution.

This judgment displeased the Union government headed by then Prime Minister Indira Gandhi, who saw it as an attempt to curb her powers. To nullify the decision of Golaknath, the government passed the 24^th Constitutional Amendment. This Amendment practically allowed Parliament to add, modify or repeal any part of the Constitution.

The government anticipated that the amendment would be challenged before the Supreme Court and hence, to prevent a repeat of Golaknath, it decided to pack the Court with judges who would help in overruling that judgment and upholding the amendment and other government policies.

I am going to overrule the Golaknath Case: Justice Dwivedi

Noted historian Granville Austin writes that then Union Minister of Steel and Mines Mohan Kumarmangalam, Chief Minister of West Bengal SS Ray and Union Law Minister HR Gokhale - all trusted aides of Indira Gandhi - had begun packing the Court in 1971 in order to overturn Golaknath. Many of the judges on the Bench of Kesavananda Bharati were their nominees. For instance, Justice KK Mathew was considered a Kumarmangalam nominee, Justices DG Palekar and YV Chandrachud were considered Gokhale nominees, and Justices MH Beg and AK Mukherjea were considered as Ray nominees.

An appointment that caused a major controversy was that of Justice SN Dwivedi (another member of the Kesavananda Bench). Justice Dwivedi in his farewell speech at the Allahabad High Court had remarked that he was going to the Supreme Court to overrule the Golaknath case. As per former Chief Justice of India Mohammad Hidayatullah, the Advocate General of Uttar Pradesh was present during the speech and later informed him that he was shocked at the brazenness with which Justice Dwivedi revealed his predetermined views and the purpose of his mission.

Another member of the Bench, Justice PJ Reddy in his memoir writes that Chief Justice SM Sikri told him that he was not in favour of Dwivedi’s appointment since he was a comparatively junior judge at the Allahabad High Court and had not made a mark as a judge. Justice Sikri also told him that there was considerable pressure from the government to appoint Justice Dwivedi before any other person was considered. Some saw this appointment as an act of political manoeuvring, because Justice Dwivedi and Cabinet Minister HN Bahuguna were in-laws. Interestingly, all these judges except Justice Mukherjea voted in favour of the government in Kesavananda.

There would be dire consequences if the judgment is against the Government: AG Niren De

The court packing was evident on the Bench as well. Justice Reddy writes,

“I got an impression throughout that minds were closed, and views were predetermined.”

Chief Justice Sikri, Justices JM Shelat, KS Hegde and AN Grover were opposed to the government whereas Justices Ray, Mathew, Palekar, Beg and Dwivedi were in favour and Justices Khanna, Mukherjea, Reddy and Chandrachud were non-committal.

An interesting exchange on the Bench between Justice Dwivedi and Nani Palkhivala (the lawyer for the petitioner) substantiates this belief. During the hearing, Justice Dwivedi told Palkhivala that if he agreed to property rights being taken away, he (Dwivedi) would get Parliament to declare that other fundamental rights would not be taken away. Palkhivala was surprised because he was not arguing for property rights and instead was pushing for an implied limitations theory. On this exchange, Justice Reddy writes,

“How could a judge give such an assurance as Dwivedi offered and what authority he had to do so passed everyone’s contemplation?”

Dwivedi later rang up Justice Reddy and regretted making that remark.

Palkhivala told Granville Austin that the pressure during the case was unbelievable. As per some judges on the Bench, during the proceedings Attorney General Niren De threatened the Court that there would be dire consequences if the judgment went against the government. Justice Reddy wrote about this in his concurring opinion in the following words,

“There have again been arguments for taking consequences into consideration which really highlighted what would be the dire consequences if the result of the decision being one way or the other, but this Court ought not to be concerned with these aspects, if otherwise the decision is in accordance with the view of the law it takes.”

You need not disbelieve these accounts: Justice YV Chandrachud

The government’s interest in the proceedings did not stop at appointments. Efforts were made to influence the judges as well. SS Ray and his wife had lunches with Justice Mukherjea and his wife to persuade the judge to take a view favourable of the government. In fact, as per Justice Reddy, Justice Mukherjea was told that if he didn’t agree, he would be losing a great opportunity for a higher post. Justice Mukherjea forthrightly refused the position.

Further, Gokhale, Kumarmangalam and Ray would actively seek information from inside the Bench. It is believed that the government was able to procure the drafts of the opinions of some judges. Justices Beg and Dwivedi are often considered responsible for this. In fact, as per Justice Reddy, Kumarmangalam had congratulated some of his colleagues a week before the judgment. He writes,

“Mohan Kumarmangalam congratulated my colleagues a week before the judgment was pronounced revealing the government’s foreknowledge that the three senior most judges would be against the government.”

In fact, on the morning the Court delivered the judgment, the government had in its hand the texts of all the opinions. Austin writes that when he inquired from Justice YV Chandrachud the veracity of these allegations, he responded,

"You need not disbelieve these accounts."

Fortunately, the government’s court packing episode did not result in a favourable verdict in the Kesavananda case. The Court through a 7:6 split judgment held that Parliament’s amending power was not absolute and there were implied limitations on it. Using its amending powers, Parliament could not amend or abrogate the basic features of the Constitution.

Subsequently, Chief Justice AN Ray (the first Chief Justice to be appointed in contravention of the seniority norm) attempted another episode of court packing with the aim of overruling the judgment in Kesavananda Bharati, but that is a story for another day.

Sources:

(a) Judiciary I Served by Justice P Jagamohan Reddy;

(b) Working a Democratic Constitution: A History of the Indian Experience by Granville Austin;

(c) Supreme Whispers by Abhinav Chandrachud

Swapnil Tripathi is an Advocate and a DPhil (in Law) Student, University of Oxford. He tweets at S_Tripathi07.

You can read more interesting anecdotes concerning the Kesavananda case here, here and here.