The Kesavananda Bench II: The Chandrachud Angle

“After all the eleven judgments of the Court were orally pronounced on 24th April, 1973, CJ Sikri produced and read out in Court a paper which was called the “The View by the Majority” and passed it on for signatures of all thirteen judges on the bench. Four judges, Justices Ray, Mathew, Dwivedi and Beg would have nothing to do with it and demonstrably refused to sign it. Never had the Supreme Court seen such a spectacle. No discussions took place in Court at any time nor could they possibly have taken place in the chambers of the judges on what was “The View by the Majority”, arising from the eleven different judgments. Justice Y.V. Chandrachud later in an interview said “The View by the Majority” paper was not circulated by the CJ. It was presented in Court and he and other judges were constrained to sign it as the CJ was retiring the next day.”

T.R. Andhyarujina, The Kesavananda Bharati Case (Universal Law Publishing, 2013).

Many leaders of the Indian bar assert that Palkhivala should be given credit for creating the doctrine of basic structure. Indira Gandhi said the judges had ‘invented‘ the phrase because it did not exist in any Constitution.

Recently, at the release of Chintan Chandrachud’s book, “Balanced Constitutionalism: Courts and Legislatures in India and the United Kingdom“, Senior Advocate, K.K. Venugopal, stirred up a controversy, by urging that the judgment in Kesavananda must be revisited by a bench of more than 13 judges.

Several Advocates in a Writ Petition [Diary No. 43118 of 2016] before the Supreme Court prayed for a declaration that the concept of basic structure evolved in the judgment in Kesavananda Bharti v. Union of India, (1973) 4 SCC 225 “is nothing but blasphemy” and has no foundation in jurisprudence.

Hon’ble Justice Dr. D.Y. Chandrachud considered the prayer ‘frivolous‘: “the judgment has been rendered by a Bench of thirteen judges and constitutes a binding precedent.”

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