Indira Gandhi, Nani Palkhivala and the Basic Structure doctrine

The response of Justice Iyer was, why do you want to meet me? Gokhale, probably never expected this response. Gokhale said: “The verdict in the Prime Minister’s election case has gone against her in the High Court. You are the vacation judge. So to file an appeal and seek stay of the order, I wish to meet you”.

Justice Iyer told Gokhale to ask the government advocate to file an appeal. The same would be promptly heard. This firm negative response must have upset the Law Minister. Justice Iyer in his book Off the Bench has recorded: “Judges must avoid residential meetings, as far as possible, when cases of moment affecting the visitor are involved”.

Such attempts impact negatively the independence of judiciary. The day before the hearing, Justice Iyer received a few threatening telephone calls. One of the voices claimed that he was Palkhivala. Another telephone bully urged: if you did not grant unconditional stay of the High Court order, your wife would be a widow the next day! The bully did not know that Justice Iyer had already lost his life partner during a surgery in the US.

The case was argued the whole day long. The judge announced that the order would be pronounced the next day at 3pm in chambers in the presence of the advocates. The next day, Justice Iyer followed the judicial precedents. He rejected the application of Mrs. Gandhi that the Allahabad High Court’s order, finding her guilty of corrupt election practices should be totally suspended. Justice Iyer granted the conditional stay of the order under appeal. She could have continued in power for six months and the appeal would have been heard and decided during this period.

Indira Gandhi decided to impose Emergency on June 25, 1975. Many were arrested and jailed. Some of the Fundamental Rights including the Right to Life (Article 21) were also suspended.

It was during the pendency of the appeal in the Supreme Court, the government passed the 39th constitutional amendment which stated that any dispute relating to the election of the President, Prime Minister and the Speaker of the House shall not be adjudicated by any court of law but by an appropriate forum provided by the Parliament. Thus, no judicial review.

The amendment also rendered any pending proceedings before the courts regarding these elections as null and void. This amendment was challenged before the Supreme Court in Indira Nehru Gandhi vs Raj Narain (1975). The arguments concluded in her appeal on October 9, 1975. The judgment was reserved.

Chief Justice A.N.Ray passed a written order on October 20, 1975. He constituted a Bench of 13 judges to hear arguments on two questions: (i) Whether or not the Basic Structure doctrine restricted Parliament’s power to amend the Constitution? (ii) Whether or not the Bank Nationalisation case had been correctly decided? This order surprised everyone. There was no review petition by any of the parties to the Keshvananda Bharti case. Question No.(i) had already been decided by a Bench of 13 judges.

If this decision of Basic Structure had to be overruled, it was necessary to constitute a Bench of 15 judges. Moreover, it was beyond comprehension, as to why the correctness of Bank Nationalisation case had to be re-examined. The government had already paid the higher compensation and passed the Bank Nationalisation Act.

The Supreme Court on November 7, 1975 struck down the 39th constitutional amendment by invoking the Basic Structure doctrine propounded in Keshvananda Bharti case. It was held that judicial review was part of the Basic Structure. The withdrawal of this power was in violation of the Basic Structure. In spite of this, Indira Gandhi succeeded in her appeal. She succeeded because the apex court exercised the right of judicial review. If 39th amendment had been upheld, the jurisdiction of the Supreme Court could not have been exercised.

It was on November 10, 1975, the Bench of 13 judges assembled to hear what effectively was a review of Keshvananda Bharti. This is how, Keshvananda Bharti – II came up before the apex court. Out of 13 judges who had heard Keshvananda Bharti-1, only 5 judges had continued in office: Chief Justice A.N.Ray and Justices H.R.Khanna, K.K. Mathew, M.H. Beg and Y.V. Chandrachud. The 8 new judges were: P.N. Bhagwati, V.R. Krishna Iyer, P.K. Goswami, R.S. Sarkaria, A.C. Gupta, N.L. Untwalia, M. Fazl. Ali and P.M. Singhal.

Palkhivala was engaged to appear in the review petition. He wrote a personal letter to Mrs. Indira Gandhi, just a day before the hearing. Palkhivala requested her to withdraw the government’s attempt to get the Keshvananda judgment reviewed. He pointed out that India was the only country with political stability whereas Pakistan, Burma and Ceylon were politically instable. This was attributed to the Basic Structure of the Constitution. Indira Gandhi simply ignored this letter.

The hearing commenced on November 10, 1975. Palkhivala began with pointing out that there was no review petition. Therefore, he inquired whether the matter was being heard on oral request by the Union of India? CJ Ray responded by saying, No. The request had come from the petitioners. It was pointed out that it was impossible that the petitioners had requested for review. Why would they ask for a review. Then, the Chief Justice said that Tamil Nadu government had asked for a review.

Interestingly, the Advocate General who was present in court, clearly denied. The Chief Justice was embarrassed. Justice Beg urged that they wanted to know what these basic features are. Palkhivala did not mince words. It is inconceivable that the Supreme Court cannot understand its own judgment. This went on for two days November 10 & 11. On the second day, Attorney General Niren De had started arguing. Justice Krishna Iyer specifically asked De, do you want clarification or to annihilate the Basic Structure Theory itself.

It was apparent and clear to the other judges that the Bench had been constituted at the behest of Chief Justice Ray himself. He wanted the decision in Keshvananda Bharti to be overruled. On the third day of the hearing, Chief Justice Ray came to the Court room and simply announced: ‘Bench Dissolved’. He walked out.

It is sad that there is no record of Keshvananda Bharti-II. Before, any order could be dictated, the Bench was dissolved. Therefore, no reported decision of the two days arguments. In fact, this was the last determined assault on the Basic Structure doctrine.

However, Soli Sorabjee in his book Nani Palkhivala – The Court Room Genius has beautifully captured the role played by Palkhivala in demolishing the surgical assault on the Basic Structure. These two days represent the finest hour of Palkhivala’s legal career. On the occasion of golden jubilee of Keshvananda Bharti, the nation salutes its architect – Nani Palkhivala.

(The author is former head of the National Judicial Academy)