Opinion Whose Constitution is it anyway?
In this series,it has already been reported (IE,July 24) that her constant struggle to overcome judicial hurdles to bank nationalisation and abolition...
In this series,it has already been reported (IE,July 24) that her constant struggle to overcome judicial hurdles to bank nationalisation and abolition of princes privy purses had exacerbated Indira Gandhis conflict with the higher judiciary. However,the confrontation had started much earlier and over a different issue. Moreover,the fight was on behalf of Parliament as an institution. Personalisation of power came later.
To begin from the beginning,for the first 17 years since the commencement of the Constitution,Parliaments right to amend the basic law was unfettered as long as it adhered to Article 368 requiring that an amendment be passed by a two-thirds majority of those present and voting as well as a clear majority of the total membership of the House. In February 1967,the Supreme Court,under the leadership of Chief Justice K. Subba Rao,by a majority of four to three,debarred Parliament from amending the fundamental rights. And the CJ added,for good measure,that Parliament could enlarge these rights but not restrict them. This was the famous Golak Nath case.
It has been well said that Subba Rao had gone too far. He wanted to save the Constitution. But he succeeded in provoking what he had intended to prevent: increased parliamentary authority to amend the Constitution and a Parliament strengthened at the expense of the Supreme Court. For,no sooner had the Golak Nath judgment been delivered than Parliament was in uproar. Most opposition parties were at one with the government on this score. Within the Congress party,factional fightings intense. Yet,the supporters of Indira Gandhi and those of Morarji Desai (who was then out of the government) were united in demanding that Parliaments power to amend the Constitution be restored immediately.
An opposition member,Nath Pai (Socialist) moved a bill to this effect. It could not be passed but it later became the basis of the Twenty-fourth Amendment that restored the pre-Golak Nath position. Meanwhile,Subba Rao had compounded the situation by resigning from the Bench to become the Oppositions candidate in the presidential election,thus fuelling anger against him and his verdict. The now defunct Swatantra party,representing big business and princes,gave him full support. This lent an edge to the gibe that he was a defender of vested interests.
Anyway,the Constitution (Twenty-fourth) and (Twenty-fifth) Amendment Bills could not be passed in 1970. The opposition to them was strong. The Congress party had formally split in 1969 and the Congress (O) was vehemently opposed to these measures. This was so because the 24th Amendment went beyond mere restoration of Parliaments right to amend all parts of the Constitution. It provided that the amendment could be by way of addition,variation and repeal. The 25th Amendment went even further. Dealing largely with the fundamental right to property (Article 31),it introduced a sub-Article (31C) that ruled out judicial review of the amount (the word compensation was deleted) paid for acquisition of property. Laws enacted to enforce the Directive Principles of Policy,the new provision added,could not be challenged in any court of law.
After Indira Gandhis landslide victory in the 1971 election,there was no difficulty in passing both the Bills with overwhelming majorities in both Houses. The President promptly gave assent to them. But both the amending laws were immediately called into question in the Supreme Court in the historic Kesavananda Bharati case.
So inflamed were passions in the country both for and against the two constitutional amendments that Chief Justice S. M. Sikri constituted a special bench,consisting of all the 13 judges of the apex court. Its much-awaited judgment was delivered on April 24,1973,just two days before Sikri was due to retire. The 13 judges could not have been more divided; nor could the majority (seven-to-six) behind the verdict be narrower. Six judges voted for the governments stand. Justice A. N. Ray was the most senior of them though he was number five on the bench. Six other judges,including the CJ and the three judges next to him in the seniority list,voted against the government all through. Justice H. R. Khanna restored the balance by agreeing with the first set of six on some points and with the other six on some issues. Overall,the courts verdict overruled the Golak Nath judgment,and although it upheld the 24th and 25th Amendments,it declared invalid the new Article 31C enacted by the Indira Gandhi government. The most important point of the judgment was that while Parliament could amend any section of the Constitution it could not change its basic structure,which remains the law of the land.
Proponents of radical changes in the Constitution saw the judgment as Indira Gandhis defeat. She retaliated within 24 hours. The President,on the advice of his council of ministers,appointed A. N. Ray as the next Chief Justice,superseding three judges - J. M. Shelat,K. S. Hegde,and A. N. Grover senior to him. All of them resigned at once. Nothing like this had happened ever before. Since Nehrus days,the most senior judge of the Supreme Court had become Chief Justice. Amidst the already inflamed polarisation,supersession of judges hit the country like a thunderbolt. Such eminent legal luminaries as M.C. Setalvad,M. C. Chagla and V. M. Tarkunde described the blow as a manifest attempt to undermine the Courts independence. Opposition parties screamed that Indira Gandhi wanted to suborn the judiciary and destroy all democratic institutions. Some also alleged that she was manipulating the apex courts composition with an eye to the election case against her,slowly wending its way in the Allahabad high court.
On the governments behalf,several ministers,led by Mohan Kumaramangalam,a former communist,invoked the names of Abraham Lincoln and Franklin Roosevelt in support of the contention that it was vital to take into account a judges philosophy and outlook.
Furious debate was still raging when the hammer-blow of the Emergency intervened,and the whole ballgame changed. Yet,there was a sting in the tail. On January 18,Indira Gandhi called fresh elections. Eleven days later,she appointed M. H. Beg Chief Justice of the Supreme Court,superseding Justice H. R. Khanna,who resigned instantly.
The writer is a Delhi-based political commentator
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