Past Continuous: Two Judgements That Held the Constitution Above Parliament

A fortnightly column reflecting on chapters of India’s political past that are relevant today.

In recent years, the relationship between the executive and judiciary has not been at its cordial best and allegations of judicial overreach have flowed unremittingly. On several occasions, the highest members of the judiciary have also expressed disappointment over the executive’s failure to address issues hampering legal benches. Trust, confidence and deference, initially the foundation of this relationship between the vital pillars of the state, is regrettably conspicuous in its absence.

Several members of this government – and the previous one(s) – nurse a grouse that the judiciary habitually appropriates powers of executive. This allegation finds support among even non-partisan legal luminaries as several judgements bear witness to the judiciary’s tendency to overstep judicial activism.

By straying beyond the proverbial Lakshman rekha, the judiciary provided justification to the executive’s purpose of ‘subduing’ it. Blatant attempts to undermine the judiciary, in turn a threat to Indian democracy’s basic character, unfortunately has majority approval. Ironically, this government is pursuing the aim first articulated by an ideological adversary – the self-proclaimed leftist in Indira Gandhi’s government, Mohan Kumaramangalam.

In 1973, stung by judiciary stymieing his prime minister’s intention of amending the constitution at will, Kumaramangalam, the minister for steel, went beyond his ministerial brief and propounded the concept of “committed judiciary”. The sordid episode of supersession of eminent judges was a result of such thinking. Since then, several attempts were made to ensure compliance of the judiciary and get judges to accept harmonising between legislature and executive as their primary task. Few politicians, especially when part of establishment, openly advocate necessity for a “committed judiciary”, but there is no dearth of those who covet it.

However, post-independence, it was not always like this. Jawaharlal Nehru had reservations on the judiciary’s interpretation of the constitution – this even led to the first amendment on the freedom of expression – but he displayed ample respect.

The script began going awry exactly half a century ago, in 1967, when the Supreme Court delivered its verdict in the Golaknath case. The bitter confrontation between the judiciary and executive in its wake continued for more than six years till the judgement in the Kesavananda Bharati case in 1973. This judgement thereafter has provided protection to the basic character of the constitution.

Between February 1967 and April 1973, the government made a concerted bid to ensure the parliament had uncontrolled powers to amend or abridge any part of the constitution, including the fundamental rights. Recalling this chapter in governance and relationship between the judiciary and executive becomes imperative because of the return of one-party dominance and similarities in the personalities of Gandhi and Narendra Modi. However, this narrative has to be framed within the political timeline of the period.

The Golaknath verdict was delivered within days of the verdict of the fourth Lok Sabha elections that renewed Gandhi’s tenure as the prime minister. Yet, despite a majority in the parliament, the Congress lost power in several states. Besides forming coalition governments in several states, and the weakening political and moral authority of Congress, Gandhi was caught in a bitter power struggle within her party. But she was intent on forging her own destiny. To secure her objective, Gandhi sought unrivalled power and an amended constitution. She also sought a favourable judiciary.

The Golaknath case stemmed from the family (of the same name) challenging acquisition of their farmlands in Punjab under land ceiling laws. The case predated her tenure but became a constitutional landmark. It triggered political upheaval because the family challenged acquisition of their land on grounds it violated their fundamental right to hold and acquire property and practice any profession.

The Golaknaths also contended attachment of lands denied them equality and equal protection as constitutionally guaranteed. The case raised the vital question: can fundamental rights be amended or not? The 11-judge bench in this case examined its own five-judge verdict in a previous case (Sankari Prasad vs Union of India) when the court ruled parliament had the right to amend any part of the constitution.

Eventually, the apex court reversed its previous verdict and now declared that parliament did not have the right to amend fundamental rights, in part or in whole. The court also ruled that despite it being the parliament’s duty to enforce the directive principles of state policy, this could not be done by altering fundamental rights. Gandhi viewed the ruling as an obstacle in her attempt to secure absolute political control.

In July 1969, two years and five months after the Golaknath verdict, as part of her political offensive, Gandhi nationalised 14 banks. The decision was promptly challenged and in less than seven months the Supreme Court struck down the decision. A few months later, Gandhi abolished privy purses but this too was termed illegal by Supreme Court in December 1970.

Concluding that by now the people were on her side, Gandhi dissolved the parliament and hurried into India’s first snap poll in March 1971. Though she decimated the grand alliance and secured a huge victory, the three successive unfavourable judicial verdicts still stung her.

Bent on humbling the judiciary, Gandhi moved a series of constitutional amendments providing government with untrammelled right to limit, alter or even abolish fundamental rights. An American journalist reported that she was “moving to become the most powerful woman in the world” and “under cover of India war preparations” she was establishing a “socialist dictatorship on the pattern of Soviet Union.”

The Statesman‘s editorial was more ominous, “The implications are breath-taking. Parliament now has the power to deny the seven freedoms, abolish constitutional remedies available to citizens and to change the federal character of the Union.”

Of the three constitutional amendment bills – the 24th, 25th and 26th – the first enabled to override the Golaknath judgement, while the other two circumvented judicial verdicts on bank nationalisation and privy purses. As part of the Twenty-fourth Amendment, Articles 13 and 368 of the constitution were amended. While the former waived off applicability of the article to amendments made in the latter, Article 368, in its amended form, provided power to the parliament to amend any part of the constitution.

With the amendments, the government circumvented the hurdles posed by the three ‘troublesome’ verdicts. But Gandhi’s troubles with the judiciary did not end as chief of a mutt in Kerala challenged the state government’s order restricting his power to manage properties of the institution. The wheels of justice were turning slowly but as subsequent events demonstrated, the grind was exceedingly fine.

Kesavananda Bharati vs State of Kerala, as the case is called in the annals of Indian judicial history, got its name from the pontiff of the mutt (though he never met his counsel Nana Palkhivala) and also went to the apex court. Because this case too related to the scope of the power of amendment of the constitution under Article 368, it was heard by a 13-judge bench, undoubtedly to give it greater authority than the 11-judge bench in the Golaknath case. In April 1973, when the apex court pronounced its judgement, the bench was split vertically with seven judges in majority and six against, just as the previous case was decided by a six-five majority.

The Kesavananda Bharati judgement overruled the Golaknath verdict and gave back to the parliament the right to amend the constitution provided its “basic structure” was not altered. For the government this was half a victory – it won the basic case, but still did not have unrestrained powers to ‘tamper’ with the constitution. The verdict had takeaways for both sides but the most important victory was undoubtedly for the object of the legal clash – the Indian constitution and the right to alter its fundamental spirit.

Unambiguously, the court ruled that the “basic structure” was sacrosanct. This judgement has since given strength to the constitution and provides basis for the faith that return of one-party dominance will not undermine the Indian constitutional system.

Yet, half a century after the Golaknath case triggered a determined bid by the government of the day to change laws as it willed, the entire episode stands as a reminder of the future dangers. The importance of the Kesavananda Bharati judgement notwithstanding, it left ambiguity regarding the “basic structure”, which was not defined.

The abstraction of the concept notwithstanding, events over the six-year period ensured Supreme Court’s emergence as one of the most powerful judicial institutions in the world. These proceedings settled that the parliament is the creature of the constitution and not the other way around. But this conclusion cannot be taken for granted in contemporary India. When institutions are subverted, does it take much time for consensus on ideas to be cast away?

Nilanjan Mukhopadhyay is a Delhi-based writer and journalist, and the author of Narendra Modi: The Man, The Times and Sikhs: The Untold Agony of 1984. He tweets @NilanjanUdwin