A verdict of “great courage” is how Chief Justice of India (CJI) N.V. Ramana has described the 1975 Allahabad high court which unseated Prime Minister Indira Gandhi. He is right, of course, but the fact that he needed to say this strikes me as significant.
After all, a judge is required to uphold the constitution and the laws of the land without fear, favour, affection, or ill will. There is no scope for courage. The arms of judges are long enough.
Perhaps the CJI’s observations reflect the general malaise that has set in. Day in and day out we are witnessing human rights and civil liberties being abridged in flagrant disregard of the law laid down by the Supreme Court.
The context of the CJI’s observation is important. Flashback to June 12, 1975: the Allahabad high court declares Prime Minister Indira Gandhi’s Lok Sabha election from Rae Bareilly as null and void. Raj Narain’s charge of her misusing government machinery was proved. She was barred from contesting elections for six years, and was allowed 20 days to make alternative arrangement.
The unseated PM immediately rushed to the Supreme Court. On June 24, 1975, Justice V.R. Krishna Iyer, sitting singly in a vacation bench, granted Indira Gandhi a conditional stay, subject to her not taking part in parliamentary proceedings, not voting, and not drawing any emolument. The matter was listed for arguments on merits before the regular bench on August 11, 1975.
Meanwhile, on June 25/26, 1975, National Emergency was clamped. During the emergency, one day before the Supreme Court’s hearing, on August 10, 1975, parliament passed the Constitution (39th Amendment) Act, 1975. A new Article, 329A, was inserted which retrospectively validated Mrs Gandhi’s election that had been set aside by the Allahabad HC. This even though her appeal was still pending before the Supreme Court. Parliament, thus, acted like an appellate forum over the apex court. And, it (legislature) performed a judicial function; rule of law and democracy were thrown to the wind; and the doctrine of separation of powers buried.
The Supreme Court rose to its highest stature on November 7, 1975 when a constitution bench unanimously struck down the Constitution (39th Amendment) Act, 1975 as ultra-vires of the basic structure of the constitution. This was the first time the court had invoked the basic structure doctrine after April 1973 when the Kesavananda Bharati judgment propounded the same with a split verdict (7:6), by a 13 judge bench.
Earlier, on February 27, 1967, the Golaknath judgment, an 11-judge bench by a split verdict (6:5) had saved fundamental rights from the wrath of parliament’s constitutional amendment. Wrath, more correctly, of the executive and legislature both, since the council of ministers is like a “hyphen/buckle which joins/fastens the legislative part of the state to the executive part”, as held by another landmark constitution bench judgment in Ram Jawaya vs State of Punjab.
Historically, therefore, even one judge has proved capable of tilting the balance to save India’s democracy. This is a matter of pride for our democracy on the touchstone of checks and balances. The propensity of the executive/legislature to deform the constitution has been an unending process. Whoever commands a majority in the legislature forms the government. The combined might of the legislature and the executive have often played havoc with the constitution. This grim reality casts enormous responsibility on the Supreme Court to keep other wings of the state within constitutional bounds.
Barely one year after the constitution was enacted on January 26, 1950, the Constitution (1st Amendment) Act, 1951 passed on May 18, 1951, inserted Articles 31A and 31B. Article 31A diluted Article 13, as it saved laws in contravention of fundamental rights – Articles 14 and 19. And Article 31B created the 9th Schedule of the Constitution which contained certain Acts that were beyond judicial scrutiny.
Then came the historic judgment of Minerva Mills in 1980 when a constitution bench declared the 42nd amendment of 1976 – which inserted Article 368 (4) and 368 (5) – as invalid. These clauses conferred sweeping powers to parliament to amend the constitution. On the cornerstone of the basic structure doctrine, the court ruled that parliament’s power to amend the constitution is not a power to destroy. The Supreme Court held that parliament cannot emasculate fundamental rights. Strong words indeed.
Sadly, even 41 years after this dictum to parliament, the emasculation of fundamental rights in India continues, with greater ferocity now, and with no accountability. Though the Supreme Court has time and again struck down constitutional amendments to protect fundamental rights, the democratic character of the constitution, the rule of law, separation of powers, secularism, independence of judiciary, federalism, free and fair elections, the manner in which court’s command is being defied is startling.
The invasion of privacy continues in the teeth of judicial command, by a unanimous nine-judge bench verdict of the court in Puttaswamy vs Union of India delivered on August 24, 2017. That the right to privacy has now been elevated to a fundamental right has simply been ignored by the executive. And the arrest jurisprudence has dipped to a new low! Yet, the executive continues to disregard these verdicts brazenly and nonchalantly.
CJI Ramana’s praise of Justice Jagmohan Lal Sinha is timely. India desperately needs judicial verdicts of “great courage”.
Bishwajit Bhattacharyya, senior advocate, Supreme Court of India and former additional solicitor general of India.