By Nilanjan Mukhopadhyay on 09/05/2017
A
fortnightly column reflecting on chapters of India’s political
past that are relevant today.
Jawaharlal
Nehru signing the Indian constitution. Credit: Wikimedia Commons
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
Source:
thewire
