The years following the Kesavananda Bharati Judgement saw a lot of upheaval on the national level and there were events that changed the direction and trajectory of the country.
The Kesavananda Bharati case set off a chain of events that made the 1970s the most eventful decade in the history of India (apart from the late 1940s, obviously). With this decision the court had put limitations on the extent and power of the parliament (read the government of the day) to alter the constitution. Although the judgement upheld the amendments made by the government which were in dispute but the restriction brought by the court regarding “non alteration of the basic structure” meant that the future actions of the government could be brought into question in the court and the court would have the final say on legality of those actions. This was seen as an affront to the position of the parliament and did not go down well with the government. In “part 1” (Part 1: KESAVANANDA BHARATI CASE: DEFINING INDIA’S CONSTITUTIONAL LIMITS AND THE BASIC STRUCTURE DOCTRINE) we mentioned that the pushback from the government was swift and vicious, in this part we start with delving into the response of the government against the Kesavananda Bharati judgement.
Immediate aftermath of the Kesavananda Bharati Judgement
Justice Sikri, the then Chief Justice was going to retire the next day after the Kesavananda judgement, usually the government notifies the appointment of the next CJI well in advance to smoothen the transition, but this time the government didn’t notify anything until the very last moment. On the 13 judges bench of the Kesavananda Bharati case, Justice Jaishankar Manilal Shelat was the second senior most judge after Justice Sikri and the convention directed that he should be appointed as the next chief Justice of India. However, in a remarkable turn of events, the government deviated from the convention and appointed Justice A N Ray as the next chief Justice of the country. Justice Ray was in fact 4th as per seniority in the Supreme Court and his appointment saw him supersede 3 judges, Justice Shelat, Justice A N Grover and Justice K S Hegde to the position of Chief Justice. To justify this shift from convention, the government relied on the 1958 law commission report which had suggested that seniority need not be the sole criteria for the appointment of judges and administrative capacity and other merits should also be taken into consideration. This explanation obviously was a mere fig leaf to give credibility to the government’s action and cover the retributive nature thereof.
Justices Sikri, Shelat, Grover and Hegde all resigned in protest of this out of turn appointment and protests broke out in the entire country. The government’s move was seen as a ploy to whip the judiciary into submission. Lawyers across the country observed “Bar Solidarity Day” on 3rd May 1976. C K Daphtary, former attorney general and a tall figure in the legal circles was particularly scathing and said “The boy who wrote the best essay got the first prize”, referring to Justice AN Ray’s judgement in the Keshvananda Bharati case. Nevertheless, Justice Ray was now the Chief Justice of India and Mrs. Gandhi had punished the senior judges for penning a judgement against the government.
Mounting problems elsewhere for Mrs. Gandhi
During this time the popularity of Indira Gandhi in the country was also waning, the promises she had made during the election campaign were far from fulfilled and the public was becoming disillusioned, opposition leaders like Jayprakash Narayan and Morarji Desai had established a greater connect with the people. Indira Gandhi received a jolt when an election petition filed in Allahabad High Court against her was decided which held her election void. Her opponent from the Rai Bareilly Raj Narain had filed an election petition against her which was pending in the court, accusing her of misusing government machinery to her aid in the election campaigning. Justice Jaganmohanlal Sinha of the Allahabad HC found her guilty of the malpractices and held her election to be void, and disqualified Mrs. Gandhi from holding a public office for 6 years. The opposition was waiting for a moment like this and when the opportunity presented itself, they leapt at it, intensifying the protests against the Prime Minister and seeking her resignation. Mrs. Gandhi went in appeal to the Supreme Court against the decision of the Allahabad High Court and for this she strangely sought Mr. Nani Palkhiwala to represent her, who had not long ago fiercely argued against her government in the Kesavananda Bharati case. The same Palkhiwala was to now represent her in the Supreme Court to save her prime ministership.
The Supreme Court granted interim relief to the appellant allowing Mrs. Gandhi to continue being a part of the parliament but prohibited her from voting in the proceedings while the matter was underway. The opposition had now smelt blood and they went for the kill. There were mass agitations and protests around the country demanding the resignation of a crippled prime minister who is not even allowed to vote in the parliament proceedings. “Singhasan khali karo ke janta aati hai” echoed throughout Delhi as the opposition parties asked Mrs. Gandhi to step down from her post.
The reaction of Mrs. Gandhi was something not many could have predicted. Immediate imposition of the emergency was suggested to the president which was promptly approved too. On June 25, 1975 Emergency was declared nationwide and the country was at once plunged into fear and uncertainty. In the broadcast to the nation following declaration of the emergency, Indira Gandhi said that the measure of Emergency was only temporary and the existing conditions in the country necessitated it. She claimed that anti national forces were trying to destabilise the government and law and order in the country and the imposition of emergency was the only way to stamp out these problems. Nani Palkhiwala promptly returned Indira Gandhi’s brief for the Raj Narain case after the imposition of Emergency as he believed that she had gone too far and lost all the sympathy.
The night
Emergency saw the government crack down severely on its political opponents and the media. Opposition members, big and small, were all detained and put in prisons to quell the dissent against the government. According to some claims more than 1 lakh people were arrested and detained during the emergency to quell dissent. Opposition members had to take extreme measures of hiding their identities, changing their appearance to evade arrests. Recently a photograph of Prime Minister Modi has been doing the rounds on social media which shows him in the sikh attire, wearing a turban and sporting a thick beard during Emergency to avoid arrest. Some of his senior party leaders weren’t so fortunate and were arrested soon after the emergency was imposed. Mr. LK Advani and Mr. Atal Bihari were in Bengaluru attending a parliamentary committee meeting when they were arrested and put in prison.
Media establishments around Delhi also faced the heavy hand of the government. On the night of 25th june, power supply was snapped at Bahadur Shah Zafar Marg which housed offices of various media houses and newspapers were prevented from being printed. In other distant parts of the country newspaper offices were raided and newspaper bundles seized to prevent distribution. Many cases were also filed against these media establishments, mostly on flimsy grounds such as expired or irregular leases, outstanding dues to the municipalities to hector them into submission.
The arrests at this time were being made under the Maintenance of Internal Security Act. The president had passed an order on June 27, 1975 under Article 359(1) of the constitution which barred people from approaching courts against violation of Articles 14, 19 and 22 (equality, life and liberty, protection against arrest and detention in certain cases) during the duration of the emergency.
Basic Structure theory in action
Emergency made it easier for the government to promulgate new ordinances and make amendments to the constitution as most of the opposition was in the jails and couldn’t protest against the changes being made to the constitution in their absence. The 39th amendment was passed in these circumstances which stated that the election of the prime minister could not be challenged on any ground whatsoever. This amendment was passed on 10th August 1975, before the next date of the SC hearing of the Raj Narain case. Now along with the original question of use of government machinery, the question of validity of 39th amendment also became attached to the Raj Narain case. The question arose whether the 39th amendment violated the “basic structure” of the constitution or not. Uptil now the “basic structure theory” had existed as a vague and undefined academic concept, now in the Raj Narain case we saw the flesh of the doctrine for the first time.
Raj Narain was being represented by the famous lawyer who later went on to become the law minister, Mr Shanti Bhushan and the matter was before the 5 judge bench of Chief Justice A N Sikri, Justice K K Mathew, Justice M H Beg, Justice H R Khanna, Justice Y V Chandrachud. Mr Bhushan argued that the amendment went directly against the spirit of the constitution and the doctrine of Rule of Law. By putting the elections of the Prime Minister beyond the scope of challenge, he argued that the amendment went contrary to the India envisioned by the founding document where free and fair elections were guaranteed.
The SC by a 4:1 majority held the election of Indira Gandhi as valid and overturned the Allahabad High Court decision but the bench struck down the 39th amendment stating that it violated the Basic Structure and went against the spirit of the constitution. What’s supremely interesting is that out of the 5 judges in Raj Narain case, 3 judges had been part of the minority in the Kesavananda Bharati case and were widely believed to be sympathetic to the government, yet in the present scenario, they upheld the “basic structure doctrine” and struck down the 39th amendment as being unconstitutional. Kesavananda Bharati judgement may have given birth to the “basic structure doctrine” but its survival was made possible by the forward looking judgement in the Raj Narain case where the court rightly interpreted the “basic structure” under the immense pressure of the government while the emergency was in place.
Raj Narain case was basic structure theory in action, and the government did not like it one bit. The judgement in Raj Narain case was pronounced on November 7 and very shortly thereafter, suddenly a bench was constituted by the Chief Justice to review and reexamine the Kesavananda Bharati judgement on mere oral request of the attorney general Niren De made during the Raj Narain case. A 13 judges bench was convened to review the Kesavananda Bharati case and once again Nani Palkhiwala was there to defend it. He questioned the need for the review and said that all his arguments during the Kesavananda Bharati Case which were being labelled as far-fetched and imaginary have become real in the emergency and were happening right in front of them. In such a situation, how can Kesavananda Bharati be reviewed, he wondered. The government retorted that the meaning of “basic structure” isn’t very clear and it is causing difficulties in lawmaking. The question as to why the review was being held in the first place kept appearing repeatedly. To this Justice Ray said that there were states of Tamilnadu and Gujarat who also sought the review. Interestingly, in reply to this the AGs of Tamilnadu and Gujarat candidly said that they never sought a review and they are clueless as to why they were mentioned. Slowly the pillars of sand that had so far propped up the review proceedings started to fall apart and soon after this, on 12th november the bench was dissolved by the CJI.
Indiscriminate arrests and the ADM Jabalpur case
Meanwhile the opposition members were still being regularly rounded up by the police. One person named Shivkant Shukla was also arrested and detained under the MISA in UP. His wife filed a habeas corpus petition in the Allahabad High Court and the High court decided in his favour. Aggrieved by this, the state appealed against the order in the Supreme Court. There were several other similar matters originating from other High Courts, the supreme court consolidated them all under ADM jabalpur vs Shivkant Shukla for disposal. The High Courts across the country had held that the prisoners had the right to challenge their arrest.
The matter was listed before a 5 judges bench in the Supreme Court- Chief Justice A N Ray, Justice H R Khanna, Justice Y V Chandrachud, Justice Hameedullah Beg and Justice P N Bhagwati. The state argued that suspension of fundamental rights during emergency was consistent with the provisions of the constitution and was necessary to control the unruly mobs that were threatening peace and order across the country. The state contested that in no way can the suspension of fundamental rights of equality, life and liberty be termed as absence of rule of law when the constitution itself empowered the president to pass orders under Article 358 and 359 to this effect. It is said that Justice H R Khanna is said to have put the question that suppose if a policeman in these circumstances kills a civilian out of his personal enmity, would that be legally sound too? The reply was in affirmative. The state went to great pains to highlight that emergency provisions were only temporary and were in place to control an unusual situation that had arisen in the country and as soon as things got under control, emergency would be lifted and normalcy would resume.
The court in an unexpected turn of events, by a 4:1 majority ruled in the favour of the government and held the suspension of articles 14, 19, 22 as constitutional. The sole dissenter in the case was Justice H R Khanna, who was next in line to become the Chief Justice, he in his judgement held against the governmental excesses and held that some rights cannot be touched even during the emergency and decided in the favour of the sanctity of the human life and liberty. Justice Khanna was suitably rewarded for his judgement when Justice Beg superseded him to the post of Chief Justice of the country. Justice Khanna, like justices Shelat, Grover and Hegde before him, resigned in protest.
The government soon thereafter brought the 42nd Amendment of the constitution in 1976, this amendment is often called the mini constitution as it proposed 59 changes to the constitution in one go. This amendment greatly increased the state’s powers. It also inserted the words ‘secular and socialist’ in the preamble, added the fundamental duties along with other changes.
Undoing the Kesavananda Bharati judgement: 42nd Amendment
42nd Amendment was brought with the chief aim of undoing the restrictions that had been placed on the parliament by Kesavananda Bharati judgement and therefore Article 398 was altered to make it so that no amendment made by the parliament to the constitution could be challenged in the courts on any grounds whatsoever. We remember that 25th amendment (that was in question in the Kesavananda Bharati case) had inserted Article 31C which had said that the fundamental rights of freedom, equality and property were subservient to the Directive Principles of State Policy which gave the government to work for the “common good”. Now, the 42nd Amendment brought back a similar provision, only this time the scope was made even wider than before. Now these fundamental rights were made subordinate to all the Directive Principles of State Policy. This expansion of scope gave them precedence over the most important Fundamental Rights and completely shifted the balance of the constitution from being citizen, individual centric to state centric.
The Lok Sabha had been getting 6 month extensions regularly and it seemed like that now that the government had taken complete control over the institutions and made all the alterations to the constitution needed to rule as per their wishes, the Emergency was to continue for a considerable period. But surprisingly, Indira Gandhi announced the end of Emergency and called for fresh elections in 1977 out of absolutely nowhere. The opposition leaders were released from prisons and all they convened under the banner of Jan Sangh to fight the freshly announced elections.
The elections were conducted, and for the first time in the history of the country, a non-congress government was formed at centre under the prime ministership of Morarji Desai. Thus ended the darkest period of modern Indian history when emergency was imposed on seemingly flimsy grounds to hold on to power and civil liberties were trampled by the government. Although a case can be made for actions of Indira Gandhi as well, the Navnirman Andolan and protests by JP had paralysed the nation and there were murmurs that foreign powers were trying to subvert Indian democratic system and had infiltrated the government structures, also noteworthy is that right at the moment when conditions were opportune to assume total power and become the supreme leader, she ended the Emergency and called for fresh elections. Hindsight is often said to be 20/20 but when matters are as grand as the Emergency, one can only speculate as to the true motivations of the people who were at the forefront. The debate regarding the Emergency’s imposition has been raging since the 1980s and it will continue to be discussed whether the ends can justify the means, however improper they may be.
SOURCE – SUPREME COURT OF INDIA ( SMT. INDIRA NEHRU GANDHI vs. SHRI RAJ NARAIN)
Also Read– Part 1: KESAVANANDA BHARATI CASE: DEFINING INDIA’S CONSTITUTIONAL LIMITS AND THE BASIC STRUCTURE DOCTRINE
ARTICLE WRITTEN BY – Vishav Kishore
EDITOR – Vishakha Khatri
