On the morning of 12th November 1975, with these words, Chief Justice A.N. Ray dissolved a bench of thirteen Judges that had been reviewing the seminal judgment of Kesavananda Bharati[2] – only five days after the judgment of the Supreme Court in Indira Gandhi[3] on the 7th of November 1975 – which applied the basic structure doctrine for the first time to test the validity of a constitutional amendment.
It was not long ago, on 24th of April 1973 that a bench of thirteen Judges in Kesavananda Bharati laid down by a razor thin majority the basic structure doctrine – a judicially read limitation on the constituent power of Parliament on not being empowered by the Constitution to undo its basic structure. At the time, the verdict was unpalatable to many – including the Government of the day – which reacted very sharply by proceeding to infamously supersede three senior Judges, i.e. Justice Shelat, Justice Hegde and Justice Grover, to appoint the fourth senior Judge, Justice A.N. Ray to the Chief Justiceship. Notably, the three superseded Judges had voted to limit the power of Parliament in amending the Constitution. Minister Mohan Kumaramangalam asserted in Parliament that the Government wanted “committed Judges” who were forward looking and harmony with the Government's social philosophy. But only a couple of years later, the tectonic political shift radically changed perspectives on the basic structure doctrine – which began with the pen of a single Judge of the Allahabad High Court - Justice Jagmohan Lal Sinha.
On the 12th of June 1975, Justice Sinha found the all-powerful Prime Minister Indira Gandhi guilty of corrupt electoral practices and set aside her election to Parliament at the instance of her electoral rival Raj Narain – and consequently brought a cloud over her Premiership. The six-week stay granted by the Allahabad High Court allowed the Prime Minister to appeal the Judgement to the Supreme Court – which was argued on the 23rd of June 1975 before the Vacation Judge Justice Krishna Iyer by Nani Palkhivala for the Prime Minister and Shanti Bhushan for Raj Narain. On the following day, despite knowing that the case was one of moment, Justice Krishan Iyer only granted the Prime Minister a conditional stay – while not giving effect to her disqualification from the House of the People, she would not be allowed to vote in Parliament. On the very next day, the 25th of June 1975, just shy of midnight, Internal Emergency under Article 352 was imposed in the country. At the time, Article 352 only required the subjective satisfaction of the President that “internal disturbances” would threaten the “security of India” – which was easy for Prime Minister Indira Gandhi to advise President Fakruddin Ali Ahmed on the pretext of the call Jayprakash Narayan had given on the previous day to the authorities to disobey the orders of the Prime Minister who was immorally holding office. In its fiftieth year, there is hardly anything that remains to be written of our unfortunate tryst with Emergency – the excesses on human rights, the illegal detentions and unending incarcerations and the muzzling of the free press – all of which was detailed by the Shah Commission. But back to the story of the basic structure.
The Prime Minister's political position threatened, Parliament passed the 39th Amendment to the Constitution – an amendment to nullify the Allahabad High Court's verdict, and to protect the election of Prime Minister Indira Gandhi. Astoundingly, with most of the opposition leaders incarcerated, the 39th Amendment was passed with lightning speed of four days – the Lok Sabha passing it on the 7th of August, the Rajya Sabha on the 8th of August, one half of the States ratifying it on the 9th of August, and President Ahmed giving his assent on the 10th of August and was published in the official gazette – only to be presented to the Supreme Court on the 11th of August that the Constitution was amended retrospectively barring judicial enquiry into the election of the Prime Minister! Notably, the letter of Article 368 was followed to a T – and the Constitution stood amended. Of course, it is well known the Raj Narain challenged the constitutional validity of the 39th Amendment on the touchstone of the basic structure doctrine, and a Constitution Bench of the Court held by majority that the rule of law was fundamental part of the basic structure of the Constitution, and that the 39th Amendment could not nullify a judicial verdict by amendment, and thus, a part of the 39th Amendment was struck down. In its first test, the basic structure doctrine had fared very well to ensure that the Constitution was not a “plaything of a majority”[4] – especially when the opposition leaders were in jail.
It was on then 10th of November 1975, Chief Justice Ray constituted a bench of thirteen Judges to review the judgment in Kesavananda Bharati. According to T.R. Andhyarujina, it was on 20th of October 1975 Chief Justice Ray issued an order for the review to consider whether the basic structure doctrine restricted Parliament's power to amend the Constitution.[5] Interestingly, twelve Judges on the bench had either Judges who had voted that Parliament had had unbridled power of amendment under Article 368 or were new Judges. It was only Justice H.R. Khanna who had subscribed to the basic structure doctrine in Kesavananda Bharati. With sheer brilliance of advocacy[6], Nani Palkhivala raised a preliminary objection that there has been absolutely no case made out for the review, as there had been absolutely no case in which the application of the basic structure doctrine had caused any difficulties.[7] In the course of his argument, when Palkhivala sought to know what prompted the Chief Justice from constituting the bench to review the Kesavananda Bharati judgment, the Chief Justice said that the Tamil Nadu government had also sought for a review – which resulted in the Advocate General for Tamil Nadu Govind Swaminathan standing up and saying “I beg your pardon, my Lord. We never even once asked for a review”[8] – leaving Chief Justice Ray red faced. On the following day, when Attorney General Niren De was responding to the need for a review of the judgment, the dialogue between the Judges and the Attorney General is best captured in Prashant Bhushan's book The Case That Shook India:
“Justice Khanna: Has the theory of basic features impeded any legislation about socio-economic measures?
De: Socio-economic measures are not the only thing, important as they are. The very structure of government is the fundamental object of the amending process. You don't need the amending power for non-essential features of the Constitution.
Justice Untwalia: Is there any example where the government wanted to amend the Constitution in public interest and has been prevented by the basic features theory?
De: Take the case of the Thirty-ninth Amendment.
Justice Untwalia: I am talking of amendments in public interest.”[9]
On the following day, as suddenly as the bench had been constituted, the bench was dissolved, perhaps after the Chief Justice realized that most of the Judges were not in favour of the review.
Ostensibly, any attack on the basic structure doctrine is founded on a textual basis – the Court having allegedly read beyond the words of Article 368. What however is quintessential to bear in the mind is that the rule of law – as abstract as it may be – is not always found on a plain reading of the constitutional text. After all, the Emergency was imposed in accordance with the text of Article 352, and the 39th Amendment was passed in strict compliance of Article 368. If the constitutional text alone is the yardstick, there is nothing illegal about the Emergency or the 39th Amendment. It is the abstract of the rule of law which allows judicial innovation in constitutional principles such as the basic structure doctrine to test constitutional amendments. Obviously, the framers of our Constitution did not think it necessary to have any mechanism to assail an amendment to the Constitution – after all an amendment once passed became a part of the Constitution, and there could be no provision to challenge another provision of the Constitution. It was the harmony of the constitutional text and the powers the Constitution gave to its creatures that gave birth to the basic structure doctrine. The vitality of the basic structure doctrine was seen in just over two years from its birth. A known critic of the Kesavananda Bharati judgment – H.M. Seervai – who wrote a scathing piece in the Bombay Law Review in 1973[10] – diametrically changed his view and noted that the judgment in Indira Gandhi was “the finest hour of the Supreme Court”[11]. Today marks fifty years from the aborted attempt to review the judgment in Kesavananda Bharati – aborted during those dark days of the Emergency. An attempt that must never repeat itself; a history which must never repeat.
Author is Advocate on Record, Supreme Court of India. Views are personal.
2. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 ↑
3. Indira Gandhi v. Raj Narain, (1975) Supp SCC 1 ↑
4. An expression used by Justice Hidayatyllah in Sajjan Singh v. State of Rajasthan, (1965) 1 SCR 933. ↑
5. T.R. Andhyarujina, The Kesavananda Bharati Case: The untold story of struggle for supremacy by Supreme Court and Parliament, Universal Law Publishing Co. Pvt. Ltd., 2011 Edition, Pg. 92. ↑
6. Justice H.R. Khanna noted in his autobiography: “My feeling and that of some of my colleagues was that the height of eloquence to which Palkhivala rose on that day had seldom been equaled and never surpassed in the history of the Supreme Court.” See H.R. Khanna, Neither Roses Nor Thorns, Eastern Book Company, 2003 Reprint, Pg. 74-75 ↑
7. T.R. Andhyarujina, The Kesavananda Bharati Case: The untold story of struggle for supremacy by Supreme Court and Parliament, Universal Law Publishing Co. Pvt. Ltd., 2011 Edition, Pg. 92. ↑
8. Prashant Bhushan, The Case That Shook India, Penguin, 2017 Edition, Pg. 275 ↑
9. Prashant Bhushan, The Case That Shook India, Penguin, 2017 Edition, Pg. 283. ↑
10. H.M. Seervai, The Fundamental Rights Case - At the Cross Roads, 1973 (75) Bom. L.R. 47. ↑
11. H.M. Seervai, Constitutional Law of India, 4th Edition, Volume 2, Page 2206. ↑