(First published in The Pioneer dated February 28, 2012)
Thirty-nine years ago, the Supreme Court delivered a landmark judgement that stands as a definitive guide to this day on the limitations of Parliament to tamper with the Constitution. But why is it relevant now to recall the issue? It is because the case offers an elaborate lesson on how shabbily the Congress has treated constitutional institutions and the shocking extent to which it can go in its pursuit to manipulate them. Given that, the recent move by the Congress to give the Model Code of Conduct statutory status and the Lokpal institution constitutional status, ostensibly to “strengthen” them, provides cause for apprehension. After all, a party that has in the past fiddled with even the basic structure of the Constitution cannot be trusted with the task of strengthening institutions that have been giving it sleepless nights even before they are constituted, as in the case of Lokpal or taking strong positions inconvenient to the Congress , as in the case of the Election Commission of India insisting on enforcing the Model Code of Conduct.
On April 24, 1973, a 13-member bench of the Supreme Court gave its ruling on what is popularly referred to as the Kesavananda Bharati case. It said that Parliament had no power to bring amendments that would alter the basic structure of the Constitution. The verdict had come in the backdrop of an ongoing conflict between the judiciary and the Parliament, then controlled by the Mrs Indira Gandhi-led Congress. That conflict had found a reflection in an earlier case too: Golak Nath versus State of Punjab where the apex court had in 1967 categorically ruled that Parliament had no right to amend the fundamental rights as enshrined in the Constitution.
Rather than accept the verdict in the Kesavananda Bharati case with grace because it had protected the fundamentals of the Constitution from mischievous tampering in the future, the ruling Congress hit back at the Supreme Court. Judges who had given judgements in favour of Parliament’s unfettered right to amend the Constitution were promoted, while judges who had ruled that the right to amend was limited and did not extend to altering the Constitution’s basic structure, were superseded. Not just that, a section of the judiciary that was aligned to the Congress even made a vain bid to review the verdict at a later stage. If some of the judges had decided to play ball with the Congress it was because in those days the Government had the power to appoint judges to the Supreme Court. The Congress had taken full advantage of that leverage and routinely sought to manipulate the judiciary. Today, the same party talks of having the “greatest regard and respect” for constitutional and statutory institutions!
In fact, until 1970 the appointment of judges was made by the Union Government in consultation with the Chief Justice of India. But the Congress had found even that arrangement inconvenient after it faced embarrassment in the Golak Nath case. Mrs Indira Gandhi did away with the policy of even notional consultation with the Chief Justice, and the Government began appointing judges on its own and intimated its choice to the Chief Justice after the names had been finalised. Senior advocate TR Andhyarujina in his illuminating book, The Kesavananda Bharati Case: The untold story of struggle for supremacy by Supreme Court and Parliament, writes of the effort that the Congress made in the composition of the Bench that was to adjudicate on the Kesavananda Bharati case. He says, “It was evident that Government was careful to appoint judges who were not likely to be obstructive to Government’s policies…when the constitutional amendments would come up for challenge in the court.” The author should know; he had assisted the State of Kerala in its battle against His Holiness Kesavananda Bharati Sripadagalvaru.
The Congress’s desperation to pack the Supreme Court with ‘committed’ judges who would rule in its favour is also highlighted in a statement made by Justice P Jaganmohan Reddy, who was part of the 13-member Bench. In his autobiography, he writes of a clique in Mrs Indira Gandhi’s Government who set out to “advise the Prime Minister to appoint judges who were committed to a policy as highlighted in Parliament.” The Congress had then virtually sought to convert the judiciary into an extended arm of its Government.
It is a miracle that despite all these sinister manoeuvrings, the Congress failed to get — though by a whisker — a verdict in favour of an unlimited right for Parliament to amend the Constitution. The Bench, by a majority of seven to six, ruled that “Article 368 (of the Constitution) does not enable Parliament to alter the basic structure or framework of the Constitution.” The ‘view by the majority’, as this came to be called in subsequent years, has been a topic of debate, but that is largely limited to legal hair-splitting. The simple fact is that Mrs Indira Gandhi and the Congress had to step back.
The immediate response of the Congress Government was swift and revengeful. On the retirement of Chief Justice SM Sikri who had headed the 13-member bench, it superseded the three senior-most judges — Justices JM Shelat, KS Hegde and AN Grover, who had been part of the majority judgement, and appointed AN Ray as the Chief Justice of India. Needless to add, Justice Ray had ruled in favour of Parliament having the full right to bring any kind of amendment to the Constitution. Another judge, Justice HR Khanna, who too had ruled against Parliament’s unfettered powers to amend, was also superseded less than four years later.
Of course, the Congress was still too full of its own bloated importance and considered the judicial pronouncement as something that should be ‘corrected’ at the earliest. There was no question of learning any meaningful lesson. Roughly two years after the verdict, Mrs Indira Gandhi imposed Emergency and suspended Fundamental Rights guaranteed by the Constitution. Again, the Congress found pliant judges who did its bidding to push through the draconian measures. As Mr Andhyarujina says in his book, “The supersession served as a precedent for appointments and transfers of judges during the Emergency in 1975.” Such has been the Congress’s concern for maintaining the dignity of constitutional bodies.
It was also towards the end of 1975 that hearing on the review of the verdict in the Kesavananda Bharati case began. Not satisfied with having muzzled the fundamental nature of the Constitution through the Emergency, the Congress Government now wanted the Kesavananda verdict to be overturned, just in case it became an obstacle in its future manipulations. But that never happened as, according to Mr Andhyarujina, the review Bench was suddenly and dramatically dissolved. This was perhaps because of the huge amount of criticism and opposition that the decision to review the judgement had led to.
Decades later, the Congress still wants to control key institutions. Its leaders lunge at the judiciary, saying that the collegium system is not working too well and that the judiciary must remain within limits. The party’s leaders ridicule the Comptroller and Auditor-General of India, make a mockery of the Public Accounts Committee and challenge the Election Commission of India. Nothing has changed.