Prof. Makkhan Lal
The Final Phase:
Between the 1973 and 1975 several amendments came in but after the imposition of emergency on midnight of the 25 June, 1975, Constitution was also made to suffer. One after another, amendments were carried out by a Parliament whose life had already expired. In August 1975 when all the opposition members in the Parliament were in jail, voices silenced and newspapers not allowed to print, 41st Amendment Bill was passed. This amendment represents ultimate contempt for the rule of law. It provided the following:
(a). No civil proceedings will lie against the President or the Prime Minister or the Governor of a State during his term of office in respect of any act done by him in his personal capacity whether before or after he entered upon the office. In other words, these dignitaries are placed above the civil law during their term of office in respect of their personal acts done before or after assuming office. A man may incur heavy debts or commit torts involving grave damage to fellow citizens but he has total immunity from civil proceedings during his tenure of office although the office has nothing to do with the debts or the torts.
(b). Life-long immunity is granted to the same three categories of dignitaries in respect of any and every crime committed before assuming office or during the term of office. A man may commit the foulest of crimes, not excluding murders of his political opponents, but if after such a criminal record he has sufficient political support to become the President or the Prime Minister or a Governor of a State, for any period of time however brief, he gets total immunity for the rest of his life from all criminal proceedings whatsoever. Pending criminal proceedings for any crime cannot be continued after he assumes any one of the three offices. Since Governorship is entirely within the patronage of the executive, lifelong immunity from criminal liability can be conferred on any individual, at a day’s notice, by the party in power.1
This shocking piece of legislation has no parallel in civilized jurisprudence. The rulers of Indian states had put themselves above the law.2
Though the Congress government under Mrs. Gandhi suffered defeat one after another in the court of law, it did not give up. In October 1976, when most of the opposition members in Parliament were in jail and censorship at its peak, a bill was passed by the Parliament and enacted as 42nd amendment. This amendment represented the most devastating attack upon the Constitution. Before we go on further, it must be remembered that these amendments were made on the recommendation of a twelve member Congress Committee headed by Mr. Swaran Singh. This committee was appointed by the Congress President to look into the Constitution and suggest ways and means to amend the constitution in such a manner that it does not come in the way of so called ‘progressive’ and ‘socialist’ policies of the government. Based on the recommendations of Swaran Singh Committee report 44 Amendment was introduced in the parliament. Through this amendment36 articles were amended, 15articles were inserted, four articles were substituted and so on. Altogether 68 sections/articles/clauses were amended/added/deleted in just one go. The amendments effectively altered the Basic Structure of the Constitution at least in four respects:
(1). Amendment overthrew the supremacy of the Constitution and made Parliament (itself a creature of the Constitution) as supreme authority to which the Constitution will be subservient. In the article 368 of the Constitution clauses (4) and (5) were inserted which said that “there shall be no limitation whatever” on Parliament’s amending power. In other words, Parliament was declared to have the power to alter or destroy the basic structure of the Constitution (including Part III) and to deprive the Constitution of its identity.
(2). Amendment sought to enact that the eternal values enshrined as fundamental right in the Constitution will no longer be justiciable or operate as breaks on legislative and executive action in most fields.
(3). Balance between the executive, the legislative and the judiciary was rudely shaken and the executive at the Centre gained enormously in power at the expense of other organs of the state, particularly the judiciary. The court’s jurisdiction to consider the validity of any constitutional amendment was ousted and it was expressly provided that no amendment whether made before the 42nd amendment or there after “shall be called in question in any court on any ground”.
(4). Amendment envisaged the enforcement of law even after they are held unconstitutional by a majority of judges of the Supreme Court or the High Court.3
The 39thand 42ndAmendments were carried out to nullify the basic structure principle laid down in the judgment of Keshavananda Bharati case. The 42ndAmendment claimedthat Parliament has the right to destroy the framework of the Constitution and that no court of law shall pronounce upon the validity of such destruction.
The amendments were so devastating that Nani Palkhiwala wrote on 22.11.1976 in Indian Express:
“Every major Constitutional change represents a mood. Today, the mood of nation which has suffered the death of its freedom is hardly conducive to a proper evaluation of long term, mind boggling consequence of the proposed amendments. It merely seeks to provide for the exigencies of the moment, forgetting that the Constitution is meant to endure through the generations to come.
“It is Diwali – the festival of lights. As the lamps glimmer in and outside millions of homes, inexorable time will be ticking away, the remaining few days before the light goes out of the Constitution.”4
In March 1977 the Indira Government was defeated and Janata Government came to power with Morarji Desai as Prime Minister. Unfortunately the Morarji Government did not enjoy the two-third majority –neither in the Lok Sabha nor in Rajya Sabha – and therefore many of the article changed/inserted through 42nd Amendment could be undone. Palkhiwala suggested the legal recourse to get the 42ndAmendment annulled. Meanwhile Palkhiwala was requested to take up the Ambassadorship of USA with the Cabinet rank. This was to correct the image of India which had taken a severe beating due to emergency. Palkhiwala’s reputation of being the champion of Human Rights and savior of the Constitute helped. When Palkhiwala returned after two and a-half years of ambassadorship he was furious and also saddened that nothing has been done to deal with 42ndAmendment. He decide to do something himself.
The issues were taken up taken up in a writ petition famously known as Minerva Mill case. The case was heard by a five judges bench presided over by the Chief Justice Y.V. The hearing commenced on 22 October, 1979 and the Supreme Court reserved the judgement on 16 November, 1979.
Palkhiwala’s submissions, as summarized by Justice Y.V. Chandrachud who delivered judgement for majority, were as follows:
1. Article 31C (inserted by the government by means of 42 Amendment) destroyed the harmony between the Parts III and IV of the Constitution by making Fundamental rights (Part III) subservient to directive principles of the State Policy (Part IV).
2. The basic structure of the Constitution rests on the foundation that while Directive Principles are the mandatory ends of the Government, they can be achieved only through permissible means set out in the Part III of the Constitution.
3. In other words, Article 31C as amended, conferred unrestrained license on the legislature and the executive to both destroy democracy and establish an authoritarian regime.
4. The destruction of fundamental freedoms guaranteed by Part III was not necessary to achieve the objectives of Directive Principles like organising village panchayats, fixing minimum wages, compulsory education and protection of environment and wildlife.
5. The Constitution permits fundamental right to be suspended only during an emergency but the amended Article 31C virtually abrogates them even in the normal times.5
The light of the Constitution was rekindled when the Supreme Court allowed the petition in Minerva Mill case on 9 May, 1980. Detailed judgement came on 31 July, 1980 which struck down several clauses of 42nd amendment including Article 31C. The Court held that:
i. The donee of a limited power (i.e. the Parliament) cannot, by exercise of the same power, convert the limited power into an unlimited one.
ii. The limited amending power is itself a basic feature of the Constitution.
iii. The ouster of Courts’ jurisdiction destroys the basic structure of Constitution.6
What we saw in the form of 42nd amendment was nothing but a small part of recommendations made by Swaran Singh Committee. The recommendations of the committee had far reaching consequences and the government of the day had the intensions to implement them all. The 42ndamendment was nothing but testing the water. It is good fortune of this country and the citizens that Supreme Court rejected some of the 42nd amendment and people rejected the very government itself which was doing everything to subvert and mutilate the Constitution. Today it would be worthwhile to look at what Congress, the very same Party which was largely responsible for the framing of the very same Constitution, ultimately wanted to do with it.
The Swaran Singh Committee had further recommended the following changes in the Constitution and the terms of Government:
a. The present Westminster system of the Government under which the Chief executive is the Prime Minister with Minister chosen from amongst the members of Parliament be replaced by the Presidential System of the Government under which the President shall be the Chief executive of the Nation. It was proposed that our President shall “enjoy more authority and powers than even the U.S. President… All the powers that are exercised by the U.S. President and all those today exercised by the Union Cabinet will be exercised by the President… The Council of Minister shall be responsible and accountable to the President… and unlike in the U.S.A. the legislative will not be too independent of the executive.”
b. In the realm of judiciary the recommendations were that there will be a “Superior Council of the Judiciary”. The President shall be the Chairman of the Superior Council of which the other members shall be: the Minister of law and justice, four persons nominated by the President, four persons elected by the Parliament, the Chief Justice and two other judges of the Supreme Court and two Chief Justices of the High Courts. This structure ensured two-third majority for the political bosses as 10 out of 15 members will be the appointee of the President and the party in power in the Parliament.7
This Council was to have the authority to interpret the Constitution and other laws, and also to be empowered to pronounce upon the validity of any legislation. “The decision given by this Council shall be final and binding on all Courts.” Thus, the Court’s jurisdiction to decide these matters was to be automatically taken away. The President was to have the power to remove or even dismiss any of the judges. The Committee recommendations further said:
c. Article 13 of the Constitution that declares laws to be void if they are inconsistent with the fundamental right of the people was to be provided with a clause that “no law shall be called in question in any court on the ground of legislative competence or any other ground”.
d. Article 32 which provides “The right to move the Supreme Court by appropriate proceedings for the enforcement of the Rights conferred by this part is guaranteed… The Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus,mandamus, prohibition… whichever may be appropriate, for the enforcement of any of the rights conferred by this Part” was to be deleted completely.8
It may be mentioned that habeas corpus act was passed by British Parliament in 1679 and is considered one of the highest achievements of human civilization.
These were a few points which were not covered by 42nd amendment and were to be taken up later. Had the Congress party succeeded in its design what would have happen to the people of this country can be glimpsed from the arguments given by the government counsel before the Bombay High Court in Bhanudas Krishna Gawde case. Here is the argument as quoted in the judgement:
“In fact, [counsel] went so far as to suggest that if the Conditions of Detention Order contained a clause that detenus are not to be allowed to eat any food, it could not be challenged and the petitioner would have no remedy by way of a petition under art.226 as long as the Presidential Order, suspending the enforcement of the fundamental right under art. 21, of which the right to eat is a part, is in force. Embolden by this proposition of (Counsel), which we cannot help observing is a startling proposition, the learned Government Pleader interposed and said that even if the Conditions of Detention Order were to authorize that the detenus should be shot, such a clause could not be challenged during the subsistence of the Presidential Order.”9
Similar things happened even in the Supreme Court and an example is famous A.D.M. Jabalpur vs. Shava Kant Shukla case, also famous as Habeas Corpus case. Justice H.R. Khanna, one of the judges who had heard Keshvananda Bharati caseand also Habeas Corpus case writes:
“Mr. Niren De, Attorney-General, who argued on behalf of the State, contended as has been done before the High Courts that as the rights to move the court for enforcement of Article 21 has been suspended, the writ petitions were not maintainable. I sought some clarifications about certain aspects to which Niren de gave replies. It was, however, found by me that some of my colleagues who used in the past to be very vocal about human rights and civil liberties were sitting tongue tied. Their silence seemed ominous. I course of discussion I put it to Mr. Niren de that Article 21related not merely to personal liberty but also to life. In view of his submission would there be any remedy if a police officer because of personal enmity killed another man? The answer of Mr. De was unequivocal: “Consistently with my arguments” he said, “there would be no judicial remedy in such a case as long as the emergency lasts”, and he added, “I may shock your conscience, it shocks mine, but consistently with my submissions, no proceedings can be taken in a court of law on that score.” The above answer put the matters in plain light and left nothing in doubt so far as the position of the State was concerned.”10
The above attitude of the government of the day was in sharp contrast to what was said by the leaders in the Constituent Assembly. They had talked of the fundamental rights, human freedom and dignity as permanent and inalienable.
Dr. B.R. Ambedkar had said:
“The Declaration of the Rights of Man… has become part and parcel of our mental make-up…. These principles have become the silent, immaculate premise of our outlook.”
Dr. S. Radhakrishnan had said:
“We must safeguard the liberty of the human spirit against the encroachments of the State. While State regulation is necessary to improve economic conditions, it should not be done at the expense of the human spirit…. This declaration, which we make today, is of the nature of a pledge to our own people and a pact with the civilized world.”
Jawaharlal Nehru said:
“A fundamental right should be looked upon, not from the point of view of any particular difficulty of the moment, but as something that you want to make permanent in the Constitution.”
See what was debated and said in the Constituent Assembly and given to the people of India:
“This declaration which we make today, is of the nature of a pledge to our own people and a pact with the civilized world”.
“A fundamental right…as something that you want to make permanent in the Constitution”.
N. A. Palkhiwala
Between 1966 and 1980 there have beensix very crucial cases to save the Constitution in general and the Part III in particular. These cases were Golak Nath, Bank Nationalization, Privy Purses, Keshavanand Bharati, A.D.M. Jabalpur, and Minerva Mills cases. There are two personalities common in all. Nanabhoy Ardeshir Palkhiwala in the court and Mrs. Gandhi in the Parliament with the common book in the hands of both – the Constitution of India. Only a fearless and as brilliant a personas Nani Palkhiwalacould withstand pressure which even Supreme Court Judges could not. The then CJI Y.V. Chandrachud had said it all. The only case Palkhiwala could not appear was in ADM Jabalpur and the Government won. Palkhiwala was shocked that Supreme Court under Ajit Nath Ray could overturn collectively nine High Courts Constitution benches’ judgements in this matter.
Besides the parliament, Nani Palkhiwala faced such formidable opponents as M.C. Setalvad, C.K. Daphtary, S.M. Seervai, Lal Narain Sinha, Ashok Sen, and Niren De. To Palkhiwala, the Constitution was a living, breathing thing, written in words so vascular, that if you cut them they would bleed. A lawyer’s weapon are words, and these Palkhiwala wielded with matchless ability and effect. To this, one must add a photographic memory and detailed knowledge of law and its precedence combined with court-craft. It was said that after Palkhiwala’s arguments Supreme Court judges took their own time writing judgments, so as not to be unduly swayed by the terrible force of rhetoric of Palkhiwala.11
It may not be out of place to mention here that Nani Palkhiwala was offered judgeship in the Supreme Court in 1963; still Nehru’s Era. He was then just about 42. Had he accepted the offer he would have become Chief Justice of India after the retirement of Justice J.C. Shah on 22.01.1971 and would have remained CJI till 15.01.1985; i.e. full 14 years. Most of the jurists agree that had he accepted the offer he would have served the cause of Indian Constitution, Courts and Jurisprudence even better.
Notes and References
1. N.A. Palkhiwala, 1997, We the People, pp. 186-87; also see Soli Sorabji and A.P. Datar, Nani Palkhiwala: The Courtroom Genius, pp. 103-41; Granville Austin, 1999, Working A Democratic Constitution, pp. 328-33
2. Palkhiwala, ibid, p. 186
3. Indian Express, 22.10.1976, also see also Soli J. Sorabjee and A.P. Datar, 2012. Nani Palkhiwala: The Courtroom Genius, pp. 172-178; M.V. Kamath, 2007, Nani Palkhiwala: A Life, pp. 301-09.
4. N.A. Palkhiwala in Indian Express, 22.10.1976; N.A. Palkhiwala, 1997, We the People, pp.201-202; M.V. Kamath, 2007, Nani Palkhiwala: A Life, p.309
5. Soli J. Sorabjee and A.P. Datar, 2012. Nani Palkhiwala: The Courtroom Genius, pp.179-81.
6. N.A. Palkhiwala, 1997, We the People, pp. 210-11.
7. For details on Swaran Singh Committee Report see, Granville Austin, 1999, Working A Democratic Constitution, pp.353-65; N.A. Palkhiwala’s article in Illustrated Weekly of India, 4 July, 1976; N.A. Palkhiwala, 1997, We the People, pp. 195-206.
9. Bhanudas Krishna Gawde vs. K.G. Paranjape And Ors., 1976 CriLJ 534
10. H.R. Khanna, 1985, Neither Roses Nor Thorns, pp.78-79.
11. Adil Rustomji,Kesavananda Bharati vs Kerala: 40 years on, what the landmark case means for India, 02 January, 2016, https://www.legallyindia.com/views/entry/kesavananda-bharati-vs-kerala-40-years-on-what-the-landmark-case-means-for-india, accessed on 06.6.2018
12. For details see George H. Gadbois, Jr, 2011, Judges of the Supreme Court of India 1950-1989, pp.105-6; Abhinav Chandrachud, 2018, Supreme Whisper: Conversation with Judges of Supreme Court of India, p. 91.