Anil Divan Foundation

[News clip: Narendra Modi's swearing in] 

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Main, Narendra Damodardas Modi, ishwar ki shapath leta hoon ki main vidhi dwara sthapit Bharat ke samvidhan ke prati, sachi shraddha aur nistha rakhunga. Main bharat ki prabhuta aur akhandta ka akshanna rakhunga. Main sang ke Pradhan Mantri ke roop mein apne kartavyon ka shraddha purvak aur shuddha antahkaran se nirvahan karunga. 

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Host: That was Prime Minister-elect Narendra Modi being sworn in after winning the 2014 general elections. It was the first time that his party, the Bharatiya Janata Party, had won a majority. And it was eager to make good on its election promises to tackle corruption. So it took the country by surprise, when, within 100 days of coming to power, it chose to amend the judicial appointments process. In essence, it wanted the government to have a greater role in appointing judges. This immediately set off alarm bells in the legal community. 

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Thirty years earlier, a different full majority government, led by an equally towering leader, Indira Gandhi, had gravely threatened judicial independence. The experience of the Gandhi years created a deep and lingering distrust between the government and the courts. And it also raised key questions. Can majority governments override the courts by amending the Constitution? How can a healthy separation between the courts and the government be maintained? But most controversial of all: who should have the final say in appointing judges: the government or the judges themselves? Welcome back to Friend of the Court, I’m your host Raghu Karnad. In the next three episodes, we look at the tussle over these questions. 

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<Transition>

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 [News Clip: Parliament passes NJAC]

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National Judicial Appointments Commission Bill 2014 as passed by Lok Sabha be taken into consideration. Those in favour please say “aye”. Chorus: Aye. Those against please say Speaker: The ayes have it, the ayes have it, the ayes have it. Motion is adopted

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Host:  For two decades before the National Democratic Alliance passed the NJAC, or the National Judicial Appointments Commission Act, judges to the Supreme Court and High Courts were appointed through what was known as the “collegium” system. The five-judge body in the Supreme Court recommended candidates to the government. The government could either approve the names it received or send them back for reconsideration. It could not however reject those names that the collegium returned, nor officially propose its own candidates. This meant the collegium had the upper hand in appointing 34 judges to the Supreme Court and 1,098 judges to the High Courts, the full strength in all the country’s higher courts. 

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The newly-planned NJAC would replace the collegium. The NJAC was proposed as a six-member body comprising the Chief Justice of India, the next two senior-most judges of the Supreme Court, the law minister and two “eminent persons.” It would dilute the judiciary’s dominance in appointing judges, and, at least on paper, place both branches on an equal footing. Judicial vacancies arise every few months, which means the government would have the opportunity to continuously, even if subtly, exercise its influence periodically through the year.

 

But why would the government seek to exert more control? It’s simple. An independent judiciary can be a powerful check on government excess in a democracy. Abhinav Chandrachud, a legal historian, writer and lawyer, who has tracked the evolution of judicial appointments, tells us more:

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Chandrachud: The judiciary really is one of the important checks and balances on the will of the political executive as expressed through a powerful majority. So really, if really, we have the idea of a parliamentary opposition, as one of the checks and balances, we have the fourth estate, in the form of free and vibrant press. And we have the judiciary, one of the most important checks. Of course we also have the Rajya Sabha, the states which exercise some control over what the Lok Sabha can do when there is a new election. And so these are all the various things that any powerful government will want to try and weaken. So the government, any powerful government, and there are, of course, examples of this having been done in our history, will try and want to weaken these checks and balances on the political executive. And what powerful governments will therefore want to do is that they will want to ensure that the independence of the judiciary is harmed, so that it can get its will. And really that's the reason why any government—I'm not talking about any particular political dispensation— would want to ensure that well, the judges, the power to appoint judges is really given to that government or the government has a large say in the manner in which those appointments take place.

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Host: In short, governments try to control judicial appointments because judges are the final arbiters of the law. To understand exactly what the NDA government wanted to do, and how, we need to circle back to the beginning. Articles 124 and 217 of the Constitution, lay down the procedure for appointing judges to the Supreme Court and the High Courts. It all hinges on one crucial word, “consultation”. This word will become the lynchpin on which all major judgements related to  judicial appointments will turn.  The Constitution states that the President must consult the Chief Justice before appointing judges to the higher judiciary. But it does not say if he or she must follow that advice. How did our Constitution framers settle on this word? Here is senior advocate Dushyant Dave explaining its importance:

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Dave: Article 124 uses the word consultation, as we all know, and it was debated during the Constituent Assembly. And some of the members suggested that please replace this word with the word concurrence. And Dr. Ambedkar rejected it. He said that I am not willing to give that kind of a supremacy to the Chief Justice, because I don't know what kind of a man Chief Justice is going to be. He may be a man who has the normal frailties of a common man. And I therefore wouldn't want to, you know, give Chief Justice a power of concurrence, a veto power over the executive. So he suggested that what I have prepared is the best way forward, where each of the organs of the state are involved in the process of selecting judges, and he expected or rather he hoped fondly, that there will be a very meaningful consultation amongst all these organs, and therefore right appointments will be made. 

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Host: “Concurrence”, would have, as Ambedkar argued, given the Chief Justice a kind of veto power. “Consultation” implied a fairer balance. On the face of it, the Constituent Assembly seemed to have designed the process giving the final say to the executive. But India’s first Prime Minister, Jawaharlal Nehru, was keen on building strong democratic institutions; and his government did not interpret this to mean that it had the upper hand. Alok Prasanna Kumar, co-founder of the Vidhi Center for Legal Policy tells us more:

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APK: If we see right from the start in 1950, two very healthy conventions were set up by Prime Minister Jawaharlal Nehru. One very healthy convention was that whoever the Chief Justice of India recommended the government would accept to appoint to the Supreme Court and also to the High Courts. The second healthy convention was that when a Chief Justice of India retired, the senior most judge on the Supreme Court would automatically become the Chief Justice of India. The second one was not uncontested. (A convention) Nehru did not necessarily want, but because the Supreme Court judges put up such a fight, he acceded to it. 

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Host: While the Nehru government had minor disagreements with the court over judicial appointments, friction between the two was brewing on other fronts. The government believed that the courts were sabotaging its social transformation agenda, especially its land reform policies. The government hoped to redistribute private property in order to create a more equitable society. And state governments introduced laws to acquire private property without immediately paying compensation. However, some landlords and business owners went to court asserting their fundamental right to property and various High Courts had sided with them. Matters came to a head when the Patna High Court struck down the Bihar Land Reforms Act that allowed the government to acquire large tracts of private land and postpone the payment of compensation. Anxious that the courts were jeopardising social reform, Nehru’s cabinet saw one way out. They decided to amend the Constitution to overcome these and other judicial decisions hampering the government’s agenda. In May of 1951, Parliament passed the first amendment to the Constitution. The amendment shielded land reforms from legal challenges and added caveats to the freedom of speech. This  move turned the Constitution itself into a battleground between the government and the judiciary. Could Parliament simply amend the fundamental rights enshrined in the nation’s founding document? The Constitution itself held some answers. Under Article 13, laws in India cannot violate fundamental rights. However, Article 368 gives Parliament the power to amend the Constitution. So, did this mean that the fundamental rights could be watered down through a constitutional amendment? The Nehru government certainly believed so. It used the first constitutional amendment to validate its land reform laws. Laws that would have violated fundamental rights if the Constitution hadn’t been amended. But these, along with the first amendment, became the subject of legal petitions anyway.  In two judgments, first in 1951 and again in 1964, the Supreme Court held that Parliament had exclusive and unlimited power to pass constitutional amendments even if they curtailed fundamental rights. An emboldened Parliament continued to pass further constitutional amendments through the 1950s and 1960s, diluting the right to property. And then, a Supreme Court judgement in 1967 delivered a shock. Alok Prasanna Kumar takes us through that case:  

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APK: The Golak Nath case essentially started off as a dispute about land reform legislation where excess land would be acquired by government to distribute to landless farmers. But the reason why that case has become extremely familiar is because itt was a six-five decision by 11 judges of the Supreme Court, which held that the union government or Parliament can never amend the fundamental rights part of the Constitution. That was the main and important finding when the Golak Nath judgement came out… here was the first time a court in India had said that there are limits to the Parliament’s power to amend the Constitution. And that is what literally set the cat among the pigeons.

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Host: The Golak Nath ruling was a departure from the court’s earlier position. In essence, the court no longer agreed with the government that Parliament could alter fundamental rights through constitutional amendments. This meant they could not be touched at all.  By this time, Nehru had died, and the Congress was in disarray. The same month that the judgement came out, 49-year old Indira Gandhi led her party to a narrow victory in the 1967 general elections.

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[News clip]

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Indira Gandhi wins 1967 election New Delhi and a victory for the Congress Party in the general election. Morarji Desai decided not to oppose Mrs Gandhi as Prime Minister. As her deputy he took his place in the new Parliament. Congress president Kamaraj approved the decision knowing that with a much-reduced majority the party will have its work cut out. Indira Gandhi needs the loyal support of all its members as Mr Desai emphasised, if Congress is to remain in power. Mrs realises that only by resolute government can India solve the problem of an enormous population beset by widespread famine

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Initially derided as a “goongi gudiya” or a mute puppet, India’s first woman Prime Minister adopted a raft of hardline socialist policies. And like her father before her, that put her on a collision course with the courts. The Golak Nath judgement meant that Gandhi started her term on the backfoot. But she was undeterred and her government was on a mission to implement its agenda. Two reforms proved controversial. The first was in 1969, when Parliament passed a law to make way for state control of 14 private banks. Then, the next year, the President, on the government’s advice, issued an order to effectively end the system of privy purses, or payments that the government made to former Indian royals. Both moves were challenged in the Supreme Court for violating the rights to equality, freedom and property. Here is Kumar on what happened next: 

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APK: So you had two fairly upset sections of the elite in India, namely, the former princely state rulers and the shareholders of all these banks, approaching the courts, and courts gave them resounding victories on both instances… Both measures were struck down by the Supreme Court, almost overwhelmingly. But in both these cases the government suffered very heavy defeats of its very key policies which have been promised and talked about in public.

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Host: The back-to-back legal setbacks left Indira Gandhi seething. She had already been running a minority government since the Congress party split in 1969. This meant that she did not have enough support in Parliament to undo court decisions through an amendment.  Just nine days after the privy Purses judgement, she resorted to the ultimate test of popular legitimacy: elections. 

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[News clip] 

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The fact is that Mrs Gandhi didn't have to face the electorate now. Her government's term of office does not run out until next year. but in her view INdia is at the crossroads and she feels she can no longer proceed without a fresh mandate from the people. 

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Host: With her pallu slung over her head, sunglasses perched on her nose, Indira Gandhi pounded the campaign trail with a simple message: garibi hatao. Her populist, pro-people platform promised to lift millions out of poverty and take on the smug elite. In the run up to the elections, she  made no secret of her disenchantment with the courts. Her campaign spoke of a “committed judiciary”, or a judiciary that in her eyes, was committed to her specific economic and social goals. 

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[News clip]

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Indira Gandhi ki jai! Indira Gandhi ki jai! 

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Host: Indira Gandhi won the elections with a thumping majority, which she took as a stamp of approval for her radical reform agenda. An agenda that included restoring Parliament’s supreme power to amend the Constitution that was taken away by the Golak Nath case. Within months of forming the government, she introduced two major constitutional amendments. Through the 24th amendment, Parliament took back the power to amend fundamental rights and curtailed the court’s power to review its decisions. The 25th amendment allowed the government to determine the amount to pay landowners while acquiring their property, which could not be questioned in court. It also shielded the government from legal challenges. 

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As you will recall, the Golak Nath judgement of 1967, arising out of a property rights case, had explicitly forbidden Parliament from amending fundamental rights. Indira Gandhi’s huge margin in the 1971 elections gave her the required strength in Parliament to overcome that judgement. Alok Prasanna Kumar tells us more: 

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APK4 (12:49-13:18): These were amendments made in response to the Golak Nath case, where the idea was to try and limit the scope of what the judiciary could review about land reform legislation. I'm simplifying, of course, there is much more technical detail, which I don't want to get into. But very simply, the idea was to narrow down the scope of judicial review, and in some cases, do away with it entirely to say no court can look at the constitutional validity of certain kinds of legislation.

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Host: Land reform laws were already the subject of many legal petitions and the 24th and 25th amendments were bound to crop up in courts. In 1970, a year before they were passed, an unassuming Kerala godman called Kesavananda Bharati, had approached the Supreme Court. Alok Prasanna Kumar tells us about his petition. 

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APK5 (12:03-12:17): That gentleman himself had very little to do with it. He was actually this pontiff, a seer based in Kerala, part of whose land had been acquired by the Kerala government under land reform legislation. He wanted to challenge that part of the monastery's land and so on had been challenged… So you have someone who happened, it's not as if he aimed to challenge that provision of the Constitution, who happened to sort of be in the right position in the cause list of the case. So the case is identified with him. In filing the challenge against this law, challenge was also made to three amendments to the Constitution of India.

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Host: The three amendments in question were the 24th, 25th and the 29th. The 29th amendment was meant to shield changes to the Kerala Land Reform Act from court intervention. The government passed the amendment in June 1972, while Bharati’s challenge was waiting to be heard. Leading lawyers and constitutional experts like Nani Palkhivala believed that Bharati’s petition could potentially reopen the debate on Parliament’s amendment powers.  

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The government too had its own expectations from the case. It hoped that the Kesavananda Bharati petition would override Golak Nath and legitimise the 24th and 25th amendments. This would allow the government to carry out further constitutional amendments even if they brushed up against fundamental rights. 

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What guarantee did the government have that the court would side with it? The government was playing the long game. In 1971 and 1972, there were nine vacancies for judges in the Supreme Court. With a momentous case looming, the government began to take an active interest in appointing judges. A total of nine judges were appointed in 15 months, from July 1971 to October 1972, in a mad flurry of activity that historians say had never been seen before. The government was confident that some of its appointees would form part of the bench and swing the case in its favour. Alok Prasanna Kumar tells us more, 

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APK: After the term of Chief Justice of India Hidayatullah, you have Justice SK Sikri take over as Chief Justice of India. One convention changes, which is: it is not just the Chief Justice of India, whose recommendations become judges of the Supreme Court, the union of India also starts to assert itself in the appointments process… the government started saying if you're going to suggest some people, we will process it only if you accept these other people. And usually, in the past, the names would originate from the Chief Justice. Chief Justice of India would say I want x as a judge. Now, it would be accompanied by the government saying we don't have a problem with x. But why don't we consider y also as a judge. , From what we know, of the records, both the judiciary as in the Chief Justice of India, and the government had their way in this.

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Host: On 31st October 1972, a 13-judge bench started hearing the Kesavananda Bharati case. Nani Palkhivala led the arguments for Bharati alongside newly appointed senior advocates, like Anil Divan and Soli Sorabjee. Pitted against them was Attorney General Niren De for the centre and legal giant HM Seervai for the state of Kerala. Arguments went on for 66 days before a bench headed by the Chief Justice of India in court room number 1. 

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The court had to decide on a key question: Did Parliament have the power to amend fundamental rights?  And if it did, what were the limitations? What was at stake was the future of fundamental rights themselves.  

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The history-making case dominated daily headlines. Newspapers carried detailed stories of the complex arguments of both sides. The nation was hooked: even stars like Dilip Kumar and Simi Garewal  visited the  courtroom to watch the arguments. Drama dogged the case right till the end when one judge, Justice Beg was hospitalised, and the Chief Justice was on the cusp of retirement. 

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Given the uncertainties, lawyers nervously wondered if the case would have to be argued from scratch before a new bench. Eventually, on April 24, 1973, the court delivered a split opinion of 7 to 6. The majority broadly upheld the validity of the 24th, 25th and 29th amendments. In doing so, it basically overruled the Golak Nath judgement, saying that Parliament did have the right to amend any part of the Constitution, including fundamental rights. This might have seemed like a victory for Indira Gandhi. But the court didn’t stop there. Even though it declared that Parliament could exercise its amending power, it drew a hard line—Parliament could not touch some basic features of the Constitution. Thus emerged the Basic Structure doctrine. Alok Prasanna Kumar explains:  

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APK: So what the Basic Structure doctrine said was, and this is makes it even more complicated, it said that there are parts of the Constitution which you can amend, but you can't get rid of completely and they refuse to list out exhaustively. It's not like they said, articles XYZ, ABC, you cannot amend. It was, these are broad ideas that you can take out of the Constitution. So for example, parliamentary democracy can’t take out of the Constitution, judicial review, you can’t take entirely out of the Constitution. You can’t take various other features of the Constitution out of it entirely.

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Host: The judgement defined the Basic Structure by in fact, not really defining it at all. It did not list every possible aspect that the doctrine could embrace. Abhinav Chandrachud explains:

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Chandrachud: So what was the Basic Structure was something really for a future court to tell us. And over the years, we have some idea of what falls within the Basic Structure of the Constitution, we know that the concept of separation of powers is within the Basic Structure of the Constitution. We know that secularism is a part of the Basic Structure of the Constitution as a result of the Bommai judgement.

 

Host: In the future, the Kesavananda Bharati judgement would become the bedrock of constitutional interpretation, including as we shall see, in the National Judicial Appointments Commission or the NJAC case. The Basic Structure doctrine potentially made the Supreme Court the most powerful court on earth. This was the first time that a court anywhere in the world asserted its power to review constitutional amendments. But in the immediate aftermath, it triggered a constitutional crisis. The judgement was delivered just one day before Chief Justice S M Sikri was to retire. No one knew who would take his place. Convention dictated that the next senior-most judge, Justice Shelat, should take over, but the government had made no such announcement. Had it been biding its time to see which judges would rule for or against it? What the government did next only confirmed this suspicion. Chandrachud tells us more. 

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Chandrachud: What happened was that judges who had decided cases against the political executive, they were Justice Shelat, Hegde and Grover, who were really in the majority in the Basic Structure case,  decided in 1973. So when these three judges decided against the Indira Gandhi government, they were all in line to be appointed Chief Justice of India, according to the seniority convention. And what Prime Minister Indira Gandhi did to these three judges is that she essentially superseded them. And she appointed a judge called Justice AN Ray, who was not in line to be appointed the Chief Justice of India. And the theory was that well, of course, the government didn’t outright say that it was because these three judges had decided against them. They gave all sorts of excuses. They said, well, these three judges will not have a sufficient tenure in office and so on.

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Host: Justice AN Ray had thrice ruled in favour of Indira Gandhi’s government in major verdicts. He was in the dissenting minority in both the privy purses and bank nationalisation cases, where he wrote opinions agreeing with the government’s positions. And now in Kesavananda Bharati, he sided with the government once again. It would not be for the last time. 

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Meanwhile, Indira Gandhi’s problems in court were far from over. On 12 June 1975, the Allahabad High Court set aside her victory in the 1971 general elections finding her guilty of electoral malpractice. As calls for her resignation grew louder, an insecure Indira Gandhi lashed out. On 25th June, President Fakhruddin Ali Ahmed declared a National Emergency citing unrest in the country. 

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[News clip]  

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The President has proclaimed Emergency. This is nothing to panic about.   ​ 

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Host: But there were very real reasons to be afraid. On June 27, 1975, the right to equality, the right to life and liberty and the right against preventive detention were effectively suspended by the President. On June 29, 1975, the government amended a draconian preventive detention law to allow authorities to detain people without providing a reason. Prominent opposition leaders including Morarji Desai, JP Narayan, Atal Bihari Vajpayee and LK Advani were arrested under these laws, along with many other political activists. 

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The legality of these arrests was challenged in various High Courts and the petitions eventually wound up in the Supreme Court. The questions before the court were simple. Did the President have the power to suspend the fundamental right to life and liberty during an Emergency? Did detainees have the right to challenge their arrest during an Emergency? A five-judge bench, headed  by Indira Gandhi’s controversial appointee Chief Justice AN Ray, heard the case for 37 days. Alok Prasanna Kumar tells us more about the speculation in the run-up to the hearings. 

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APK: This was a case which featured the then five senior-most judges along with the Chief Justice AN Ray, Justice Khanna, of course, Justice Beg, Justice Chandrachud and Justice Bhagwati… if you see accounts of the case, a lot of lawyers feel that we've got a fair bench. We've got a fair bench, we think at least three of them, at least three of them, which is Bhagwati, Chandrachud and Khanna are sufficiently pro-human rights to accept the awfulness, the awfulness of, you know, saying that entire habeas corpus gets suspended. That no one has any right to move any court for detention or even literally outright murder by the police during the Emergency. Surely this shouldn’t go that badly.

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Host: But it did. In a 4 to 1 opinion, the bench, headed by Justice Ray, sided with the government and against the people. The majority held that citizens do not have the right to challenge their detention when the right to life and liberty is suspended during an Emergency. Justice HR Khanna was the sole dissenting judge. He held that a citizen had a right to trial even if the state had suspended fundamental rights. His brave opinion proved costly to him. Alok Prasanna Kumar explains how:

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APK: In his own autobiography, Justice Khanna says that I basically told my family I've just written a judgement that is  going to cost me my Chief Justiceship. He had seen what had happened to the other three judges, but he chose to do it nonetheless. And yes, the government refused to make him Chief Justice. He was superseded in favour of Justice Beg and he resigned, obviously. So this is the second time that that convention was violated to some extent.

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Host: As we saw in the Nehru years, clashes between the courts and the government were not new. But previous governments had rarely allowed their disagreements with judges to spill over into the appointment process. That changed with Indira Gandhi’s vengeful move to sidestep three senior judges to appoint Justice AN Ray as Chief Justice. The delicate balance of power between these two branches was disturbed once and for all. 

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[Audio clip] 

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Ek shantipurna kranti hui hai. Lokshakti ki lahar ne loktantra ki hatya karne walon ko itihas ke kude dan me phek diya hai... Aur Shrimati Indira Gandhi har gayi.

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Host: That was Janata Party leader Atal Bihari Vajpayee addressing a public meeting shortly after the 1977 elections. Indira Gandhi had abruptly ended the Emergency, providing no reason, and called for elections where she was defeated by the Morarji Desai-led Janata Party. This government was short-lived, and Indira Gandhi returned to power in 1980.

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The memories of the Emergency would continue to haunt her fresh term and keep the tensions between the government and the court alive. As we will see in the next episode, Indira Gandhi’s final attempt to stifle the judiciary eventually succeeded. But the Supreme Court would not take this lying down.

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Join us in the next episode as we explore how judges began appointing judges through a mysterious and secretive process. Until then, I am your host Raghu Karnad, and this is Friend of the Court.