Ponmala

Two happenings within a week spanning on 31 August and on 6 September of this year are pointers to defining moments in the history of India’s Supreme Court, for reasons that are quite contrary. One takes us back to the Supreme Courts’ most glorious height and the other to its shameful nadir; one safeguarded the basic structure of our constitution and the other exposed the folly of judges.
Swamy Kesavananda Bharati, the scion of Edanir Matom in Kerala’s Kasargode District, passed away on 6 September. He is known in legal circles as the ‘guardian of the Constitution.’ He approached the Supreme Court in 1970 against the Kerala Land Reforms Act, which came into effect that year and deprived his matom of most of the vast area of land it owned. On its heels, Indira Gandhi abolished the privy purse and nationalised banks in 1969, coal mines in 1971-73 and petroleum companies in 1974-76.
In the hearing of the case that lasted for 69 days, Palkhivala himself argued the case on behalf of the plaintiffs for 33 continuous days. The 13 judges pronounced 11 judgements in all on 23 April 1973. The judgments maintained the validity of the Kerala Land Reform Act and of the amendments of Articles 24 to 28 and of placing them under Schedule 9. They also said that parliament has the authority to amend the Constitution, including fundamental rights, in any manner it liked. They further said that the parliament can even replace the present constitution with a new one. But in a 7-6 split verdict they struck down certain amendments to Article 25 and ruled that parliament has no authority to amend the basic structure of the Constitution, which is generally understood to include aspects like democracy, socialism, rule of law and independent judiciary. This has been reiterated later in many judgements of the Supreme Court.
Chief Justice Sikri retired on the day following the judgement. The next in seniority were three judges who like him held the view that parliament had no right to change the basic structure of the constitution. So, for the first time in Independent India’s history, seniority was overlooked and the fourth judge in seniority, Justice A N Ray who favoured the government, was made Chief Justice. In protest, the three superseded judges resigned. Then followed a furore. Accusations against Indira Gandhi flew thick and fast: Judges who did not do Indira Gandhi’s bidding would be made to suffer the consequences; the judiciary and the rule of law have been decimated; there is no independent judiciary; Indira Gandhi is a fascist autocrat; and so on. Retired judges and leading lawyers like Palkhivala and Soli Sorabjee joined the chorus. The Emergency that followed was interpreted as a vindication of their claims.
During Emergency, the central government filed a review petition against that part of the judgement which denied parliament the right to amend the basic structure of the constitution. Indira Gandhi’s confidant was then Chief Justice, and the judges who had ruled against changing the basic structure of the constitution had resigned or retired or died. That created a conducive environment for the government. But Palkhivala argued so effectively and convincingly that even the bench that was now filled with judges that had sided with the government couldn’t but uphold the original judgement. Even Justice Ray had to concede to the strong points of law argued by Palkhivala for not entertaining the review petition. That was how Kesavananda Bharati paradoxically became an instrument for safeguarding the basic structure of our Constitution through a case that he lost.
Fast forward to this day. A three-member bench of the Supreme Court punishes senior advocate Prashant Bhushan on 31 August with a fine of Re 1 or imprisonment of three months and debarment from practice for three years. The court had earlier found Prashant Bhushan guilty of contempt of court for his tweets against the judiciary, for which he refused to apologise. Bhushan had only stated the obvious in his tweets, but for the judges, inconvenient truths were contempt of court. And they added insult to injury to their own reputation by putting a value of just one rupee on three-month imprisonment and three-year debarment from practice. Judicial folly!
Prashant Bhushan’s point was that for the last six years the Supreme Court has been acting as the handmaid of the Modi Government. The contempt of court case can only be seen as a vindication of his stand. The situation hasn’t changed a wee bit. A Public Interest litigation seeking to alter the basic structure of the Constitution by deleting the words ‘secular’ and ‘social’ from its preamble has been filed in the Supreme Court. Don’t be surprised if the landmark judgement in Kesavananda Bharati case gets overturned.