How the sad demise of a Holy Seer brought back the memory of Indira Gandhi’s blatant abuse of power

His name in the title of a case (Kesavananda Bharti Vs State of Kerala, 1973) is quoted again and again by jurists, legal luminaries and law students. His petition in the Supreme Court against the government led to the most significant and biggest landmark constitutional case of India.

His Holiness Shri Kesavananda Bharti Sripadagalavaru, a prominent spiritual leader, the pontiff of Edneer Mutt in Kasargod left for his heavenly abode in the early hours of Sunday, September 6th, at the age of 79. He was an ardent follower of Sri Shankaracharya and Advaitta Philosophy. It is widely believed that Edneer mutt was founded by one of the first four disciple of Adi Shankaracharya. He was known as a philosopher and a Classical Singer. He spent his life in contributing towards community service and improving the life of downtrodden. He was a great patron of Yakshagana and worked for reviving this traditional theatre form of Karnataka.

But apart from his above-said pursuits related to his saintly life, he was very famous in the legal and the constitutional field. His name in the title of a case (Kesavananda Bharti Vs State of Kerala, 1973) is quoted again and again by jurists, legal luminaries and law students. His petition in the Supreme Court against the government led to the most significant and biggest landmark constitutional case of India. The Largest ever bench of 13 judges in the history of Supreme Court, had the longest hearing of 68 days and gave a landmark verdict in Kesavananda Bharti case. This very verdict founded the Basic structure doctrine of Indian Judiciary which meant that some basic features of Indian constitution could not be altered even by the means of amendment under article 368.

In the year 1970, Edneer Mutt’s Land was also acquired along with the numerous pieces and parcels of privately owned land by Kerala government under the state Land reforms act. It started a spree of litigations. To avoid the scrutiny of the courts on the detailed provisions of State Land Reforms act, Union govt. led by Indira Gandhi placed this act under Schedule IX of constitution which was immune to judicial review at that point of time.  Swami Kesavanad Bharti moved the petition in Supreme Court under Article 26 (Right to manage religious affairs – to own and acquire movable and immovable property).

Even though Swami Kesavananda Ji lost the case and could not get back his land from Kerala government but the winner of the case was the spirit of constitution, as envisaged by the members of the constituent assembly. The verdict of this case bolstered the position of Supreme Court as custodian of the constitution and protected the independent nature of Judiciary from the excesses of erstwhile Congress government. Court ruled that even parliament could not change the basic structure of Constitution and Schedule IX could not take away the power of judicial review from Supreme court. Hence, acts kept under Schedule IX could be subjected to Judicial review. This case gave India constitutional guarantee.  

Before the verdict of Kesavanada Bharti Vs State of Kerala, Indira used Schedule IX as the cloak for robbing the Judiciary of its power of judicial review enshrined in our Constitution by simply keeping an act in schedule IX. Under the garb of this Schedule she tried to shift the constitutional balance of power to her advantage.

Restriction on her power by court ruling in Kesavananda Bharti case miffed Indira Gandhi to the core as she was unaccustomed to constitutional controls. She retaliated by elevating Justice Ajit Nath Ray, who was the dissenter judge, to the post of Chief Justice of India superseding three senior most judges who were signatories of the judgement in Kesavanada case. It was unprecedented in India Legal history. When Justice Ajit Nath Ray accepted the post of CJI, all of the three judges (Justices Jaishanker Manilal Shelat, A N Grover and K S Hegde) senior to him resigned.

Advocate C.K. Daphtary termed the incident as “the blackest day in the history of democracy.” Justice Mohammad Hidayatullah (previous Chief Justice of India) remarked that “this was an attempt of not creating ‘forward looking judges’ but ‘judges looking forward’ to the office of Chief Justice.

Awarded with the post of Chief Justice sans seniority, Justice Ajit Nath Ray set up a bench of 13 judges to review the Kesavananda Bharti Case. But, to the fortune of Indian Democracy, this bench was dissolved after two days of argument citing absence of written review petition. But this could not deter the constitutional misadventures of Mrs Gandhi, which culminated into the imposition of emergency in the month of June, 1975.

Emergency gave her leeway to aggrandize her power by curtailing the constitutional power of Courts. She passed the 39^th constitutional amendment in Aug, 1975 which placed the election of President, Vice- President, Prime minster and speaker of Lok Sabha beyond the scrutiny of Indian Courts including Supreme Court.

During emergency, she enacted the most controversial amendment act, 42^nd constitutional amendment Act, 1976. It was known as a mini constitution as it contained a long list of provisions, all aimed to make her powers unquestionable.  42^nd amendment act abrogated the ruling of biggest bench of Supreme court in Kesavananda Bharti case and gave absolute power to parliament to amend any part of constitution. The power of Supreme Court to validate the constitutionality of any amendment was also snatched.

If a student of political science or a curious citizen believes that imposing emergency was Indira Gandhi’s only ill-intentioned attack on the constitution and abuse of Democratic system, then he or she is wrong. No doubt that imposing emergency in 1975 was her biggest blow on the roots of Indian democracy. It was just shy of dictatorial coup, where opposition leaders were jailed, media was gagged, and suddenly citizens of this country literally lost their independence. But definitely emergency was not her only attempt but it was the obvious culmination of her sequential  attacks where she, drunk high on the power of numbers, tried to trample the tenets of democracy, threatened the independence of judiciary and disturbed the constitutional balance of power.

In terms of abuse of power of her democratic position, she was a serial offender. Even before imposing emergency, she was hitting hard continuously at the constitutional balance of power between the Executive, the Legislative and the Judiciary. It will be worth mentioning to discuss each incidence in brief.

In the year 1967, while awarding the verdict in I.C. Gokalnath Vs State of Punjab case (1967 AIR 1643, 1967 SCR (2) 762), an 11 Judge Bench of Honorable Supreme Court held that Parliament cannot amend the Fundamental Rights of citizens by the process of amendment under article 368. And if Parliament wants to radically change Part III of constitution which contains Fundamental Rights, then a new Constituent assembly must be convened.

This decision did go well with Congress government and left Indira Gandhi Red-faced. By any means, she in collusion with the communists wanted to abrogate the ruling of Supreme Court in Gokalnath Case. Indira struck back with the 24^th Constitutional amendment which provided parliament the unconditional power under article 368 to amend any part of constitution. As she did want any anticipated hurdle in exercising her absolute power, 24^th amendment took away the discretion of the President and made his/her consent obligatory under article 368. The Indian Press criticised this amendment, jurists opposed it and all the surviving members of Constituent assembly at that time rued it.

In the year 1969, just two days before the session of Parliament, Indira govt. promulgated the Banking company ordinance which nationalised 14 Banks. This ordinance had a very harsh and controversial provision which read that in case of disagreement with government on the amount of compensation, a Tribune would decide the compensation but it would be paid 10 years after the tribune’s decision. Later, the Parliament also passed the Banking Company Act with same provision.  

R.C. Cooper, a majority share holder in one of the Bank filed writ petition in Supreme Court. (AIR 1970 SC 564; 1970 SCR (3) 530). Supreme Court invalidated the Banking Act as it was in contravention to Article 31 which bounded the government to pay compensation to the owner of acquired property and also it was against article 14 (Equality before Law) as Foreign Banks were allowed to function. Reacting to this ruling, Indira Gandhi held cabinet meeting and brought 25^th constitutional amendment which not only negated the ruling of Supreme Court but also barred the courts from intervening in the matter of compensation of property.

At that time, Legal expert V.G. Ramachandran opined that 25^th amendment smacks of totalitarianism. He described the 24th and 25th Amendments as “not ‘tinkering’ with the Constitution but a veritable slaughter of the Constitution.

The repeated abuse of power by Indira Gandhi was horrific and smacked of dictatorship. It is the irony of Indian Democracy that these transgressions were never debated upon adequately and never taught in the books of political science. In an organised way, with the help of patronised intellectuals, rewarded academicians, eulogised liberals and subjugated bureaucracy which was hell-bent on pleasing its master, an ecosystem was created. This ecosystem swept Indira Gandhi’s constitutional transgression away from active public and political discourse saving it from critical analysis.  As Indira Gandhi’s family members went on ruling the country for decades after her either as PM or Super PM, this Ecosystem further bloomed with more fertility and covered up her grave misdeeds more efficiently.

It is not ideological difference but sheer baseless hate for Modi that the so called secularists, intellectuals and liberals accuse the Modi government of disregarding the constitution on drop of a hat but excuse themselves from commenting on Indira’s constitutional trespassing. This so called intelligentsia can never appreciate the commitment of Modi government towards the authority of Constitutional Institutes. BJP had the construction of Ram Temple on their Election manifesto of 2014. But it did not choose the route of ordinance promugalation for Ram temple despite having numbers in parliament. It waited six years for Supreme Court decision for carrying out Bhoomi Pujan at Ayodhya.

Whatever may be one’s political or ideological inclinations, he/she cannot deny the fact that Congress party deserves praise for its survival skills, which are based on principles of divisive politics, as even after committing the brutal murder of democracy in June 1975 and conspiring to damage the constitutional institutions on various occasions, it is still sailing in the political arena of India.   

Had it not been for the Supreme Court ruling in Kesavananda Bharti case, categorically stating that Basic structure of constitution could not be touched, we cannot imagine to what level of triviality Indira Gandhi would have reduced the Constitutional Institution and its principles. The reasoning in this case was so potent that it had been used and quoted in various subsequent landmark judgements of Indian courts. Supreme Court of Bangladesh in 1989 adopted the basic structure doctrine by expressly relying on the reasoning in the Kesavanada Bharti case.

As we pray to God to provide Moksha to the revered saint Kesavananda Bharti; we, the Indian citizens, must be thankful to him for moving the writ petition of fundamental Right in Supreme Court, just at the age of 30, under the guidance Legal Luminary Nani Palkhiwala. Hearing on this petition only resulted into the guarantee of the basic structure of constitution for citizens. This guarantee saved the constitution and the country from the hands of tyrannical and dictatorial ruler, who was hell-bent to usurp the power of the constitutional institutions and rendering them hollow and authority-less.