Episode 1: Jhame-law

Transcript

Click her for annotated script

Nehru: Humne nischay kiya tha ki badi zamindari, badi jagirdari aur badi talukdari iska anth ho jana chaiye. Aur jo kaam karta hai zameen par, kisan ko pura phal milna chahiye. 

Host: That was India’s first Prime Minister, Jawaharlal Nehru addressing a rally before the country’s first general elections in 1952. 

Nehru (25.15 to 25.28): Ye nahi ki aur log uska le jayein. Aur ye kaam hum kar dete ab bhi, lekin kuch kanoon ke jhamelon mein phas gaye aur badi badi adalaton ne gadbada diya. 

Host: Nehru was explaining his government’s efforts to eradicate the zamindari system, a feudal pattern of landholding. At the end of that clip, he says these reforms had been stuck in a “legal jhamela” — a mess. This was one way to describe an emerging constitutional crisis — which would, over the next twenty years, culminate in India’s most important court case: Kesavananda Bharati vs State of Kerala. 

The Supreme Court heard the Kesavananda case for 66 days between October 1972 and March 1973. The best legal minds in the country appeared before a 13-judge bench, the largest ever to be constituted, before or since. They were there to argue pivotal questions that shape our political system: Who is the ultimate custodian of the Constitution: Parliament or the courts? To what extent can Parliament change the nation’s founding document? Or take away our fundamental rights? And what is the court’s role in preserving these rights? 

You are listening to the first episode of Friend of the Court season 2, a podcast series from the Anil Divan Foundation where we explore historic legal cases that have shaped India. My name is Raghu Karnad. I am a journalist and a writer, and your host for this podcast. As someone who reads, and writes about history, I’m fascinated by one decade, the 1970s, when the character of independent India was up for grabs. 

I’ve always known that there was this one case, with a nail-biting finale, on which so much turned. But I never really took a closer look or understood it, so I’m excited that this season we present the courtroom drama, the behind-the-scenes stories, and the intricate reasoning that went into Kesavananda Bharati vs State of Kerala. But first, we need to travel a little further back. All the way to the early years of the republic, to unpack the jhamela which set Kesavananda in motion. 

<Title track>

Host: India won its independence on 15th August 1947. The country was free to shape its destiny. Much of this shaping was done by the nearly 300 members of the Constituent Assembly of India. 

Clip: Nehru: Freedom and power bring responsibility. That responsibility rests upon this assembly. A sovereign body representing the sovereign people of India. 

Host: For three years between 1946 and 1949, the assembly met and deliberated the values and institutions that would define the new nation. It created a Constitution that established a democratic republic.

Clip: On this day, the 26th of January 1950, the people of our country through their accredited representatives have redeemed a solemn pledge. 

(0.45 to 0.57) A pledge which brings into being a new nation. A new nation but with an ancient heritage. A republic that once again takes its rightful place among the freedom loving countries of the world. 

Host: It was a revolutionary moment. It introduced a representative government, an independent judiciary, universal adult franchise among many other things. It outlawed untouchability. for the first time in history.For the first time in history,, it gave all Indians equal status and freedoms. 

Clip: Henceforth, each one of us will have the fundamental rights of equality before the law, equal opportunity in matters of public appointment, abolition of untouchability, right to free speech and expression, prohibition of human trafficking and forced labour, freedom of religion, protection of minorities and many other safeguards. These safeguards which are the very bulwarks of democracy have been guaranteed to us in the written Constitution. 

Host: These fundamental rights were given a special status. They could not simply be taken away by the state. 

Clip: Our constitution has provided four safeguards. First, the judiciary, consisting of the Supreme Court and various high courts. These will safeguard the fundamental rights of citizens by just and proper interpretation of the law. 

Host: But as the new nation was coming into being, its people were in extreme anguish. Partition had led to a humanitarian crisis. Caste and religious fissures permeated Indian society. Food shortages were acute. The biggest problem of all was that the vast majority of Indians lived in crippling poverty. 

Clip: In India, nearly everyone is hungry. Success of the new regime may ultimately depend on whether India’s leaders can rapidly improve the general standard of living. 

Host: Individual freedoms and rights would amount to nothing if people went hungry and landless. As a result, the post-Independence politics of Nehru and his colleagues was dominated by the quest for social equality and economic redistribution.  At the heart of that agenda were land reforms. 

Clip: Ajab tori duniya from Do Bigha Zamin

Host: Through much of India, high-caste zamindars, or landowners, controlled the land on which peasants cultivated their crops. There was political consensus that land reforms were a crucial step towards reducing poverty and attacking historical inequality. The reforms broadly meant ending zamindari control over land rents and property titles, and redistributing land to tenant farmers, whilst also giving tenants more rights. 

Clip: We must complete this task and eliminate all intermediaries and fix a limit for the size of holdings. But the main object of land reforms is a deeper one. They are meant to break up the old class structure of a society that is stagnant. 

Host: Provincial governments across the country, mostly led by the Congress Party, embraced this agenda enthusiastically. Even before the first general elections, they began introducing land reform laws. But these laws immediately ran into legal trouble. Landowners challenged them in court saying that they violated the fundamental right to property laid down in Articles 19 and 31 of the Constitution. Under these provisions, the government was required to pay compensation to property owners at market value when it took away their assets. The government evaded that. Namita Wahi, a Senior Fellow at the Centre for Policy Research and an expert on land rights explains why: 

Wahi: The whole point is, the whole point of the freedom struggle, you know, the Champaran Satyagraha that Gandhiji did, you know, it was against the oppression of the British, but it was also against, you know, the oppression of zamindars that were Indian zamindars. So you know, it’s politically illegitimate. It’s economically not feasible, and it is socially undesirable to compensate these zamindars at full market compensation.

Host: But the courts sided with the landowners. Starting in 1950, various high courts began striking down land reforms. They said these laws violated fundamental rights, something that another provision, Article 13 of the Constitution explicitly said that no law could do.  

Liang: What is article 13? 

Host: This is Lawrence Liang. Liang is the Dean at the school of law, governance and citizenship at Ambedkar University Delhi. He has written extensively on intellectual property, public culture and comparative legal theory. He also teaches a class on Indian constitutionalism, including the Kesavananda Bharati case. Here he is taking us through one of the building blocks of our story. 

Liang (3.0 to 3.11 and 3.15 to 3.24): Article 13 is the provision that is supposed to be the guarantor of fundamental rights in the Constitution. It basically says that any law which abridges or takes away the rights conferred in part three of the Constitution, which are the fundamental rights are to that extent void, which means that you can’t pass Parliament cannot pass a law, which is in contravention of the fundamental rights.

Host: The message from the courts was clear: the government would have to find a way to achieve its goals without violating fundamental rights. The government, on the other hand, was worried that the courts were obstructing its social transformation agenda. Here’s Nehru himself explaining this dilemma in an interview:

Clip: Interviewer: In India people feel that India is slow on the land problem. Can you give us a lead on that? 

Nehru: That is perfectly true, we are slow. Partly because of democratic processes being slow. Partly because of our Constitution laying stress on individual rights and liberties. It has been so interpreted by the courts that many of our legislative measures are hung up by the courts.   

Host: Nehru was in no mood to cede to the courts, and what he did next escalated matters dramatically. 

In June 1951, just 18 months after the Cons had been adopted, the government amended the Constitution for the first time. The first amendment did several things. The part relevant to our story is this: it said land reform laws could no longer be examined by the courts. Even if these laws violated fundamental rights, the courts could not strike them down. 

Some MPs were disturbed by the government’s haste. They accused it of treating the founding document like a scrap of paper. But Nehru was unfazed. He was convinced that Parliament, as the only elected body, was best placed to decide what was right for the country. Not unelected judges.  

Liang: He says, who knows better than us, and he was right, in one regard, because the first Parliament was also the first Constituent Assembly. 

Host: This is Lawrence Liang again. 

Liang: Right? So he said that who knows better than us, we are the ones who drafted this Constitution, who knows better than us what is that we intended? So how is the Supreme Court while interpreting the Constitution actually going so against us and are at loggerheads against us? They have no right to do this. Article 368 is invoked for the first time. And the first amendment is brought. So it’s rather dramatic, right? What’s happening at that point of time, but it sets the stage for what will eventually unfold all the way with the Kesavananda Bharati case. Which is simply the question of who is the ultimate guardian of the Constitution?

Host: He’s just introduced another Article that will be at the heart of our series. Article 368 of the Constitution is its amendment provision. It lays down a relatively straightforward process. All it takes is a two thirds majority in Parliament and, in some cases, support from half the states to pass a constitutional amendment. This wasn’t a problem for Nehru. The Congress commanded a significant majority in Parliament. That wasn’t all. The government used the open-ended phrasing of Article 368 to its advantage:

Liang: When article 368, says that the parliament can amend the Constitution, it’s not giving you any detail. It’s not telling you to what extent it’s not telling you what cannot be amended. It’s just telling you you have the power to amend. 

Host: The government took this to mean that Parliament had absolute power to amend any part of the  Constitution. 

[Beat]

Host: The First Amendment might have solved Nehru’s immediate problems, but it opened up a can of worms. The debate was no longer just about the rights of property owners versus social justice. It now turned into a fundamental dilemma about our Constitutional framework, and it all hinged on the meaning of one simple word: law. 

Let’s take this step by step. On the one hand, Article 13 of the Constitution said no law can violate fundamental rights. But the government passed constitutional amendments, even if it meant violating fundamental rights. This brings us to the heart of the puzzle: did the term law include  constitutional amendments? Were the two different from each other? It took almost 20 years for the country to answer this question conclusively in Kesavananda Bharati. 

The government insisted that amendments were different from ordinary laws. Courts could not examine the substance of amendments. All the courts could do was review if Parliament had followed procedure while passing them. By this logic, the court could not question the first amendment for violating fundamental rights. And the land reforms were safe. But landowners once again dragged the government to court. This time, the court had to answer the question: were amendments different from ordinary laws? 

Liang: if Article 368 is very clear that the Parliament has powers to amend the Constitution, are there any limitations that can be placed upon it? And the court says no, there are no limitations that can be placed upon it. 

Host: The court unanimously agreed with the government’s view. Constitutional amendments were not the same as laws. It said that Parliament had absolute power to amend the Constitution. Even if it violated fundamental rights. The court could only examine if these amendments had been passed according to procedure. The government had won this round.   

However, the court could still strike down ordinary laws. So, in the following years, a pattern emerged. Every time the court struck down a land reform law, the government responded by passing constitutional amendments to shield these laws. And property owners kept approaching the courts. In 1964, in what came to be known as Sajjan Singh the Supreme Court was once again asked to examine the question: are constitutional amendments different from ordinary laws? This time, the Supreme Court was divided: 

Liang: You also begin to see the doubts, in a way increasing, when you start looking at the number of times, the Parliament is actually amending the Constitution, and the purposes for which it is amending the Constitution. And that’s, I think, a very important part of the story. Because what you end up having in terms of the overall story is that every time the Parliament finds itself bound, or fettered in any manner, by a judgement, they overcome the judgement by introducing an amendment. 

Host: Three out of the five judges said Parliament had absolute amending power, but as Liang says, two others raised doubts. Justices Hidayatullah and Mudholkar wondered if the Constituent Assembly really intended to give Parliament the power to take away fundamental rights? If so, wouldn’t eroding these basic principles amount to destroying the Constitution itself? But these doubts did not change the status quo. The majority still agreed that Parliament’s power to amend was unfettered. Then came Inder Golak Nath. 

Host: The man who lent his name to one of India’s biggest constitutional cases was a third-generation Bengali immigrant to Punjab. All we know about him is that his grandfather, Golak Nath Chatterji, was a Christian convert who walked across North India and settled in Punjab in the mid-19th century. After joining a Scottish mission, he became the first Indian to be ordained as a Presbyterian minister. Golak Nath Chatterji led a congregation and then set up a church in Jalandhar. His sons Henry and William later expanded it into a 500-acre campus. After Independence, the Punjab government passed a law which effectively acquired most of their land for redistribution.  

In 1964, Parliament passed the 17th constitutional amendment, by which this land reform law could not be challenged before the courts. But, left with only 30 acres, Inder Golak Nath did just that.  

Venugopal: A group of Punjab farmers whose land was being taken away 400 acres being reduced to 50-70- acres. And therefore, they wanted to challenge the validity of the many of the amendments to the Constitution, including the 17th Amendment. 

Venugopal: And the leader among them was a gentleman known as Inder Golak Nath. And father appeared for Inder Golak Nath and raised the question of the validity of these constitutional amendments. 

Host: This is KK Venugopal, a senior advocate and a former Attorney General for India. He is the son of Meloth Krishnan Nambyar, or MK Nambyar, the constitutional lawyer who argued Golak Nath’s case in the Supreme Court. 

By 1966, Barrister MK Nambyar, as he was popularly known in Kerala, had built a flourishing practice. In 1950, he fought India’s first major civil liberties case. His powerful arguments in that case catapulted him into the ranks of the country’s most sought-after constitutional lawyers. In the Golak Nath case, Nambyar would have to find a way to argue that the 17th constitutional amendment was bad in law. As he was preparing for the case, he came across a lecture delivered at the Banaras Hindu University. 

Venugopal: There was a German professor by name Dieter Conrad and Dieter Conrad had come to the Banaras Hindu University to give a lecture and there he propounded the theory of basic structure, that is there is something immutable. Since there is something which is foundational, foundational for a Constitution, which cannot be broken, which cannot be altered, which cannot be changed.

Host: Dieter Conrad was a professor at Heidelberg University. In February 1965 he visited India and gave a lecture where he spoke about the pitfalls of letting Parliament exercise its amending powers unchecked. At the time, in a newly independent country like India, there was an idealistic belief that a Parliament of Indians, voted in by Indians, would do right by them. But Conrad saw this as complacency, especially considering what had happened in Germany from the 1920s under the Weimar Constitution. The Weimar Constitution too envisaged a representative democracy where the people were the ultimate source of authority. Like the Indian Constitution, the Weimar Constitution could be amended as long as two-thirds of the legislature supported it. Conrad explained how this provision was overused to the point that the Constitution “lost its dignity as a code.” Eventually, Hitler misused this arrangement to legitimise his dictatorship. Conrad came up with hypothetical scenarios to drive home his point: Could Parliament abolish the Constitution itself and bring in a monarchy? These arguments were a contrast to prevailing Indian legal and political discourse that believed in Parliamentary supremacy. Nambyar found out about Conrad’s lecture through his friend, TS Rama Rao, a law professor at Madras University. He found the arguments compelling, and relevant to his case at hand, so he dashed off a letter to Conrad.  

Venugopal: Father said, can I use your article before the court, which I mean, since I’m about to argue the question of basic structure also, and Conrad said very well, but you have to acknowledge the source. And you can present my article to the court, which my father did, mentioning the fact that Dieter Conrad is a person who had written this article, but he recommended the article to the court.… and that is how I think the theory of basic structure was born. 

Host: Conrad did not use the phrase “basic structure”, in so many words. But Nambyar’s key takeaway from Conrad’s lecture was that amendments are constrained by some inherent or implied limitations. Meaning, the definition of the word amend itself suggested minor tinkering, not wholesale changes to the fundamental character of the Constitution. As Nambyar’s arguments were taking shape, other affected property owners were also gathering forces. By this time, zamindars were not the only targets of land reforms. From the mid-1950s, the government had been pushing for a greater role for itself in the industrial sector. 

Wahi: So there is a lot of focus on the government, you know, this big push into the industrial policy resolution identifies areas where the government is going to put in industries, and that this is the period when a lot of these heavy industries and things are set up, and then there is the sphere where the private sector can come in. For example, the Sholapur textile mills are the biggest textile mills in Asia, and they fail during this time, right? So, there is definitely this push against not just the landlord oppressors, but also the, you know, the “propertariat,” so it includes the industrialists and the capitalists.

Host: A number of sugar mills joined Golak Nath in challenging the 17th amendment. 

Thakore: The lands of sugar mills, which were declared to be surplus, were transferred to the tillers and that is why Godavari Sugar Mills appeared as an intervenor in the Golak Nath case.

Host: This is Sandip Thakore. A few years ago he had surgery on his tongue after being diagnosed with cancer. We spent more than two hours with him at his residence in Mumbai talking about his career. His son Anand Thakore, a Hindustani classical vocalist dubbed over his father’s voice for clarity. Thakore is now 87 years old. Along with the legal legend Fali Nariman and leading lawyer Ravinder Narain, Thakore is among the few surviving participants from the Golak Nath case. Thakore, Nariman and Narain all appeared for the Godavari Sugar Mills, one of the country’s largest sugar companies based in Maharashtra and Karnataka. Like Inder Golak Nath, the mills too stood to lose many acres of farms under the land reform laws. Which brought Thakore to Delhi for 27 days in 1966. 

Thakore: The image of 11 judges in one court, each judge bombarding questions at legal counsel appearing before them from time to time, in the Golak Nath case is fixed  in my memory forever, you know. 

Host: This was historic. It was the first time the Supreme Court had ever constituted an 11-judge bench to hear a case. Every day Chief Justice Subba Rao, a balding, clean-shaven man, entered court room number 1 and took up his seat at the centre of the bench. His colleagues followed, with five judges sitting on either side of him. They peered at the lawyers from behind the long wooden table, the national emblem of the three Ashokan Lions behind them. Nambyar was not supposed to open the arguments at first. It was a lawyer called RVS Mani. But according to Venugopal, Mani was a disruptive presence in court. So the court asked Nambyar to take over. Nambyar began by questioning what he saw as a superfluous distinction. He said there was no difference between an ordinary law and a constitutional amendment, and that they should be subject to the same tests of constitutionality. 

Venugopal : He had argued that fundamental rights can’t be amended by an amendment to the Constitution. For the simple reason that the Article 368 was only the procedure for amendment and was not a substantive power for amendment. 

Host: This is KK Venugopal, Nambyar’s son. Nambyar was arguing that Article 368 only laid out how amendments could be made. It did not grant Parliament the power to amend. Then, he rejected the government’s position that the Constitution gave amendments a special status. He said amendments were no different from ordinary laws. This meant they could be struck down if they violated fundamental rights. By extension, he was arguing that the Constitution did not give Parliament absolute power to amend the Constitution. Courts could, and should be able to review amendments. He put forth these points in his cool, dispassionate style. 

Venugopal: My father was not very aggressive at all in his arguments. In fact, very many people have told me also, that so far as his arguments were concerned they were of the persuasive class. He tried to persuade the judges, although he never raised his voice ever. 

Host: Towards the end of his arguments, he read out parts of Dieter Conrad’s lecture in Banaras Hindu University from a year earlier; the one about “implied limitations”. The idea had travelled from a visiting German professor through a Madras academic to a Malayali barrister who then brought it to the Supreme Court in Delhi. Nambyar wasn’t the only ace up the sleeve of the petitioners. There was another star in the team. Arvind Datar, a senior advocate and constitutional lawyer tells us about him:

Datar: And just to tell you that his success was phenomenal. I mean, he joined the bar and within four years, he was earning 60,000 rupees a year in those days, and he bought a fabulous flat on Marine Drive at the age of 30.  Just imagine for a 30 year old kid to buy a sea-facing flat on Marine Drive. With just say five, six years of practice.

Host: That young genius was Nani Palkhivala, a legendary lawyer who is now known as the man who defended our civil liberties. He will play a starring role in our story as it unfolds over the next decade, but in this case he only had a cameo. When arguments began in Golak Nath, he was away in Geneva, representing India in an international dispute. Palkhivala was a libertarian who strongly believed in limiting the amending power of Parliament. By a quirk of timing he had missed the opportunity to argue in the Sajjan Singh case of 1964. 

He did not want to miss another chance. Here was a new case where the very same questions had resurfaced. He flew back to India on a Sunday night on a day’s notice. He argued the next morning on behalf of a farmers’ union from Maharashtra. At 11.30am Palkhivala, in his trademark thick black spectacle frames, stood up to make his case. Thakore tells us more: 

Thakore: But the one day that he argued was so passionate. and his advocacy is so great. He said three words. The words were, the Constitution shall STAND amended so the emphasis was on the word STAND. The Constitution cannot be obliterated, abrogated. And that word stand, he emphasised quite heavily before the 11-judge bench. And who then was saying he conveyed to the 11 judges that the Parliament did not have unlimited power to amend. but there were certainly implied limitations on that power. 

Host: Palkhivala said his piece, and took a flight that night back to Geneva. The hearings concluded in December 1966 and the judges reserved their verdict. By this time, the country was gearing up for the fourth general elections. 

Host: This was a particularly bad time for the country. The 1960s had seen two wars, first against China and then against Pakistan. Then famine loomed as the monsoon failed in 1965. The food crisis intensified when the rains failed again in 1966. 

 <News Clip: Vast tracts of Indian countryside are facing the worst drought since 1899. If they lose the hand to hand battle for survival, the results could be far worse than in the Bengal famine of 1943. Host: As if these crises weren’t enough, the deaths of the first two prime ministers, Jawaharlal Nehru and Lal Bahadur Shastri one after the other created a political vacuum. Different factions of the Congress vied for the top job. Ultimately, in January 1966, Indira Gandhi was propped up as the Prime Minister by one faction led by party president K Kamaraj. As a 49-year-old woman with limited political experience, some saw her as a puppet in the hands of this faction.

Sahgal: She kept herself so much in the background that the political opposition called her Gungi Gudiya, that she was, you know, just a dumb doll. Nobody ever made a bigger mistake, as they discovered later.

Host: This is Nayantara Sahgal, the writer and political commentator. We spoke to her at her Dehradun home, in a room filled with family pictures of her uncle, Jawaharlal Nehru and her mother Vijayalakshmi Pandit.  

Sahgal is now 96 and a walking, talking archive of our political history. Back in the day, she was one of Indira Gandhi’s most vocal critics. She was also the Prime Minister’s first cousin. She saw first-hand what the Congress party and the country were soon to discover after Gandhi’s rise– her autocratic streak. The February 1967 election was the first one after her father Jawaharlal Nehru’s death. The Congress party campaigned on an anti-poverty platform. Its popularity was waning but there were few serious alternatives at the national level. Nayantara Sahgal recalls:

Sahgal: We made fun of the Swatantra party because it seemed to us very stupid in favouring America, the party backing America, which was then involved in the Vietnam War! It was outrageous, ridiculous!

Host: One of the opposition parties was the economically right-wing Swatantra Party, a band of old elites and business interests. Though Sahgal dismisses them as a joke, they had latched on to one important part of the discourse. Their manifesto opened with a reference to how the Constitution had been violated. They also warned that fundamental rights had been demoted to “a mere chapter” in the Constitution. We don’t know if this struck a chord with the voter. But the Swatantra Party went on to become the largest opposition party, winning 44 seats in the 1967 elections. Just after polling ended in mid-February 1967, came the Golak Nath judgement. 

Thakore: When the decision was announced I was in the Bombay High Court library. (29.35 to 29.40) We got telex messages. In those days there were no mobile phones. We got a message saying by a very thin majority of six- five we had succeeded in the Golak Nath bench… So yes. I was more than excited. 

Host: Constitutional scholar and lawyer Gautam Bhatia explains the decision:

Bhatia: In Golak Nath for the first time by a six-five majority, a 11-judge bench, the Supreme Court held that constitutional amendments are subject to judicial review. And in Golak Nath the court majority held that a constitutional amendment is the same as an ordinary law within the meaning of Article 13. 

Host: This was a dramatic reversal of its own views. The court now said that Parliament was incompetent to amend the fundamental rights which (to quote the judgement) “were given a place of permanence.” Constitutional amendments were subject to the same conditions and tests as an ordinary law, that is they could be struck down if they violated fundamental rights. However, the bench stayed away from accepting Nambyar and Palkhivala’s broader arguments that there were “implied limitations” on Parliament’s power to make amendments. They simply said that the question wouldn’t arise unless Parliament tried to destroy other core features of the Constitution. Meaning, at this juncture, the court was only asked to answer a limited point: could Parliament amend fundamental rights? Its answer was no. 

Crucially, however, the court did not strike down the constitutional amendments that were being challenged in this case.  

Thakore: The amendment had been acted upon and would create a great deal of chaos. Therefore they invoked the doctrine of prospective overruling. So the past could be saved and in the future there was a ban on amending fundamental rights. 

Host: It meant the judgement would only apply to future cases where fundamental rights were violated by amendments; Inder Golak Nath, Godavari Sugar Mills and the other parties would lose their property. This was no doubt a blow to the petitioners. But it was a bigger blow to Parliament, which was about to begin its fourth term. 

<news clip of 1967 campaign results> New Delhi and victory for the Congress party in the general election Morarji Desai decided not to oppose Mrs Gandhi as Prime Minister… Mrs Gandhi realises that only by resolute governance can India solve the problem of an enormous population beset by widespread famine.

Host: Indira Gandhi took oath in a simple white sari, a streak of silver running through her jet-black hair. Gandhi won her seat of Rae Bareilly in Uttar Pradesh with a comfortable majority. But the 1967 election was a blow to the Congress party’s political hegemony. It was badly defeated in eight states including Uttar Pradesh, Bihar, Kerala and West Bengal. Indira Gandhi was convinced that her party had to reinvent itself to avoid slipping further.  

Sahgal: She had extreme contempt for the party. The party was not doing anything according to her. It was just stuck in the, in the mud, you know, and she intended to move it, you know, get it going. And she did. Her method was very different from her father’s. She always said so. She said, “My father was a saint, I’m a politician.”

Host: She proposed an ambitious reform agenda. In June 1967 Gandhi pushed her party to adopt a 10-point programme. It proposed the public control of banks, abolishing privileges of former princely state rulers, and nationalising the general insurance sector. Many of her colleagues were sceptical – some of her, and others of these sweeping, populist policies. With support from her party uncertain, she did what was once unthinkable. On July 19, 1969, she got President VV Giri to issue an ordinance. An ordinance is a law made by the government without Parliament’s approval. This ordinance allowed the government to take control of 14 private banks with deposits worth Rs. 50 Crore. Sahgal explains:

Sahgal: When she passed it by ordinance because she wouldn’t have been able to pass it otherwise, perhaps not get it through Parliament. She wanted to get on. And her views on it, which were highly praised in countries like France and others, were that the government should have some authority over banks. And she got justification and approval by having groups of or I should say crowds coming to congratulate her… these crowds came and she would come out and speak to them and form a sort of personal relationship with the crowd. And she was clearly functioning in her own way, not as anybody had before… 

Host: The country was electrified by the Prime Minister’s bold vision, her decisive policies and her resolve to act. But soon enough, a few bankers, led by one RC Cooper, dragged the government to court. Nani Palkhivala argued for some of them. 

News clip: As we go in to record, reports have come to say that the Supreme Court has struck down the bank nationalisation act by a 10 to 1 majority.

Host: The court said it violated the bankers’ fundamental rights to property and equality. But Indira Gandhi was unfazed by the verdict; rather the wave of public support kept her going.  Next, she gunned for India’s old elite.

News clip: the princes were allowed to retain certain privileges such as their titles, multi-gun salutes and duty free scotch. They also get a substantial state pension, a matter of increasing annoyance and agitation in the Congress party. 

Host: The rulers of the princely states secured these perks as compensation for joining the new Indian union after the British left in 1947. These financial allowances were written into the Constitution under Article 291. Indira Gandhi declared war on these privileges, saying that they were vestiges of a feudal past. In 1970, a constitutional amendment revoking these privileges failed to pass in the Rajya Sabha. Miffed, the Prime Minister once again turned to the President. She advised him to issue an ordinance to withdraw the privileges. 

The princes hardly enjoyed public sympathy. But Gandhi’s move was seen as a breach of constitutional and political propriety. Sahgal again:

Sahgal: She moved that policy and it was I myself, I remember opposing it or feeling very upset about it, because I remembered my uncle saying that the government had approved of the Privy Purses, and a government never breaks its word. And it was Nehru’s words that’s stuck in my mind… she was determined to do away with them.

Host: Appalled, the former rulers approached the court to challenge what they saw as a betrayal by the Indian state. In 1970, for a second time, MK Nambyar and Nani Palkhivala came together to argue against the government. This time again, the court said the policy violated the former rulers’ fundamental right to property. Namita Wahi explains:

Wahi: The court’s reasoning in the privy purses case. It did hold the privy purses to be  property. It narrated this entire history of how this, you know, integration happened. But their main concern was that you can’t, by an executive order, take away something which is there in the Constitution. 

Host: In December 1970, Indira Gandhi was seething. In the span of just 11 months, the court had struck down two major policies of her government. This came close on the heels of the court’s ruling in Golak Nath, which placed severe limits on Parliament’s power to amend the Constitution. By this point, Indira Gandhi had been expelled from the Congress over differences on the bank nationalisation policy among other things. Since 1969, she had been running a minority government with support from the communist parties and regional parties from the south. This meant that she did not have sufficient numbers in Parliament to pass amendments to overcome the negative court rulings. Having run out of options, she once again turned to the people. Eleven days after the Privy Purses judgement, with more than a year left for her term to end, Indira Gandhi called for elections. 

Clip: Iske kaaran batate hue Smt Indira Gandhi ne kaha: Jeevan mein ek aisa samay aata hai jab ki sarkar ko desh ke samasyaon ko samadhaan dene ke liye ghair mamooli kadam uthane padte hain…Prajatantra ki sansadiya pranali mein yeh asadharan baat nahi hai. Lekin hamare desh mein aisa pehli baar hi hua hai. Praja tantra mein satta janta ke haath mein hoti hai. 

Host: Gandhi hit the campaign trail, all guns blazing. She embraced a hardcore socialist platform with one catchy message: garibi hatao. Remove Poverty. She openly talked about amending the Constitution to achieve her goals and the country’s goals of ending poverty once and for all. She also spoke of a “committed judiciary,” meaning a judiciary that subscribed to her ideas. The opposition parties formed a “Grand Alliance” to unseat Indira Gandhi. They led with the slogan: Indira Hatao. 

Clip: Interviewer: And the platform was whether poverty would be removed or inequalities continued.. Indira Gandhi: All our planning aimed at the removal of poverty and the lessening of economic disparities. But we felt that the Congress had somewhat strayed from that path and we wanted to bring it back. Interviewer: But I don’t think anyone understood.. Gandhi: But basically, the propaganda of the opposition was merely to remove me. And this is how our young people thought up that slogan: what is more important? Is it more important to remove Indira or to remove poverty? 

Host: In March 1971, in a stunning landslide, the Congress party won 352 seats in the Lok Sabha.

Clip: Well I can only say that I feel (voice breaks).. One feels exceedingly humble when we see the faith and trust of the people . Because there’s no doubt that this faith increases the responsibility. The responsibility is always there but with this kind of a mandate one feels all the more urged to  do something quickly. 

Host: Indira Gandhi had one main takeaway from the verdict: the country loved her decisive leadership. Shortly after the results were announced, a resolute Indira Gandhi hinted to the press that her government could amend the Constitution to dilute the fundamental right to property. This was a bold new direction. Didn’t the Golak Nath ruling stop Parliament from amending the fundamental rights? So how was Indira Gandhi planning to achieve this? We find out in the next episode of Friend of the Court. Until then, I am your host, Raghu Karnad.