Anil Divan Foundation

Dialogue from Zanjeer (1:29:13 to 1:30:02):

Vijay: Buzdilon ki tarah main peeche se hamla nahi karta Teja. Main tumhe batane aaya hoon ki main tumhe khatam kar dunga. 

Teja: Kar do, intezaar kis baat ka hai. Main tumhare saamne hoon. 

Vijay: Itni asani se nahi Teja. Tumhare wajah se maine 6 mahine jail mein kaate hain. Wahan har din, har pal maine tumhe yaad kiya. Ab tumhe 6 mahine tak tumhe har pal, har ghadi mera khatra mehsoos hoga. Aur phir…

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Host: That was a scene from the Hindi blockbuster, Zanjeer. Amitabh Bachchan played Vijay Khanna, the upright cop-turned-vigilante traumatised by his parents’ killing. Zanjeer released in May 1973 and one of Hindi cinema’s most iconic figures, the angry young man was born. Over the next decade, Bachchan cemented his stardom by reprising the role in Deewar, Trishul and Coolie. 

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The angry young man was a product of his time. He channelled the angst and desperation that marked Indians’ lives in the 1970s. Gone was the optimism of the early days of Indira Gandhi’s rule and the jubilation over the Bangladesh war. Garibi Hatao had proved to be an empty promise as the country faced deepening economic distress. 

Indira Gandhi argued that the solution to these woes lay in shifting the economy to a socialist pattern. This included public control of key industries. She thought her government had removed the legal obstacles to implementing these policies with the 24th and 25th amendments. But those amendments, as we know, had led to arguably the most important constitutional challenge in independent India’s history. 

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Welcome back to Friend of the Court, I am Raghu Karnad. This season, we are exploring India’s most important court case: Kesavananda Bharati v State of Kerala. So far, we have looked at the build up to the case and the arguments on both sides. In this episode, we finally turn the spotlight on the verdict.  

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Host: After 66 days of arguments, the Kesavananda hearings ended on March 23, 1973. The bench had a month to decide on how they would rule.

 

Andhyarujina: Now normally when you have a case like that, before the judgments are delivered, all the judges meet in conference to decide. Sometimes the Chief Justice says you Mr. Judge will write the judgement. Somebody says I will write the dissent. All in a very pleasant way in which they decide. But here because of the tension amongst the judges, they only called this conference of those like-minded judges with Sikri. No conference was held. 

 

Host: This is TR Andhyarujina, one of the government’s lawyers. As he tells us, the mood on the bench was strained. One member, Justice Jaganmohan Reddy, later claimed in his memoir that Chief Justice Sikri did not convene all 13 judges even once to discuss the colossal questions at stake. In the weeks after the hearings concluded, Sikri met with seven other judges, pointedly leaving out Justices Beg, Mathew, Ray, Dwivedi and Palekar. It was presumed these five would rule in favour of the government. Beg and Dwivedi were thought to be Indira Gandhi’s appointees to the court. Ray had twice ruled in her government’s favour in major cases. Sikri later told the Press Trust of India that he had consulted only a few judges because he wanted to “stabilise the case” and “diminish the number of judgements.”

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There were rumours that the government had already seen some of the opinions. Two judges on the bench later told constitutional historian Granville Austin that they suspected Justices Beg and Dwivedi were leaking information to the government. The incumbent, Justice Sikri, was set to retire one day after the judgement was to be pronounced. And the government hadn’t announced the appointment of his successor. Convention dictated that the next most-senior judge would succeed him. That would have been Justice JM Shelat, 64 years old, elevated to the Supreme Court in 1966. The government seemed to be dilly-dallying on announcing his name – perhaps waiting to see how the bench decided.

In Bombay, the petitioners’ camp too, was busy speculating on which way it would go. Nani Palkhivala, the lead counsel, expected nine judges to rule in their favour. But he wasn’t confident. In the days leading up to the judgement, Palkhivala was reportedly a bundle of nerves. The future of Indian democracy rested on this judgement. 

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[BEAT]

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Host: On 24th April 1973, the bench assembled in court room number 1 to deliver the verdict. 

 

Andhyarujina: So this bench sat in court. All 13 judges. Lots of tension. 10 judgements were issued by 10 judges out of 13. How do you get the real, what we lawyers call the ratio of this judgement? 

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Host: It was actually 11 opinions, not 10. The proceedings started with Sikri reading out his opinion. He was followed by Justice Shelat who read the joint opinion he wrote for himself and Justice Grover. Then Justice Hegde read out the opinion he had written for himself and Justice Mukerjea. He was followed by Justice Ray. Justice Reddy was next. As he read, Justice Palekar seated beside him kept passing him notes complimenting him on his prose. Then Palekar, Khanna, Mathew, Beg, Dwivedi and Chandrachud each read out their individual opinions. Sikri’s hopes of trimming the judgement were dashed that morning. The 11 opinions added up to 502 pages. It was the longest judgement ever handed down by the Supreme Court of India at the time. 

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But its length was not the biggest concern. No one immediately understood what it said. It was a maze of confusing pronouncements. Sikri saw a way out. 

 

Andhyarujina: Sikri played a great strategy or a trick. All the judges had their judgements. He brought out a piece of paper, on that he says “the view of the majority”. 

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He passed on the paper for signature. Sikri, Shelat, Hegde, and six judges signed this paper. Four of those led by Ray, Mathew, Beg, and Dwivedi passed on the paper like that, we don't sign it. 

Nine judges signed, four refused so it was doubtful if there was a ratio. That was how Sikri managed it. Some said it was a trickery by Sikri. 

 

Host: Normally, it is easy to decipher how judges have ruled, based on their written opinions. No bench has ever felt a need to issue a separate statement specifying the ratio of the judgement either before or after the Kesavananda Bharati case. Lawyer and constitutional scholar, Gautam Bhatia: 

 

Bhatia: And I think that it responded to a very unusual situation: the highest strength ever, there were 13 judges effectively creating new doctrine, right? And of course, you had a strong executive, an executive that brooks no dissent. So I think if you look at all these things, it was a pretty unique situation as well, that perhaps triggered a very unique response from the court. 

Host: So what did the “view by the majority” statement say? It outlined what the majority had held in six crisp bullet points: It clarified that the Golak Nath verdict was overruled; and that the 24th, 29th and most provisions of the 25th amendments were valid. So far this seemed to be in favour of the government. 

 

[BEAT]

 

But the document also said that Article 31C was partially invalid. That was the article that downgraded certain fundamental rights in favour of directive principles. It also took away the court’s power to review amendments. The court had struck down this second part. 

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Finally, it made a decision about Article 368. It said Parliament did not have the power to alter the basic structure of the Constitution. But what that meant wasn’t immediately clear.

Overall, it seemed like the government had won. Senior Advocate Arvind Datar sums up: 

 

Datar: So by and large, the Supreme Court upheld the powers of Parliament to amend and it says you can amend it, you can change it. They said, you can take away, you can amend part three, they approved the overruling of Golak Nath, they said all the land reform laws is perfectly valid. All those things they upheld, all the amendments were held to be valid. And they said directive principles are very important. They emphasised that. So ultimately, what they said was, yes, you can amend, but you can't amend the basic structure. 

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Host: And what about Kesavananda Bharati, the monk who would be later hailed as the man who saved the Constitution? With land reforms deemed valid, he gained nothing. 

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Datar: For the individual petitioners, there's no relief, because all they have whatever was taken away was taken away. So it was a big exercise for the public. But individual petitioners didn't succeed.

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Host: A close reading of the judgements suggested that the bench was divided 7 to 6. But the reasoning behind the majority opinion was not clear. Let’s break down how the bench ruled on three important questions. First, on the issue of Parliament’s power to amend the Constitution. Six judges held that there were implied limitations on this power. They included Sikri, Shelat, Grover, Hegde, Mukerjea and Reddy. Let’s call them the Sikri group. Six others held that there were no limits. They included Ray, Beg, Dwivedi, Matthew, Palekar and Chandrachud. Let’s call this the Ray group. 

One person stood out from both: Justice HR Khanna, a soft-spoken, poetry-loving man who started his judicial career as a district court judge. Khanna said that there were no implied limitations on Parliament’s amending power. But he added a crucial caveat: Parliament could not change or destroy the basic structure. Lawrence Liang, professor of law at Ambedkar University Delhi, explains:

 

Liang: His understanding turned crucially on the word amendment. What exactly does the word amend mean? Does amendment mean abrogation? 

 

Host: In other words, Khanna was asking the vexed question—

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Liang: Does amendment mean authorship of a new Constitution? And so he took the ground that amendment is a very particular power, it's limited. It's limited, because it is subservient to the presumption that there is a Constitution that already exists. So you can't bring a new Constitution, right? You're not a Constituent Assembly. If you're a Constituent Assembly, no problem, you can legitimately bring a new Constitution. But if you are only a Parliament, but Parliament has been given unlimited powers to amend then what happens? So Khanna arrives in that sense at that elegant solution, which is that you can amend the Constitution, subject to not altering the basic structure.

 

Host: That was the key takeaway from the judgement: that Parliament had expansive powers of amendment, but could not alter the basic design of the Constitution. [beat] The next  important question the judgement decided was: could Parliament amend the fundamental rights? Here the Sikri group said that Parliament could amend, but not delete them. The Ray group said that Parliament could amend the fundamental rights even if it meant deleting them. Khanna, once again, fell somewhere in between. He said that fundamental rights could be amended and even deleted — as long as such amendments did not alter the basic structure. 

 

Liang: In Deewar there's this famous dialogue where Amitabh Bachchan and Shashi Kapoor confront each other on the bridge that serves as a reminder of their childhood. And the first question that Amitabh Bachchan asks Shashi Kapoor, which is Vijay asking Ravi. Before I speak to you, I need to know who I'm speaking to. Am I speaking to a brother or am I speaking to a police inspector? To which he answers as long as a brother is speaking, a brother will hear. The moment a criminal starts speaking, a police inspector will start hearing. 

 

Host: In the Deewar analogy, Justice Khanna is the upright Shashi Kapoor: both the younger brother and the cop. It just depended on how you were looking at him. Khanna stayed true to form on the third important question as well: was Article 31C valid? The Ray group saw nothing wrong with it. While most of the Sikri group held that it was invalid. Khanna once again complicated the picture. On the one hand, he said that certain fundamental rights were inferior to the collective good. He singled out the right to property to say that it was not part of the basic structure. But he struck down parts of Article 31C that removed judicial review. He said it was beyond Parliament’s scope to amend.

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Liang: Judicial Review is so central in the imagination of what judicial function of courts in a democracy are that courts have zealously guarded against any encroachment on their powers of Judicial Review. In this case, the courts said that Art 31C effectively takes away the power of JR and that is beyond the purview of Parliament’s power. Because of the doctrine of separation of powers. If the power of Parliament is to make laws, the power of the judiciary is to examine the validity of these laws on constitutional grounds and on constitutional principles.

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[BEAT]

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Host: Palkhivala had expected nine judges to rule in his favour. The final count was seven, for, and six against. The greater drama in Justice Khanna’s career still lay some ways down the road, but he’d made his mark on history by casting the tie-breaking vote in this case. His son, Rajiv Khanna, a businessman in Chennai, saw in his father’s judgement, a reflection of the man he had always known. He spoke to us about his father’s views and values. 

 

Rajiv Khanna: He recognised that with great power came great responsibility. He used to also say as well as for the Kesavananda Bharati case. And otherwise, he used to say that the moderates have a great role and were the lubricants of the society. And therefore, very often, he would try to find the middle path. 

Host: In the days and weeks that followed, the finer aspects of the opinions began to sink in. In Bombay, the lawyers for the petitioners huddled in a meeting. Nani Palkhivala along with CK Daphtary, Anil Divan, Sandip Thakore and the young article clerk Yazdi Dandiwala were all present. Dandiwala tells us more:

 

Dandiwala: So in that meeting, certainly there was some disappointment about the overall outcome. At the same time, there was a feeling of relief that at least the basic thing has been preserved and protected. And to set aside or overcome this judgement is not going to be easy because to have again, another bench of a larger number and all is not going to be so easy. So at least that assessment was made that this protection is now there. It ought to have been more, but okay. 

 

Host: Though disappointed by the wafer-thin majority, Palkhivala took some hope from the judgement. Later that year he wrote, and I quote, that “something precious has been salvaged out of the government's claim to have the power to wreck the Constitution.” [beat] The government’s lead counsel was more critical. HM Seervai denounced the judgement as “clearly incorrect.” Seervai believed Khanna had been wrongly included in the majority. He focused on the fact that Khanna said that Parliament had power to delete fundamental rights, specifically the fundamental right to property. This, he argued, meant that Khanna agreed with the Ray group. By Seervai’s logic, it was actually a 7-6 majority in favour of the government. 

In September that year, law minister HR Gokhale went on to call the judgement vague and suggested that the Supreme Court sit again to clear up the confusion it had created. The overall feeling was that there was no unanimity about what fell within the basic structure. Each of the majority opinions offered its own version. Gautam Bhatia explains: 

 

Bhatia: It held that there was a basic structure, and that could not be damaged or destroyed. And the basic structure effectively had certain features, you know, separation of powers, judicial review, the federal structure, certain, you know, principles such as equality or the rule of law, but the majority did not define exhaustively basic features. 

Host: Chief Justice Sikri said it included five things: the supremacy of the Constitution, federalism, secularism, republican and democratic form of government, and the separation of powers. In their opinion, Shelat and Grover added the fundamental rights and the unity and integrity of the country to Sikri’s list. They said it was not possible to list out all the features. Instead, they offered a rule of thumb: elements of the basic structure could be derived from the spirit of the Constitution. 

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Shelat and Grover’s opinion said it was important to look beyond the land reforms and property rights that triggered this case. They asked a bigger question: could a Parliament with unlimited power abuse fundamental rights other than the right to property? Sudhir Krishnaswamy, Vice Chancellor of NLS Bangalore, has written a comprehensive analysis of the judgement. In a public lecture at the Bangalore International Centre in 2021, he spoke about Shelat and Grover’s opinion:

 

Krishnaswamy: There can be extreme cases in political democracies where partial and temporary majorities run through a Constitution, you know, and they just get rid of a Constitution and in Shelat and Grover, what's interesting is that what is that image, the image is of the failure of the Weimar Republic, and the emergence of fascism in 1930s Germany. 

 

Host: Krishnaswamy is referring to the overuse of the emergency and amendment provisions of the Weimar Constitution that ultimately paved the way for Nazi rule. 

Krishnaswamy: So it's very clear what that opinion threatens and warns future citizens about is that what we need to craft here is not a doctrine that threatens land reform. What we need to craft here is a doctrine that prevents an authoritarian slide.

 

Host: The government’s immediate reaction was cautious. Gandhi herself was silent. The day after the judgement, headlines claimed that the ministers Gokhale and Kumaramangalam had “hailed” the decision. But Gokhale expressed some disappointment that parts of 31C had been struck down. It soon became clear that the government did not like the way the court had ruled, something that became crystal clear within 24 hours. The four senior-most judges had ruled with the majority in favour of the basic structure. Along with Chief Justice Sikri, these were Justices Shelat, Hegde and Grover. Justice Santosh Hegde, now a retired Supreme court judge, and the son of Justice KS Hegde was a young lawyer at the time. He happened to be in Delhi on April 25, the day after the judgement. 

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Hegde: Around 5.45, 6 o clock, my dad came home. There was nothing we could see, whether his apprehensions that something was going to happen or whether he was in a bad mood he wouldn't be the Chief Justice of India. We didn't see any such thing. He had gone in to change his dress in his bedroom. There was one TV in the whole house, unlike today. My brother, a naval officer was watching the TV. He came suddenly running and told my dad, dad you and two others have been superseded. 

 

Host: Meaning, the three senior judges were passed over for a junior judge. 

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Hegde: That is the TV news. He didn't get angry or collapse or shivering or any such thing. I didn't see. By the time I also had gone, because the way my brother was saying, I saw what’s happening? I also went into the room to see what was happening. He took it calmly. He didn't discuss it with my mother or with us or anything. He coolly went to the phone and spoke to Justice Grover and Justice Shelat. Came back, sat at his table and hand wrote his resignation to the President and was making arrangements to send it to the President. He didn't even wait for a minute after he came to know. He had made up his mind. Maybe he had his apprehension, maybe he knew. But he never gave expression. 

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Host: Sikri was probably relaxed. He went out golfing on his last day. So he, like everyone else, was shocked to hear the 5pm bulletin on AIR that the three judges next in line to succeed him had all been superseded. After all, as convention dictated, Justice Shelat, the next senior-most judge, should have succeeded Sikri. The four men convened together at Shelat’s house. Sikri, who was retiring anyway, decided to resign with them in protest. 

 

News clip: Mr Ray is the new Chief Justice of India. Mr Ray superseded three other judges of the Supreme court. The Constitution leaves the choice of Chief Justice to the president under advice of the council of ministers. Mr Ray started his legal career in Calcutta… 

 

Host: That clip is from a black-and-white Films Division newsreel. In it you can see Justice Ray standing beside President VV Giri inside Rashtrapati Bhavan. He is in his black judges’ gown and thick round glasses, reading out the oath of office. The camera pans to the audience clapping politely. But outside Rashtrapati Bhavan there was an outcry. Protests broke out immediately. Santosh Hegde was travelling with his father, Justice KS Hegde, back to Bangalore. He recalls: 

 

Hegde: One thing I remember is that it became an all-India issue. Every station where the train stopped, a few hundred people or 50 or 10 people, would come to every station and shout slogans against the government and slogans hailing the superseded judges. 

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Host: Lawyers, too, held gatherings in protest. Seven thousand lawyers in Bombay and three thousand lawyers of the Madras Bar boycotted work after the supersession announcement. Senior advocate AK Ganguli was present at one such gathering. 

 

Ganguli: There was a huge meeting of members of the bar. Not just the Supreme Court bar, a lot of lawyers including Mr Palkhivala came from Bombay. Big convention was organised. Lawyers at the convention hall of the Ashoka Hotel. Great speakers like CK Daphtary, the former Attorney General, Mr. Palkhivala and many others, many leaders, they were part of it. In fact, you will be surprised that I was one of the speakers as a student representative… I still remember the words spoken by Mr Daphtary. Daphtary said in that meeting: “There was an essay competition. The student who wrote the best essay got the prize.” You got it?

 

Host: That remark from the former Attorney General CK Daphtary is now part of legal folklore. The references can be easily decoded. The “student” was Justice AN Ray, who got the “prize” of promotion by writing an “essay”, or the judgement in favour of the government. Through this promotion the government was effectively signalling, if you rule against us, there will be consequences. The supersession broke established convention. It was the first time that a senior judge had been passed over for political reasons. The government defended itself saying it was following the recommendations of the 1958 Law Commission report, which had suggested that seniority need not be the only criterion while appointing the Chief Justice. A candidate’s administrative ability also has to be taken into account. For 15 years, the government did not act on these suggestions and Chief Justices were still appointed by seniority. Now, one day after the court restricted Parliament’s powers, the report was suddenly relevant. Steel minister Mohan Kumaramangalam, one of Indira Gandhi’s closest advisors, pointedly talked about the social philosophy of judges; that they needed to be “forward-looking”, that they needed to heed the “winds of change”. Arvind Datar explains why the government was hurting after the April 24 ruling. 

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Datar: They saw it as a defeat in the sense that they wanted Parliament's power to be unchecked, they said, who's anybody to tell us what we can do? Because this absurd and foolish view which continues to today is, we represent the will of the people. When we get to Parliament, we are representing the will of the people and who are these judges? The judges, they are unelected people. 

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Host: A ruckus erupted in Parliament. The fiery socialist leader Madhu Limaye initiated a seven-hour debate in the Lok Sabha. He accused the government of ousting independent-minded judges. He was interrupted and shouted down by Congress MPs. Kumaramangalam shot back that the government had the discretion to appoint judges it considered had the “most suitable philosophy or outlook”. Each of the superseded judges themselves gave press conferences in which they aired their woes. Sikri remarked that the supersession appeared to be “political” and a fall-out of the Kesavananda Bharati ruling. Nonetheless, AN Ray was now the Chief Justice of India. Indira Gandhi had had her way. 

[BEAT]

Host: Typically, we would end the story of a court case here; with the judgement and the response of both parties. But our story doesn’t end here. The basic structure doctrine was born; but its survival wasn’t guaranteed. Its exact meaning was still a puzzle and could only be clarified through future cases. Liang tells us:

 

Liang: There is actually in a way a kind of a vacuum that the basic structure doctrine is in until it is examined for the first time. The basic structure doctrine didn't have to do anything. What does it actually mean? It didn't matter, you could have had an academic discussion on what it meant. You will have people writing in law review articles on what the scope is. But its first practical application only arises in the context of an actual litigation, which raises the basic structure doctrine as an argument. 

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Host: For two years after the supersession, there was a lull in the conflict between the court and the government. During this period, resentment against Indira Gandhi grew as public anger simmered over inflation and unemployment.

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Ajoy Bose: 1973 was the year when the Gujarat Navnirman movement started. You didn't feel much in Delhi, but certainly one was reading reports about those mass agitations; then it took off in Bihar. 

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Host: This is senior journalist Ajoy Bose. Back in the early 1970s, he was a crime reporter for Patriot, a left-wing newspaper. 

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Ajoy Bose: And in Bihar, it was also very active. Opposition was getting very restless. And there were all kinds of rumours that even within the Congress, people were upset with Indira Gandhi because her son, Sanjay Gandhi was getting more and more powerful.

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Host: Jayaprakash Narayan, popularly known as JP, a 72-year-old Gandhian-Socialist from Bihar. He became the face of the movement. Nayantara Sahgal, the writer and Indira Gandhi’s cousin, recalls the Prime Minister’s response. 

Nayantara Sahgal: She believed that there was rising chaos in the country. And partly, I think because JP had come up and proved to be such a popular leader among the younger amongst many other people. And she didn't just believe it, that was happening… 

 

Host: Indira Gandhi dismissed the protests as a “sinister conspiracy” that was at work against her government, and her life. 

Sahgal: She was just not wanting to be removed, and they were using methods outside parliament

Gandhi voiceover: There has been a campaign of calumny against me personally… 

News: Mrs Gandhi replied that such demonstrations were part of a deliberate campaign by extremists to reduce India's political life to chaos and so make the country ungovernable. It wasn't herself or the Congress party who were undemocratic, she said, but irresponsible opposition elements who chose direct action rather than constitutional methods to air their grievances. 

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Host: Things were only going to get worse for her. On June 12, 1975, the Allahabad High Court delivered the biggest blow.   

 

Shanti Bhushan: I was at the time Taj hotel in Bombay. Just a couple of minutes after 10 o clock. I got a call from Delhi, from my brother Vijaykumar who informed me that he had heard on All India Radio that the High Court had set aside Mrs Gandhi’s election and had also disqualified her..

 

Host: As senior advocate Shanti Bhushan describes in this old interview. The Allahabad High Court said Gandhi’s 1971 election from Rae Bareilly was invalid. The judgement was in response to a case filed by a maverick opposition leader called Raj Narain. Narain had contested against her in the Rae Bareilly seat and lost. Suspecting foul play, he had challenged her victory. The case had been pending for several years, but was not seen as a serious threat to the prime minister. Now, four years later, the high court found Gandhi guilty of two corrupt practices under election laws. It said she had taken the help of government officials as election agents and used government machinery to set up her campaign stage, loudspeakers and other paraphernalia. They were minor offences, presumably common across campaigns. But they legally amounted to electoral malpractice and the high court declared her election void. This meant she would not be allowed to hold any public office for the next six years. 

 

Prashant Bhushan: After that, of course, the appeal was filed in the Supreme Court by Mrs. Gandhi and she asked for stay of the High Court judgement. That stay hearing went on in the Supreme Court, I think it was on the 24th of June, the whole day where Mr. Palkhivala appeared for Mrs. Gandhi and my father was for Raj Narain. 

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Host: This is Prashant Bhushan, the advocate and son of Shanti Bhushan. And yes, he is talking of the very same Nani Palkhivala, the man who was so vocally against Gandhi’s policies. Palkhivala took her brief because he believed the judgement against her was not sound. On 24th June, he managed to win Gandhi a partial stay. A five-judge bench would give the final verdict later. But for now, the partial stay meant that Indira Gandhi could remain Prime Minister and continue to attend Parliament. But she would not be able to participate in the proceedings.

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Bhushan: The opposition parties were of course very very excited and they felt that she would have to go and they immediately launched a campaign saying that she must resign after this judgement. Especially after the stay hearings in the Supreme Court when Justice Krishna Iyer gave only a partial stay, allowing her to sort of go and sign the register but not participate in Parliament proceedings. So the opposition said that we cannot allow, we cannot have a crippled Prime Minister in Parliament and therefore she should resign. And the next day on the 25th there was a huge rally at the Boat Club lawns at India Gate where Jayaprakash Narayan and all the opposition leaders participated.  

Host: They led with one striking slogan:

Poem: Singhasan khali karo 

 

Host: Hours later on that hot summer night, the President of India signed the Emergency declaration. Even Indira Gandhi’s cabinet of ministers did not know she was about to take this step. Gandhi informed the nation the next morning. 

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News clip in Gandhi’s voice (in Hindi): The president has proclaimed emergency. This is nothing to panic about.  

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Host: Typically, during an Emergency, the normal functioning of the government is suspended. Fundamental freedoms such as the right to free speech and movement are in abeyance. The Emergency declared by Indira Gandhi went much further.

The President issued an order suspending fundamental rights to equality, life and liberty. Indira Gandhi told the country that these  steps were necessary to rein in the unruly elements that had taken over Indian public life. Opposition leaders including Jayaprakash Narayan, Morarji Desai, Atal Bihari Vajpayee, LK Advani, Raj Narain and others were detained. Press censorship kicked in immediately.  

 

Clip of Kuldip Nayar: Usne Constitution suspend kar diya aur direct raj karne lagi. Aapko pata hai, uss waqt 1 lakh aadmi detain hue the without trial. Dusra, press censorship. Aap kuch likh nahi sakte the. Agar likhna chahte ho toh censor se dikhao ke kya hai. Main express mein likhta tha toh hamne usse run kiya tha bilkul blank editorial taaki ek protest ki tarah padhein. Kyunki censorship ki tayyari nahi thi, unhone ye Bahadur Shah Zafar marg jahan pe sabse zyada daftar hain, usme se unhone bijli kaat di. Ab Mrs. Gandhi ka remark tha, jab emergency lag gayi toh dusre din usne ek remark diya ki not a dog has barked.   

 

Host: Indira Gandhi had censored the press and subdued the political opposition but the legal threat to her position remained. Her election case was still due for final hearing. By this time, troubled by her decision to impose an emergency, Palkhivala had returned her brief. 

 

Bhushan: Before her appeal was heard, there was a constitutional amendment which was passed, which essentially declared that the Prime Minister's election can never be challenged. And it was a constitutional amendment which was designed to protect her own election. 

 

Host: This is Prashant Bhushan again. He is referring to the 39th amendment. It inserted a new clause in the Constitution which stated that the election of the Prime Minister could not be reviewed by the court. The amendment was passed on 10th August, just in time for the Supreme Court hearing. In the shadow of the emergency, in the country’s most fraught political case, one question emerged: did the 39th amendment violate the basic structure?

 

Shanti Bhushan, who argued that petition, passed away earlier this year. Prashant Bhushan attended the hearings as they unfolded between August and October 1975. At the time, he was an undergraduate studying philosophy at Allahabad University, with no particular interest in the law. But he was living through turbulent times, and these cases he watched first-hand suddenly made the law seem “interesting”. He took detailed notes and later wrote a book on the case. He tells us more. 

 

Bhushan: See, this was the emergency and you had to get passes made. Otherwise, Supreme Court was an open court. But during the emergency and especially for this case, entry was restricted to only people who had passes. I used to sit in the visitors’ gallery. But unfortunately, because of the emergency and press censorship, the proceedings were not being reported in the press. 

 

Host: The matter went before a five-judge bench headed by the Chief Justice of India AN Ray. The other four judges had also been on the Kesavananda Bharati bench: Justices Mathew, Beg, Khanna and Chandrachud. Arguments began on August 25, 1975. Shanti Bhushan first addressed the bench. 

 

Bhushan: And my father's arguments against this 39th Amendment were that it clearly violates democracy, destroys democracy. If you make the Prime Minister's election beyond challenge, it violates democracy, it violates equality, it violates the rule of law, which he said were part of the basic structure. 

Host: This was the first occasion to make a tangible case for what the basic structure stood for. Shanti Bhushan made a memorable, and compelling argument. Here he is recounting it in an interview to The Quint:

 

Shanti Bhushan: I said look at my junior, JP Goyal. supposing he was carried to an operation theatre and the surgeon was told to transplant all those organs everything except his left thumb every other every part of the body would be transplanted some other persons part would be placed so when he is being wheeled out of the operation theatre and his wife is put this question do you recognize him as your husband and she will look at him and she'll say oh no he's not my husband and the surgeons would say no no look at his left thumb she will say no no so I said since the various organs which have been transplanted changes identity he becomes a different person that's the theory of basic structure.

 

Host: This was the classic Ship of Theseus thought experiment. If you replace all the parts of a ship with new ones, is it still the same ship? 

 

Bhushan: If you change those who vital parts of the Constitution which give it a particular identity; secularism, democracy, if you change and say it will be now we are amending the Constitution, the prime ministership will go by heredity and Prime Minister will become the dictator no majority of the parliament etc will bind there won't be any Parliament etc only a president will be there who will be Mrs Gandhi and her successors so this change could be made but then is the Constitution is still the same? 

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Clip: The supreme court has upheld the election of PM Indira Gandhi setting aside the judgement of the Allahabad High Court. 

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Host: On November 7, the Supreme Court overturned the high court order and said that Indira Gandhi was not guilty of electoral malpractice. Gandhi would stay on as Prime Minister. 

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Clip: Welcoming the judgement, cheering crowds reiterated their faith in Mrs, Indira Gandhi. Thanking the people for their support, the prime minister called upon them to channel the discipline brought about by the emergency into constructive activities. And fight the social and economic evils that beset the land. 

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Host: But the court didn’t hand Gandhi total victory. By a 4:1 majority, it struck down parts of the 39th amendment that protected the election of the Prime Minister. The majority agreed on one thing: this clause violated the basic structure of the Constitution. Gautam Bhatia:

 

Gautam Bhatia: Raj Narain was the first case where this doctrine was tested. It was it was still very new. The Court struck down by a four one majority inter alia holding that, for instance, the rule of law, it was a basic feature, and an amendment like this was damaging, destroying the idea or the concept of the rule of law, by virtue of what it tried to do. 

 

Host: Justices Chandrachud, Ray and Mathew, who were in the minority in Kesavananda did not question the doctrine here.

Even as authoritarianism swept in under the emergency, the basic structure doctrine managed to gain acceptance.

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Bhatia: So that was the first case in which the principle was tested. And, in a certain sense, cemented as as you know, as a doctrine, it was part of Indian constitutionalism.

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Host: The basic structure had been tested, and it had survived. But there’s more drama still to come. Join us next week as we follow the tightening of the Emergency, fresh attacks on the Kesavananda Bharati judgement and Nani Palkhivala’s finest hour in court. Until then, I am your host Raghu Karnad.