The main reason why the Keshavananda Bharti ruling was described as historic was that for the first time in 1973, the Court made explicit the main features of the Constitution which were implicit in the original Constitution of 1950: the ideals of secularism, supremacy of the Constitution, rule of law, separation of powers, the independence of the judiciary, the limitations on the power of Parliament to amend the Constitution and the proposition that all three organs of the State are co-equals under the Constitution.
Perhaps the most important feature made explicit was the independence of the judiciary from any executive control or influence. But the “independence of the judiciary”, which can be described as one of the main supporting pillars of the magnificent edifice of the modern democratic state turned out to be a red rag to the executive bull.
History vividly records that all hell was let loose. Three of the judges who had ruled with the majority were superseded, and a junior judge was promoted as the next Chief Justice of India.
His main claim to fame was that he had consistently ruled in favour of the Executive for years before being rewarded with the top job. With his elevation, the road was clear to reverse the Bharti judgment and anoint the Legislature with sovereign powers. Or, so thought the ruling political executive. One of the first acts of the new Chief Justice was to reconstitute the full Constitution Bench, to “review” the said judgment.
Meanwhile, some of the earlier justices had retired, and the three justices who had ruled against the Executive had resigned. No legal explanation was proffered by the Chief as to the authority under which the Full Bench had been reconstituted. Lady Luck again smiled on the country.
This time, however, none of the other twelve justices was ready to bow and toe the line of the new Chief. And equally summarily, the Bench was dissolved by the Chief Justice, and no damage could be inflicted on the still fragile polity. India could breathe freely again.
Democracy had a very narrow escape. As in other disciplines, history is as ever an unfailing guide. In the absence of the basic structure, the executive could be tempted to arm itself with powers to pick and choose judges. It happened in the wake of the Bharti ruling.
The favoured Chief was a man of questionable integrity, as opined by his successor, who, incidentally, had first sided with the minority. He described his worthy predecessor as some kind of a Bohemian, a public servant with a fixed salary who flaunted ‘14 pairs of designer shoes and other fineries’ quite openly.
This was, apparently, the least of the Chief Justice’s disqualifications. Taking his cue from his political masters in the ruling Executive, he started nominating only such State Chief Justices as would toe his line once in the apex court.
But his masterpiece was a proposition unparalleled in democratic jurisprudence; he declaimed that “Liberty is a gift of law, and could be taken away by law”. In other words, “We, the people” elect our lawmakers to even deprive us of our basic freedoms.
Such a public statement would embarrass even a diehard dictator in today’s age of a hyperactive social media. As cautioned by Fali S Nariman, one of India’s foremost Constitutional authorities, “A citadel never falls except from within”. The soundness of the historic ruling can be ‘judged’ from the fact that for half a century now, various Division Benches of the apex court have not only reiterated the doctrine but expanded the base of the ‘basic structure’ to include more liberal features into it.
Democracy is being continually fortified, and its roots are being nourished with several subsequent decisions on the unfailing strength of Bharti ruling. The Court, by making explicit the earlier implicit basic postulates of the rule of law has arguably engraved our basic freedoms in stone, or, shall we say granite?
The historic significance of the ruling has been described recently by a distinguished former Chief Justice of India thus: “the basic structure doctrine reasserted the independence of the judiciary … it prevents impulsive majoritarian tendencies from infringing upon the rights of individuals and minorities … a bulwark against the tyranny of the majority.”
According to another prominent Constitutional authority, the ruling is a powerful tool in the “hands of the courts to combat governmental lawlessness.” In the context of another but relevant swirling judicial controversy today ~ the Collegium System ~ the ‘tyranny of the unelected’ would be any day preferable to the ‘tyranny of the elected’ is the crucial lesson of modern legislative history of independent India.
The reasoning being advanced by a handful of members of the political executive today about “sovereignty of the legislature” was not only trashed but comprehensively so by the apex court.
Apart from the majority, the minority of the judges who had given a dissenting first view, soon thereafter backtracked ~ 180 degrees ~ and openly conceded that no organ of the State had absolute power.
Justice M H Beg, who first sided with the minority ~ later the Chief Justice of India ~ accepted that “Sovereignty is not vested in any one organ of the state but is divided among them”.
The majority judgment had further reasoned that such a selfserving political view does not find favour in any of the other written Constitutions in the democratic world, either in America or Australia or Canada.
At another level, the majority judgment was a restatement of the basic philosophy of Mahatma Gandhi. Little wonder that it has been described as a ‘locus classicus on constitutional law’, by PC Hota, a civil servant and a Constitutional scholar.
The then ruling political executive had vehemently argued that in order to realise the moral objectives of the State, outlined in the form of Directive Principles, the Fundamental Rights could be subordinated to these.
The Court firmly negated these arguments and ruled that the Directive Principles were the ends whereas Fundamental Rights were the means. Just ends cannot be achieved through unjust means, something that the Mahatma lived and fought for all his life. India that is Bharat, proclaims the Constitution.
Amendment may or may not be the flavour of the season, but this one would be in order: ‘And Bharat that is Bharti’.
(The writer is a former IAS officer)