When rigid Judiciary triggered constitutional crisis, disorder in India
By Paul Mwangi
| June 27th 2021
When it met at the Constitution Hall in New Delhi on January 24, 1950, to vote for the constitution, the Constituent Assembly for India resolved to establish a socialist state.
First Prime Minister Jawaharlal Nehru said: “At present, the greatest and most important question in India is how to solve the problem of the poor and the starving… if we cannot solve this problem soon, all our paper constitutions will become useless and purposeless.”
The assembly promulgated Article 39 calling for equitable distribution of resources and preventing concentration of wealth in the hands of a few. State governments passed more than 250 pieces of legislation to implement land redistribution. On the receiving end were pre-colonial feudal landowners known as Zamindars.
Faced with a new constitutional order, Zamindars sought the help of the Judiciary against the State governments. The Judiciary commenced a vicious supremacy battle against the Executive and Legislative arms that almost resulted in total collapse of the constitutional order. One after the other, courts struck down every law and invalidated every policy that sought to effect land reform.
A scholar who wrote on the Judiciary then summarised its increasingly alarming hostility as “procedural nitpicking”, “hair splitting legalisms,” “literal interpretation,” “narrow, technical and mechanical” and “concern of form, not for policy or substance.”
Then came the case of Golak Nath vs State of Punjab in 1964. The Golak Nath case came after the Indian government, tired of having all the land reform laws struck down by the courts as unconstitutional, decided to now amend the constitution and make right the law reform programmes.
Although the Supreme Court had 10 years before held that Parliament had unlimited power to amend the Constitution, it now overruled itself and said that this power was limited. In a majority judgement of six judges against five, the court struck down as unconstitutional a law that allowed the State government to acquire part of the land owned by Golak Nath family and distribute it to the landless.
But what happened next shocked India. On April 11 1967, barely six weeks after delivering the devastating blow against the Indian government, Chief Justice Koka Subba Rao, who was retire in three months, resigned. Then four weeks later, seven of the main opposition political parties announced Subba Rao as their candidate in the presidential election.
Although the political groups explained that they had settled on Subba Rao because of his “non-partisanship” and “objectivity”, it was clear that even when he led the majority in the Golak Nath case, Subba Rao had already struck a deal with the opposition political parties.
He lost to Zakir Hussain of the ruling party, but the political damage that the Judiciary had done to the Congress Party became apparent.
Unable to implement any of the promises it had made due to the frustrations from the Judiciary, the Congress Party lost its popular vote of over 95 per cent. Subba Rao carried about 45 per cent of votes in the presidential election.
Emboldened by what appeared to be support from the population, the Judiciary continued with its onslaught. In 1970, when the president attempted to remove the privileges of the traditional princes known as the maharaj on the basis that they could not apply to an independent and democratic country, the Supreme Court declared this unconstitutional.
Courts versus state
In response, the Prime Minister Indira Gandhi took the matter to the people. On December 27, 1970, one year to elections, she dissolved Parliament and ordered fresh elections. In the campaigns, Gandhi took her case against the Judiciary to the people, saying judges had denied India the social and economic revolution they had aspired for at Independence.
Many observers believed that she had taken a serious risk in calling the elections, but the people gave her party a two-thirds majority.
Her first order of business was to re-assert the authority of Parliament and in that year, the House passed what was known as the 24th Amendment. It provided expressly that Parliament had the power to amend any part of the Constitution including the provisions on Fundamental Rights.
The Supreme Court responded with the decision in Kesavananda Bharati vs State of Kerala, populary known as the Kesavananda case. It stated that Parliament had no power to change the Basic Structure of the Constitution. Again, the decision was passed by a majority of one, seven judges supporting and six rejecting.
There is a lot of controversy over this decision with many legal analysts saying that it is actually not clear what the judges passed. For instance, the judges who supported the concept of Basic Structure were unable to agree what that structure was.
Further, some judges had said on one hand that there were no implied limitations to the power of Parliament but on the other hand that there was a Basic Structure. Over the next four years, Gandhi’s popularity waned as she struggled to deliver on her promises but unable to pass the laws she needed to do so.
On June 12 1975, the High Court of Allahabad, in its judgement in an election petition, declared that she had not been validly elected as a representative of the Rae Bareli Constituency in Uttar Pradesh.
Justice Jagmohanlal Sinha declared that Gandhi was guilty of election offences. He also barred her from contesting any election for six years.
In what was described by The Times of London as “firing the Prime Minister for a traffic ticket,” the court found Gandhi guilty for allowing the State police to build a dias for one of her meetings, and also for sending an officer in the Prime Minister’s office to deliver an election speech, though the officer had resigned one week later to join the campaign.
Gandhi ran to the Supreme Court for a stay pending appeal. The Supreme Court said she may continue as Prime Minister but she may not participate in the proceedings of the House or vote or draw any remuneration as a Member of the Parliament.
Gandhi did not wait for the final blow. At midnight on June 25, 1975, on her advice, President Fakhruddin Ali Ahmed declared a State of Emergency all over India.
Gandhi ruled India by decree for the next two years. She launched a massive crackdown on civil liberties and political opposition and secured the approval of parliament to continue the State of Emergency after every six months. Parliament rewarded itself for this favour by delaying elections and extending its life.
The constitutional order was only restored when Gandhi finally decided to lift the State of Emergency. She lost the election to a coalition of opposition parties.
The lessons the Judiciary learnt were best captured by Justice Markandey Katju of the Indian Supreme Court in December 2006 when he issued a warning to judges in the Aravali Golf Course case:
“If the Judiciary does not exercise restraint and overstretches its limits, there is bound to be a reaction from politicians and others. The politicians will then step in and curtail the powers, or even the independence of the Judiciary. If there is a law, the judges can certainly enforce it but judges cannot create a law and seek to enforce it. Judges must know their limits and must not try to run the government. They must have modesty and humility and not behave like emperors.”
How Sossion's abrasive leadership ruined unionInsiders now say that the abrasive leadership of Sossion exposed the union to undue hostility from the government.
I'm 'married' to my cats, says man who feeds the tabbies chapati and beefHe currently has more than 150 under his care and together with his siblings, they have about 300 cats.
Missing Ugandan woman found in septic tank
By Too Jared
- Wanjigi: Send home all MPs over rising fuel, food prices
- Why fuel lands in Kenya at Sh60 but is being sold at over Sh130
- 'A' plain student risks missing out on Egerton University dream course
- Contractor to refund Judiciary Sh3.2 million for using their water
- Farmers set up Sh450m maize milling plant to ward off cartels