HOW INDIA ALMOST LOST ITS DEMOCRACY

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Tejasvita Apte, Lawyer | Empowering Goa

That India is a democracy today owing to the Supreme Court’s judgement with a wafer thin majority of 7:6!

Four decades back India dealt with a situation where her very foundation was shaken. This happened in 1975 with the declaration of Emergency by the then Prime Minister Indira Gandhi.

The path she chose for India could have taken us down to the bowels of Anarchy. For such were her actions!

The saving grace was the glorious institution that we call Supreme Court. The case I am talking about is none other than Kesavananda Bharti v. State of Kerala. 

The issue was with reference to the Parliament’s power to amend the Constitution. Can the Parliament amend any part of the Constitution? Or there are certain basic features that are beyond amendments? For instance, can the Parliament take away people’s Fundamental Rights?

In this case, with a ratio of 7:6, the Supreme Court laid down the ‘Basic structure doctrine’ which says that Parliament can amend any part of the Constitution as long as it doesn’t violate the basic features of the Constitution.

This most important part of the judgement is a mere paragraph towards the end written by Justice H.R. Khanna. This paragraph is what made the ratio 7:6! 

The man instrumental in saving our democracy other than Justice Khanna is none other that eminent lawyer Nani Palkhivala. Sadly today, very few Indians outside the field of law have heard of him.

EMERGENCY

The first thing you need to know about emergency is –

During emergency, Fundamental Rights are suspended. This means that the state can take any action and people have no recourse. During emergency thousands of people from the opposition were arrested and put behind bars without a trial. The press had absolutely no freedom to report. There was extreme censorship. Extreme measures like forced mass sterilization were conducted. The state policies were implemented completely.

This in short is what happened in Emergency.

Emergency was declared in India from 1975-1977. 21 months. Indira Gandhi was the Prime Minister and Fakruddin Ali Ahmad was the President.

Background

From the beginning, there was a clash between the Legislature and the Judiciary in India. Immediately after independence, the government in view of its socialist policy carried out land reforms. Land was acquired by the government.

At that point of time, Right to property was still a Fundamental Right. A lot of amendments were carried out including removal of Right to property from Part III (It is now a legal right), creation of IXth schedule ( A schedule in the Constitution that gives immunity to laws. If a law is put in the IXth schedule, it cannot be challenged on the grounds of violation of Fundamental Rights).

The Supreme Court initially was very pro government as it saw these amendments as necessary to carry out reforms. In the cases of Sajjan Singh and Shankari Prasad, therefore, the Union of India won.

But 17 years after, the misuse of IXth schedule slowly came to light.

I.C. Golaknath v. State of Punjab

This was a landmark case in which the Petitioner won. This was a bench of 11 judges. Constitutional validity of a bunch of amendments as well as land laws (which were included in the IXth schedule were challenged).

The question was – Whether the Parliament has unlimited power to amend the Constitution or not.

Article 13 of the Constitution lays down that the State shall not pass any law which violates Fundamental Rights. The meaning of the word ‘law’ came up for interpretation. Did it include Constitutional amendments? That was the second question.
If it did, then amendments could not be made to the Fundamental Rights. If it did not apply to Constitutional amendments, then the Parliament could amend the Fundamental Rights (even take them away) but could not pass a law that violated them (Ironically!).

The SC held by a majority of 6:5 that the word ‘law’ in article 13 included Constitutional amendments.

Effect – 

The effect of this judgment was that Parliament became powerless to amend, alter any part of the Fundamental rights enshrined from 14-32. 

This verdict (highly criticized) resulted in creating a major rift between the judiciary and the legislature. It also resulted in a legal battle that continued through a series of cases and a lot of Judicial transfers!

These landmark cases are –

Privy purses case, Benett Coleman Case, Bank

Nationalization case, Kesavananda Bharti case, Minerva Mills case, etc.

Privy Purses case and Bank Nationalization case did not go as the government desired.

The Political storm

Meanwhile, a political storm was brewing which was owing a lot to the economic situation in India. In hindsight everyone today would agree that India’s socialism hasn’t really helped her, but at that point of time, it was highly in vogue.

1971 – Garibi Hatao (Eliminate poverty)

This was the catchy slogan used by Indira Gandhi to win a stunning victory in 1971. Immediately after that, the government’s top priority was to over rule Golaknath’s case along with Privy purses and Bank Nationalization cases. Consequently, Constitution was amended. There was many vicious changes like the word ‘compensation’ was replaced with ‘amount’.
So initially, if a person’s land was acquired, the government as per law was required to pay them compensation. Now, they were required to pay an ‘amount’ which could very well be Rs. 1/-.

Meanwhile from 1973-75, there was huge unrest with strikes and lockouts in the country. The government was highly criticized and it faced several no confidence motions in the Parliament.

Indira Nehru Gandhi v. Raj Narayan

This case further added to Mrs. Gandhi’s troubles. Raj Narayan who had contested against Indira Gandhi and lost, filed cases of election malpractice against the sitting Prime Minister!

Justice Jagmohan Sinha of the Allahabad High Court found the Prime Minister guilty of the charges. Apparently, the judge’s stenographer was forced to live in the judge’s house with his family as there were threats to his life! Indira Gandhi appealed and lost.

This case was like the final nail in the coffin!

Jayprakash Narayan was organizing rallies against the government and this was probably the time Indira Gandhi would have thought of declaring emergency and seizing power. In her biography, it is written that this was probably the most difficult time for her and she was extremely insecure.

Emergency was declared on 25 June 1975 citing threats of national security and bad economy. 

There were widespread arrests without trials, violation of Human rights, police brutality, mass sterilization, etc.

Aftermath – 

The Emergency came to an end on 23 March 1977. Fresh Elections were called for and Janata Party (opposition) won. Ironically, in 1980, Indira Gandhi again won majority owing to ideological divides in the Janta government.

Current legal position as to amendability of the Constitution – 

The SC in partially over ruled Golaknath’s case in the landmark case of Kesavananda Bharti v. State of Kerala. 
It has laid down that the Parliament has the power to amend any part of the Constitution as long as it doesn’t violate the Basic Structure of the Constitution.

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