Chief Justice AN Ray will go down in history of Indian Judiciary as the worst Chief Justice of Indian Supreme Court. For, he was no more than a loyal servant of Indira Gandhi and damaged the Indian judiciary forever.
Congress wanted a pliant judiciary, a doormat Constitution and dictatorship by proxy. So the great battle of whether Parliament has infinite powers to kick and mess Constitution as it pleases or are there any limits which even the people’s representatives cannot cross – started.
Three Cases that Challenged Totalitarianism by Congress
Three cases stand at the forefront of this battle that Congress Party – and Gandhis specifically – have waged against the Constitution.
Golaknath Case 1967: 17th Amendment of Constitution was brought in by Nehru’s Government to acquire lands and estates by the State. This was challenged by the family of Henry and William Golaknath (who owned 500 acres of land) and under the 1953 Punjab Security and Land Tenures Act lost all but 30 acres of land to the State. The case came up to Supreme Court in 1965. The Punjab Act 1953 was made possible by the 17th Amendment. Chief Justice Koka Subba Rao used the Doctrine of Prospective Overruling which was used by American jurists George F. Canfield, Robert Hill Freeman, John Henry Wigmore and Benjamin N. Cardozo where they decided that “a court should recognize a duty to announce a new and better rule for future transactions whenever the court has reached the conviction that an old rule (as established by the precedents) is unsound even though feeling compelled by stare decisis to apply the old and condemned rule to the instant case and to transactions which had already taken place” CJI Rao’s bench decided that amendments of 17th Constitutional Amendments had abridged the scope of Fundamental Right. Thus ruling against the 17th Amendment.
What then is the effect of our conclusion on the instant case? Having regard to the history of the amendments, their impact on the social and economic affairs of our country and the chaotic situation that may be brought about by the sudden withdrawal at this stage of the amendments from the Constitution, we think that considerable judicial restraint is called for. We, therefore, declare that our decisions will not affect the validity of the constitution (Seventeenth Amendment) Act, 1964, or other amendments made to the Constitution taking away or abridging the fundamental rights. We further declare that in future Parliament will have no power to amend Part III of the Constitution so as to take away or abridge the fundamental rights.
Thus the courts rules in favor of curbs to the power of the Parliament to amend Constitution to curtail the fundamental rights of the citizens.
Bank Nationalization Case 1970: This case was brought in by Rustom Cavasjee Cooper, the Director of Central Bank of India. Government of India brought in the ‘Banking Companies (Acquisition and Transfer of Undertakings) Ordinance, 1969 which nationalized 14 largest commercial banks on midnight of 19 July 1969. He held shares in many banks which were nationalized. These banks had 85% of all the bank deposits in India. It was held by the Supreme Court that “..Constitution guarantees the right to compensation, that is, the equivalent money of the property compulsorily acquired. The Court also held that a law which seeks to acquire or requisition property of public purposes must satisfy the requirement of Article19(1)(f).”
Privy Purse Case 1970: Also known as H. H. Maharajadhiraja Madhav Rao vs Union Of India the 8 judge bench looked at the abolition of the privy purses. In 1967, several rulers of the former Princely states joined C. Rajagopalachari’s Swatantra Party and were able to defeat many Congress candidates in the elections. This infuriated Indira Gandhi, who brought the bill to abolish the Privy purses and titles of the rulers before Parliament. The bill passed Lok Sabha but was defeated in Rajya Sabha. But VV Giri, a rubber stamp President of Indira Gandhi signed an instrument whereby all the recognitions of the erstwhile Princely state rulers were withdrawn. The 8 Judge Bench ruled the order by VV Giri as Illegal!
The Order of the President “derecognising” the Rulers is ultra vires and illegal. [69 G; 100 C]
(Per Hidayatullah, C.J. (1) The action of the Presidentwithdrawing recognition of all Rulers is ultra vires article 366(22) and a nullity. Article 366(22) neither expressly nor by implication places the power in the hands of the President to say that although a Ruler is in existence or a successor is available there shall be no ruler of any particular state. The definition contemplates the existence of the Ruler “for the time being”. The phrase “for the time being” cannot mean that any person can be appointed who has no claim whatever or that temporary appointments may be made or that no appointment need be made. The continuity of a Ruler of an Indian State is obligatory so long as the Ruler is alive or a successor can be found. The obligation to recognise a Ruler is bound up with the other guarantees contained in articles 291 and 362 and the definition in article 366(22) is merely the key to find a particular Ruler. The withdrawal of recognition from all the Rulers renders the guarantees also the relevant articles of the Constitution, inoperative.
Interestingly, all the three landmark cases had been argued by Nani Palkhiwala who defeated the designs of Indira Gandhi in Indian Supreme Court.
Thus not one but three actions by the Congress Government to curtail the rights of citizens established under the Constitution were ruled against by the Courts of the day. That did not bode well for the future of Indian Judiciary as Indira Gandhi then ran amock in her fight against the Courts!
Two Amendments that Slaughtered the Indian Constitution
Two infamous Amendments under Indira Gandhi: Indira Gandhi, then brought in her two Constitutional Amendments – 24th (November 5, 1971) and 25th (April 20, 1972).
24th Amendment 1971: This was in direct challenge to the Golaknath case verdict and it allowed the Parliament to dilute the Fundamental Rights of Indian citizens through a Constitutional Amendment. It also amended article 368, to give unlimited powers to amend any provision of the Constitution. Not just this, this amendment also made the President’s assent obligatory, when such a Constitutional Amendment bill was presented to him/her.
25th Amendment 1972: This amendment was a direct challenge to the ruling in the Bank Nationalization case of 1970. This amendment curtailed the right of Indian citizens to property and also permitted the acquisition of private property by the Government for public use by paying compensation determined by Parliament and NOT the courts!
VG Ramachandran, a prominent legal expert said about the 24th and 25th amendments that these were not tinkering but a slaughter.
These two amendments are not ‘tinkering’ with the Constitution. It is a veritable slaughter of the Constitution.
Ramachandran goes on to say and ask the most fundamental question pertaining to rights of Indian citizens under the Indian Constitution.
We are sorry to use the word ‘slaughter’. We are tempted to feel very sad indeed for this unhappy slaughter — unhappy in the sense it portends no good for anybody, the people or the Government. It lowers the prestige of the legislature as well as the Judiciary. When our founding fathers forged this Constitution they were well aware of the social and economic urges in the country. But they were anxious that the progress must be gradual and stable and not revolutionary. That is why they envisaged the rights to be fundamental in Part III subject to reasonable restrictions in public interest. They further enunciated in Part IV the Directive Principles of State Policy which may be translated into reasonable restrictions of the rights in Part III by law from time as conditions justified them. Changes made overnight during national poverty only increase poverty when there is no corresponding effort at production and increase of wealth. It is equally true that social and economic conditions cannot be improved merely by legislation. It would appear that the people who looked for a Utopia are being fed by a spate of legislation conferring legislative Power. For whose benefit is this? Is it for the political party in power or for the people?
As Indira Gandhi trampled Judiciary’s powers under the feet of the Parliament to create totalitarianism of her Government, the ball was in the court of Judiciary to save its prestige and honor. So, this paved the way for the next battle.
That was fought in the Kesavananda Bharati v State of Kerala case.
Judiciary Fights Back – Kesavananda Bharati Case
On April 24, 1973 – 13 Justices of the Indian Supreme Court came together to deliver the ruling on the landmark Kesavananda Bharati case. Sri Kesavananda Bharati, was the chief of the Hindu Mutt – the Edneer Mutt in Kerala. Based on the 24th, 25th and 29th Constitutional Amendment Act; the Land Reform Act, 1963 and Land Reform (Amendment) Act, 1969 & 1971 of Kerala Government – the lands of his Mutt were acquired by the Kerala Government and he was not given any relief by the Kerala High Court.
So Sri Bharati brought in his case under the fundamental rights inherited in Article 26. The case was argued by none other than Nanabhoy Palkhivala. The man who had inflicted the defeat to Congress’ designs in the three landmark cases earlier.
The majority ruling in this case (held by close margin of 7-6) said:
“ Verdict of GOLAKNATH Case was not correct and Government can Amend the fundamental rights by the virtue of Article 13(4) and Article 368(3), and the Constitution by Article 368, but without changing the basic structure and nature of the Constitution ”
“Section 2(a), 2(b) and first part of section 3 of the 25th Constitutional Amendment Act, 1971 is valid but second part of section 3 is unconstitutional, which prevents Judiciary from judicial review ”
On April 25th, just a day after the ruling, the 13th Chief Justice of India Chief Justice SM Sikri retired.
In an act of unprecedented vengeance, Indira Gandhi superseded three senior-most Justices of Supreme Court- Justice Jaishanker Manilal Shelat, Kawdoor Sadananda Hegde and Justice AN Grover to anoint Justice AN Ray as the Chief Justice of the Indian Supreme Court.
This was the blackest day of Indian Democracy.
Fomer Chief Justice Mohammad Hidayatullah said:
this was an attempt of not creating ‘forward looking judges’ but the ‘judges looking forward’ to the plumes of the office of Chief Justice.
Chief Justice AN Ray became a subservient loyalist of Indira Gandhi – who would call her oh phone for her advice on matters. Even asked for direction from Gandhi’s personal secretary on simple issues! (Austin, Granville (1999). Working a Democratic Constitution – A History of the Indian Experience. New Delhi: Oxford University Press. p. 290) Such was the capitulation of the Indian Judiciary under the onslaught of the Congress’ world view of a “Committed Judiciary”.
Onslaught against Chief Justice Deepak Mishra – Continuation of Congress Tradition
What was once achieved by veritable rape of Indian judiciary traditions and honor by Congress under Indira Gandhi, is again sought to be enforced by the Congress now. CJI Mishra is again facing the wrath that was once visited upon Justices Shelat, Hegde and Grover for their role in challenging the might of Congress and its totalitarianism! Congress has proceeded for go for impeachment of the CJI Deepak Mishra, which has been rejected by the Vice President of India! In a 10 page order, VP Naidu ruled that the grounds used by the motley opposition collected by Congress were insufficient to admit the petition.
Now, Congress has gone ahead with its repository of dirty tricks.
In two actions that smack of the same totalitarianism that exemplified the actions of Indira Gandhi, Kapil Sibal and Congress Spokeswoman have displayed their arrogance to abuse and undermine the Indian Chief Justice who has displayed the strength to not bow down to such high-handedness!
Calling the Chief Justice of India as the Bench fixer – when he is doing his traditional duty is not just atrocious but smacks of totalitarianism and contempt of the highest court in the land.
Harish Salve, former Solicitor General of India, has challenged the propaganda by Congress head on.
Opining on the Prasad Educational Trust case, which was one of the main charges levelled in the now-rejected impeachment motion against the CJI, Harish Salve accused the Opposition of having their facts in a tangle as the matter originated long before Dipak Misra assumed his current position and even before he was a judge in the Supreme Court.
He also challenged Divya Spandana alleging that CJI Dipak Misra had ‘bench-fixed’ in the Aadhaar case, narrating the series of events that culminated in the CJI presiding over a 5-judge bench, which is the norm he has observed since the 70s.
In another action, Kapil Sibal – a Congress MP and a lawyer known for dramatics of arrogance, has threatened that he will not appear before the Chief Justice of India until he is there. Sibal will boycott the bench of the CJI until Chief Justice Mishra is there.
This is a personal affront!!
Salve said about the Sibal who is known for cheap dramatics to show his arrogance in the all important Ayodhya case, where he threatened to walk out as well.
“I was in the Ayodhya case when Mr Sibal threatened to walk out of the case. I was sitting there stunned to hear a lawyer saying he would walk out. Understand the connotation of walking out, it’s awful disrespect. If it becomes such that anyone can spew venom and walk away, someday, someone against whom the court gives a judgment will turn around and say ‘I hope you haven’t taken a bribe.'”
Salve suggests the right solution to this politics of totalitarianism by Congress. He says that the solution is – contempt of court to be filed and people to be sent to jail for the manner in which the country’s judicial system has been ‘vilified, horrified and scandalised’
The nonsense and the whole drama by Congress has not escaped the best of the Indian judiciary world. Here is the take by Ram Jethmalani.
Interestingly, Soli Sorabjee, Fali Nariman and Ram Jethmalani – the three senior-most legal minds have gone public with their shock and anger against this nonsense by the Congress party as it goes into the impeachment for the CJI.
The time has come to nail the cat of Congress Totalitarianism decisively. The rape, the slaughter, the mockery of Indian Judiciary by a political party and an ideology that is no longer in currency but yet presses itself on the rights of the Indian citizens and justice for them has to stop.
The time is nigh.