The quote has been attributed to Edmund Burke, George Santayana and Winston Churchill. The version that is often quoted is: “Those who cannot remember the past are condemned to repeat it.” Karl Marx’s variation carried more punch. He said, “History repeats itself, first as a tragedy, then as a farce.”
In recent weeks, three Constitutional authorities have occupied centre-stage: Mr Jagdeep Dhankhar, Hon’ble Vice President of India and Chairman, Rajya Sabha, born 1951; Mr Om Birla, Hon’ble Speaker, Lok Sabha, born 1962; and Mr Kiren Rijiju, Hon’ble Minister of Law and Justice, born 1971. The first would have experienced the days of the Emergency (1975-1977), the second would have heard and read about it, and the third, given the office he holds now, would have studied its history.
In 1967, in an unremarkable property dispute, Golaknath vs State of Punjab, the Supreme Court held (by a majority of 6:5) that the Fundamental Rights contained in Part III of the Constitution of India could not be abrogated or abridged by Parliament. The central issue was ‘property’, not ‘freedom’. Therefore, the debate became ideological.
The judgement in Kesavananda Bharati vs State of Kerala (1973) contained nothing that should have caused alarm. The central issue was, again, ‘property’. The Court upheld the Kerala Land Reforms Act and the petitioner lost the case. The Court also upheld the power of Parliament to amend the Constitution, including the fundamental rights, save the basic structure of the Constitution. The few examples of the ‘basic structure’ that the Court noted were beyond controversy. Who can find fault with the conclusion that federalism, secularism and an independent judiciary are basic features of the Constitution? The debate continued, but it was less ideological than the debate stirred by Golaknath.
The immediate cause of the Emergency proclaimed on June 25, 1975 was an event unrelated to Parliament’s power to amend the Constitution. It was the annulment of the election of prime minister Indira Gandhi by an election tribunal. Nani Palkhivala had accepted the brief on behalf of Indira Gandhi and I am certain he would have succeeded in overturning the judgement in a regular appeal to the Supreme Court. However, in an egregious overreach, a number of steps were taken, including Constitutional amendments, that would have turned India into an authoritarian and repressive state.
The only bulwark was the judiciary. Truth be told, the judiciary failed the people. The lowest point in the history of the Supreme Court was the A D M Jabalpur case. Justice H. R. Khanna alone stood up to the onslaught on the liberties enshrined in the Constitution. In the High Courts, thankfully, there were some judges who refused to abide by the judgement of the Supreme Court and upheld personal liberty, notably Justices J. S. Verma and R. K. Tankha in Madhya Pradesh.
Conflating Two Issues
I believe that Mr Dhankhar, Mr Birla and Mr Rijiju have read the history of the period from 1967 to 1977. Mr Dhankhar is conflating two separate issues. Whether Parliament can amend every and any provision of the Constitution and whether that is beyond the pale of judicial review is one issue.
Whether the judgement of the Supreme Court striking down the 99th Constitution Amendment and the National Judicial Appointments Commission Act was correct is a different issue. One can hold the view that Kesavananda Bharati was correctly decided and hold the view that the NJAC case was wrongly decided. Many legal scholars hold those views.
Unfortunately, the debate sparked by Mr Dhankar has spawned many questions that are critical to the idea of India as a federal, democratic republic. Mr Rijiju has made confusion worse confounded by wading into the debate with a demand for a seat for the Government in the Collegium system that he wishes to abolish! The alarm bells have begun to ring that a sinister plan is in the making to ‘overhaul’ the Constitution.
Suppose we concede Parliamentary supremacy over the Constitution. Let me ask a few questions:
- Would you agree if a State is dismembered and multiple Union Territories are carved out (a la Jammu & Kashmir)?
- Would you agree if freedom of speech, freedom to reside in any part of India, and freedom to practice any profession or carry on any business is abolished?
- Would you approve of a law that will treat men and women unequally; treat Hindu and non-Hindu differently; or deny rights to LGBTQ+?
- Would you agree if the rights guaranteed to Muslims, Christians, Sikhs, Parsis, Jains, Buddhists, Jews and other minorities under the Constitution are abolished?
- Would you agree if List II (State List) was removed from the Seventh Schedule and all legislative power concentrated in Parliament?
- Would you agree if learning a particular language was made compulsory for all Indians?
- Would you approve of a law that stipulated every person accused of an offence shall be presumed to be guilty until he/she is proven to be innocent?
Today, Parliament cannot make such laws. They will be subject to judicial review. On the contrary, under the doctrine of ‘Parliamentary Supremacy and Judicial Forbearance’, such laws cannot be reviewed or struck down by the Courts.
Fifty years after the verdict, Kesavananda Bharati is being portrayed as a ghost that haunts India and inhibits our progress. I believe it is an angel that guards the country, the Constitution and the people.
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