THE 50TH ANNIVERSARY of the epochal basic structure judgment in the Kesavananda Bharati (KB) case occasioned a lot of comments recently. Top-notch constitutional lawyers have expounded on what to this day is probably the most significant signpost to the reading and working of the Constitution. Only a day after the largest Bench of 13 Supreme Court judges, in a 7-6 verdict, set the template for amendment of the Constitution, Indira Gandhi cocked a snook at the highest court. Three senior judges, who were part of the seven to come up with the newly minted doctrine for serving as a bulwark against the abuse and distortion of the founding documents, were superseded. It was lost on most commentators. But what I found really surprising was that the celebrated legal luminaries who spared no laudatory phrase to hail the judgment as a life-saver for the democratic, secular, Republic, completely lost sight of the 19-month Emergency and the complete extinguishment of the fundamental rights. Wrote one senior lawyer, who has emerged as Arvind Kejriwal’s favourite to plead the Delhi government’s multiple cases in the apex court: “The KB case established a permanent bulwark against tyranny and dictatorship.” The piece by another lawyer, widely respected for his scholarship and commitment to the law, above all else, was headlined: ‘Democracy’s sentinel; basic structure doctrine prevented fundamental rights being eroded during the Emergency.’ I can cite some more comments in a similar vein to memorialise the stellar basic structure boilerplate meant for the sanctity of our founding document. Suffice it to say, it has left me flummoxed why such great legal minds were completely oblivious to the frontal assault on the Constitution, most importantly, on the basic rights of the citizens, only a year after the KB verdict. In a telling exchange between the 13-member bench and then-Attorney General Niren De, when asked if the police were to shoot an innocent man dead during Emergency was there any remedy available, with a straight face he lost not a moment to reply, “Your Lordships, as long as there is Emergency, there is no remedy…that is the law…” If the collective conscience of Their Lordships was pricked at this audacity, there was no evidence, especially when they went on to put their dhobi-mark on the overturning of the Constitution. And with that, on the total extinguishment of the fundamental rights. Incidentally, inspired by this line of reasoning, then Home Minister SB Chavan would later congratulate himself for restraint: “Thank God, the Opposition leaders were merely imprisoned. They were not shot dead.” That astounding claim stemmed from the carte blanch the apex court had given the executive. Such was the pall of fear hanging over the country that at the end of Emergency, Justice YV Chandrachud, one of the six who had nixed the notion of basic structure, was quoted by various newspapers saying: “We were all acting out of fear…” In other words, the judicial pronouncements during the 19 months of darkness were informed by, er, well, not by the founding statute but by completely extraneous factors. It is another matter that the Janata Party government of Prime Minister Morarji Desai, which succeeded the defeated and disgraced regime of the Indira-Sanjay duo, did not for a moment toy with the idea of superseding Chandrachud, going strictly by seniority to appoint him as the Chief Justice of India (CJI).
No commendation of the basic structure is complete without paying fulsome tribute to Nani Palkhivala, its real architect. His sharp wit, erudition, mastery of the law and, above all, court craft, gently guided the apex court to invent the hitherto unknown doctrine. No doubt, the seeds of this great firewall against wilful and arbitrary rulers lay in the writings of a German professor, but it was the ace Bombay lawyer who had the wisdom and intellect to chaperone with gentle grace and polite but forceful argument a majority of the highly opinionated judges to erect solid guard rails against the decimation of the Constitution by a power-crazy regime. Incidentally, until the late 1980s, most celebrated lawyers were members of the Bombay Bar, with a couple of them from the south. Law alone was not their passion. They were equally passionate about the arts, music, culture, literature, etc. The Bombay greats have faded away with the exception of Fali Nariman. Money with a capital ‘M’ motivates the leading lights of the once noble profession.