How a Supremacist Govt Can Subvert the Constitution

Given the firm and secular orientation of the Indian Constitution, it simply canot accodomodate a corporate backed Hindu supremacist agenda. Hindutva forces cannot bring in a “ Hindu Rashtra” within the term and provisions of the Indian Constitution as it now stands…


Setting aside the Constitution (Ninety-Ninth) Amendment Act 2014 and  NJAC Act  2014 was a fundamental and substantive set back to the Modi Government.  These two enactments were made with a motive to appoint judges convenient and to the liking of the executive so that in near future the Kesavanand Bharati case can be overruled and thereafterdrastic amendments in the Constitution be effected to legislate and allow the transformation (sic) of India into a Hindu Rashtra.

This can, nonetheless can be done  only by drastically amending the Constitution of India. So long as the Kesavanand Bharati (AIR 1973 SC 1461) holds the field it is not possible to do so in as much as Kesavanand has held that the Parliament in its power under Article 368 to amend the Constitution has no power to change the basic structure of the Constitution. 
Para 599 (expressing the Majority view) of the Kesavananda case reads as follows:-

 “The basic structure of the Constitution is not a vague concept and the apprehensions expressed on behalf of the respondents that neither the citizen nor the Parliament would be able to understand it are unfounded. If the historical background, the Preamble, the entire scheme of the Constitution,the relevant provisions thereof including Article 368 are kept in mind there can be no difficulty in discerning that the following can be regarded as the basic elements of the Constitutional structure (These cannot be catalogued but can only be illustrated).
1. The supremacy of the Constitution.
2. Republican and Democratic form of Government and sovereignty of the country.
3. Secular and federal character of the Constitution.
4. Demarcation of power between the legislature, the executive and the judiciary.
5. The dignity of the individual (secured by the various freedoms and basic rights in Part III and the
mandate to build a welfare State contained in Part IV.
6. The unity and the integrity of the nation.”

It is important  to note here that the word “Secular” was inserted in the Preamble of the Constitution by  the Constitution’s Amendment Act w.e.f 3.1.77 whereas in the Kesavanand’s case “Secular” was held  to be  a basic feature  of the Constitution on 24.4.73.   
In S.R.Bommai  (AIR 1994 SC 1918)  Para 28  reads as follows :
 “Notwithstanding the fact that the words ‘Socialist’ and ‘Secular’ were added in the Preamble of the Constitution in 1976 by the 42nd Amendment, the concept of Secularism was very much embedded in our constitutional philosophy. The term ‘Secular’ has advisedly not been defined presumably because it is a very elastic term not capable of a precise definition and perhaps best left undefined. By this amendment what was implicit was made explicit. The Preamble itself spoke of liberty of thought, expression, belief, faith and worship. While granting this liberty the Preamble promised equality of status and opportunity. It also spoke of promoting fraternity, thereby assuring the dignity of the individual and the unity and integrity of the nation. While granting to its citizens liberty of belief, faith and worship, the Constitution abhorred discrimination on grounds of religion,
etc……………………………………………..These  fundamental rights enshrined in Articles 15, 16, and 25 to 30 leave no manner of doubt that they  form part of the basic structure of the Constitution.”

This aspect has been concluded in S.R.Bommai in paragraph 88 in the following words:
“These provisions by implication prohibit the establishment of a theocratic state and prevent the state either identifying itself with or favoring any particular religion or religious sect or denomination .The State is enjoined to accord equal treatment to all religions and religious sects and denominations”.
The current political scenario in India is much worse then what was experienced  and witnessed during the  emergency from  mid-1975 to early 1977 ( A period of only 18 months)..

The situation leading up to the declaration of Emergency was the inevitable result of a chain of events starting from the April 24, 1973: the date on which the Kesavanand Bharati case was decided by a  small majority of 7 : 6 upholding  the  Basic Structure Doctrine till the date of declaration of Emergency.

In fact it was in Golak Nath vs State of Punjab (AIR 1967 SC 1643) that the issue of the scope of the  power of  Parliament to amend the Constitution under Article 368 was raised. By slender majority the Court held that Parliament could not abridge or take away the Fundamental  Rights.

The Golak Nath judgment negated the sweep of Article 368 to amend provisions contained in Part III of the Constitution. This was the first major step taken by the Supreme Court to contain the erosion of the Constitutional scheme. After the judgment in Golak Nath, Indira Gandhi painted the Court as the principle adversary of her radical politics. Indira Gandhi launched a campaign, against the judicial system, calling it a major obstacle to progress towards socialism. She mobilised quite a few intellectuals, academics, lawyers and judges- who emphatically criticized the Supreme Court’s decision in Golak Nath and generally regarded the court as the principle class enemy.

How the Kesavanand case was decided by such a thin majority

A  detailed  and authentic account is given by Granville Austin in Chapter 11 of his celebrated book “Working a Democratic Constitution – The Indian Experience”. It makes for interesting reading that details how Indira Gandhi attempted the case to be decided by overruling the Golak Nath case.On the following day that is on the 25th April 1973 the President of India  appointed A.N.Ray as the next Chief Justice of India  superseding Shelat, Hegde and Grover, the three senior most judges , who , by the convention of seniority, were next in line for the position. And thereby Mrs. Indira Gandhi struck a grievous blow to democratic constitutionalism as well as to  the independence of judiciary.

On the June 5, 1974 , more than a  year after the Kesavanand Case, Jai Prakash Narayan started a massive movement  of the “Total Revolution”. While the J.P. movement was gaining ground amongst the masses, Mrs Indira Gandhi’s election was set aside by the Allahabad High Court on June 12, 1975. J.P demanded her resignation in a huge public meeting on June 25, 1975. Instead of resigning Indira Gandhi declared an  Emergency in the night intervening June 25/26 1975 because of the turmoil and  incipient rebelling in the country. Thousands were detained throughout the country. The detentions were challenged by filing petitions in the High Courts. Nine High Courts out of 13 decided in favour of the detainees. In appeal in the  Supreme Court  ADM Jabalpur case (also known as Habeas Corpus case ) was decided on April 28, 1976. Four out of the five Judges, Chief Justice Ray, Justice Be , Justices Chandrachud and Bhagwati upheld the Government of India’s position. Only Justice Khanna dissented .In January 1977, Justice H.R. Khanna was  superseded as he was not made Chief Justice of India on his turn and he resigned to give way to Justice Beg to become the CJI.

 Mrs  Gandhi remained out of power from March 25, 1977 to  January 1980. The People’s Union For Civil Liberties (PUCL) was formed in November 1980 with a written Constitution which was entirely a different entity from the PUCLDR  formed four years previously on October 17, 1976 which functioned only for three months .

On her re-emergence after the fall of the Janata Government  Mrs Gandhi took up her unfinished task of having a “committed” judiciary which she wanted to accomplish during 1971-77. It was fully achieved with the help of the judgment of the seven Judges Constitution Bench of the Supreme Court headed by Justice Bhagwati by a thin majority of 4:3 in the S.P.Gupta case.

The question raised and decided in the case of S. P.Gupta was about  the question of supremacy, whether of the Executive on the one hand and the CJI and Chief Justices of the High Court on the other hand  in the matter of appointments of the Judges of the High Courts  as well as the Supreme Court . 

The fallout of S.P. Gupta was that the opinion of the CJI and Chief Justices of High Courts were totally ignored in the matter of appointment and transfer of judges and power had concentrated completely  in the hands of the corrupt Executive to the exclusion of the Judiciary , for a period of about 12 years the judges in the High Courts  and the Supreme Court were appointed by the corrupt Executive.

The judgment in S.P.Gupta came on December 30, 1981 which was overruled in the Second Judges case decided on October 6, 1993. The S.P.Gupta case went to the extent of holding that consultation by the President of India with the CJI in the case of Supreme Court, and CJI and Chief Justices of the High Courts in the case of appointment of High Court was only formal.

In the Second Judges case the Supreme Court held that the opinion of the Chief Justice of India for the purposes of Articles 124 (2) and 217 (1), so given has primacy in the matter of all appointments;  and no appointment can be made by the President  under the provisions to the Supreme Courts and the High Courts unless it is in conformity with the final opinion of the CJI formed in the manner indicated .

The Third Judges case came on a reference made by the  President of India under Article 143 of the Constitution of India. It was decided on October 28, 1998. Through this judgment the manner of appointment of judges through the Collegium system was introduced. It may be seen here that in the Second Judges case there was nothing at all to introduce a Collegium system.

Although a bare reading of the relevant provisions of the Constitution goes to show that the collegium system was not in accordance with the Constitutional scheme but it was generally welcomed. To begin with, the system seemed to work well. In early 1999, a large number of Judges were appointed in various High Courts and it appeared that all those appointments were made on the basis of objectively viewing the merit by the collegiums of the Supreme Court and various High Courts. These appointments were made to the satisfaction of all concerned.

However, not long  after its introduction it started appearing and an impression was gaining ground that the collegium system has derailed from its basic objective of choosing judges on the basis of merit. There were complaints that the merit had taken the backseat while considering or choosing a lawyer for judgeship and this  caused anger as well as frustration amongst those who were  deprived of the judgeship despite being eligible on the ground of merit. The majority of the  Bar members had become more vocal than they were in the past about the inadequacies in the appointment of judges.

The collegium of the Supreme Court and the High courts started recommending the names of the kith and kin of their fellow judges and Collegiums of the High Courts  also started recommending the names for appointment of judges on the suggestion of the Supreme Court Judges without judging their merits independently. This created a conflicting vested interest in the Bar which prevented a united agitation against the arbitrary manner in which the judges were being appointed.

Why and how did the collegium system got derailed from its basic objective of choosing judges on the basis of merit so soon after its introduction?

The reason appears to be that the judges appointed in various High Courts during the period the executive had the supremacy to appoint them (i.e. between December 30,1981 and October 6.1993) became senior judges in the Supreme Court and started becoming members of the collegium of the Supreme Court and the collegium of the various High Courts, so much so that when Justice V.N. Khare was the CJI the whole of the Supreme Court was packed with the judges who were appointed in post SP Gupta and pre Second Judges case, who had a different mindset being chosen during the period of the supremacy of the executive.

There was a lot of hue and cry  with this method of the appointment of  judges by the judges themselves.

Both the UPA as well as the NDA governments were and are taking advantage of  such adverse public opinion against the method of appointment by the  Collegium system  and tried to bring a Constitution amendment and a legislation to establish a National Judicial Commission for the appointment of the Judges in the High Courts and the Supreme Court.

Finally the NDA government brought Constitution (Ninety–Ninth) Amendment Act 2014 and   along with it National Judicial Appointment Commission Act 2014 by which  a Commission for selection and appointment and also transfer of Judges of the Higher Judiciary should be constituted  replacing the  prevailing procedure for appointment of Judges and Chief Justices of the High Courts and the Supreme Court of India , contemplated under Article 124 (2) and 217(1).

It was felt, that the proposed Commission should be broad based.

In that, the Commisssion would comprise of the members of the Judiciary, the Executive and eminent and important persons in public life. In this manner it was proposed to introduce transparency in the selection process. Fortunately a Constitution Bench by majority of 4 : 1 , set aside the Constitution (Ninety –Ninth) Amendment Act 2014 as well as the National Judicial Appointment Commission Act 2014 on October 16, 2015. Thus, repelling the gravest possible threat to the independence of judiciary. Chief Justice Kehar and his companion Justices thus secured for the time being at least the continued independence of the judiciary. Para 935 of the judgment of the Constitution Bench reflects the majority view. It reads as follows:

“ The sum and substance of this discussion is that mandatory consultation between the President and the Chief Justice of India postulated in the Constitution is by passed- bringing about a huge alteration in the process of appointment of judges; the Ninety- Ninth Constitution Amendment Act and the NJAC Act have reduced the consultation process to a farce- a meaningful participatory consultative process no longer exists; the shared responsibility between the President and the Chief Justice of India in the appointment of Judges is passed on to a body well beyond the contemplation of the Constituent Assembly; the possibility  of having committed judges and the consequences of having a committed judiciary , a judiciary that might not be independent is unimaginable.”

Setting aside the Constitution (Ninety-Ninth) Amendment Act 2014 and  NJAC Act  2014 was a fundamental and substantive set back to the Modi Government.  These two enactments were made with a motive to appoint judges convenient and to the liking of the executive so that in near future the Kesavanand Bharati case can be overruled and thereafterdrastic amendments in the Constitution be effected to legislate and allow the transformation (sic) of India into a Hindu Rashtra.

Tension between the judiciary and the Executive, or within the judiciary itself are nothing new. It has existed over the years since early 1970s, over matters like judge’s appointments or operational procedure etc.
The chain of events from the date of supersession of judges (April 25.1973) until the date of the retirement of Chief Justice of India, Deepak Mishra on October 2.10, 2018 show how there crept in a permanent and sharp division  in the judiciary as well as the Bar and a race amongst a section of senior judges to demonstrate who is more “Committed” (to the Executive), has begun then and is continuing even now.
This commitment to the Executive mindedness by the judges is best demonstrated while dealing  with the Constitutional validity of draconian laws.
Article 13(1) declares:- “All laws in force in the Territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this part , shall, to the extent of this inconsistency be void.

Article 13 (2) mandates that the “State shall not make any law which takes away or abridges the rights conferred by this part in any law made in contravention of this clause , to the extent of this contravention be void.”

Even after the Constitution came into force on January 26, 1950 , the government did not think that the continued existence of laws  in contravention of Article 13(1), were unconstitutional.
On the contrary, many of the draconian laws passed by the British to contain and repulse the struggle for independence  still continue  today and unfortunately the judiciary too continued with the colonial traditions , which can be illustrated by what happened in the case of A.K.Gopalan. Justice O.Chinnappa Reddy in his book, “The Court and the Constitution of India: Summits and Shallow” while dealing with the Gopalan case noted  :

“The Majority Judges appeared  to be still under the influence of the old colonial jurisprudence and oblivious to the fact that what they were expounding was the jurisprudence of a new Constitution for people who had just freed themselves from colonial rule . One wishes that they had kept in mind the admonition of Lord Atkinson J in Liversiege v Anderson .
             I view with apprehension the attitude of judges who on a mere question of construction when face to face claims involving the liberty of the subject show themselves more Executive minded than the Executive.” (emphasise mine)

Some of todays laws  are more draconian than the draconian laws enacted during the  British period. The Constitutional validity of all such draconian laws have been upheld by the Supreme Court except the latest enacted law in 2008 making drastic amendments in Unlawful Activities Prevention Act 1967 (UAPA)  incorporating all the draconian provisions of TADA and POTA.
The Constitutional validity of TADA was challenged in Supreme Court in Kartar Singh vs State of Punjab [ SCC (1994)(3) 569]. The judgment has been severely criticized by many distinguished  lawyers and jurists. According to K.G.Kannabiran, the Supreme Court upheld the validity of TADA “Virtually proceeding on the assumption that the act is more fundamental than the Constitution”. Thereafter the constitutional validity of POTA was challenged by the PUCL.
 Since POTA had similar provisions as TADA and since the grounds of attack in the Supreme Court in POTA were  almost the same as were argued in the case of Kartar Singh , the Division Bench upheld the Constitutional validity of POTA on the ground that the law laid down by the Constitution Bench in Kartar Singh was binding on the Bench of two judges.
The present situation is an inevitable result of Modi’s election campaign and his coming into power in  2014 . Recent years have witnessed systematic attacks on the human right defenders and the  fearless journalists.  Writers and rationalists, countering the dominant view of religion and progressive in their writings have also been violently attacked. Today any dissenting expression stands stifled. 

Three rationalists and thinkers Narendra Dhabolkar , Govind Pansare and M.M. Kalburgi and the eminent and fearless journalist Gauri Lankesh were murdered by unidentified people in the last three years, apparently by pro- Hindutva groups.  A number of incidents of lynching have occurred since 2014. According to a Reuters Report published in June 2017, a total of “28 Indians – 24 of them Muslims- have been killed and 124 injured since 2010 in cow related violence”.

About the attacks on human rights defenders Mathew Jacob in his note ‘Democratic space and the Regime’, recently published in “Dismantling India –A 4 year Report”. :
“Over the period 2015-2018,  Human Rights Defenders Alert (India ) (HRDA) has documented over 300 cases of attacks on HRDs across the country. HRDs and members of their families are facing threats to their personal and physical security. They are being profiled, harassed, intimidated, ill-treated and subjected to hateful abuse in the media. Their physical security and lives have been threatened in a systematic manner. They are arbitrarily arrested or detained and cases filed against them. Their offices raided and files stolen and confiscated. And in extreme cases, they are tortured, made to disappear or even killed. HRDs are the victims of State repression, often charged with fabricated cases with instances of state manipulating the judiciary”.

The above mentioned 300 cases of attacks on HRDs are over and above ten activists and eminent citizens who were arrested under UAPA in connection with Bhima-Koregaon clashes by the Pune police, controlled by the Home Department of the BJP-led State governments in Maharashtra . Five of them were arrested , in June 2018. They are Surendra Gadling, General Secretary of Indian Association of People’s Lawyers from Nagpur;  Professor Shoma Sen Head of Department of English , Nagpur University; Sudhir Dhawale Editor of Marathi Magazine , Vidrohi from Mumbai; Rona Wilson Public relation Secretary, Committee for the release of the political prisoners, ( CRPP); and Mahesh Rout, Anti-Displacement activist from Bharat Jan Andolan. The other five were arrested on August 28, 2018  in simultaneous raids conducted in multiple cities across the country on the pretext of investigating Koregaon Case- Sudha Bharadwaj in Faridabad, Varavara Rao in Hyderabad , Gautam Naulakaha in New Delhi and Vernon Gonsalves and Arun Ferreira in Mumbai.

The Pune police has claimed that all these five persons were “Urban Naxalites” who had links with the Left-Extremists Communists Party of India ( Maoists) and were in the process of creating large scale violence, destruction of property resulting in chaos. Against the detention of five persons arrested on August 28, 2018, the PIL petition was filed by 5 eminent citizens of the country including the eminent historian Romila Thapar and 4 others, in which the 5 persons arrested also joined as petitioners has been disposed off by the Supreme Court on October 28, 2018 .
 In the situation as it exists today it seems difficult to successfully challenge the Constitutional validity of UAPA.

Be that as it may. The Constitutional validity of UAPA must be challenged by asking the Supreme Court that Kartar Singh case upholding the validity of TADA by the Constitution Bench has been wrongly decided and the matter of Constitutional validity of UAPA should be decided by constituting a Larger Bench .

We must rest thus battle in the hope that, at this juncture, withinthe composition of the Supreme Court there may not be many Judges who are in the race of showing them as “Committed”.
I conclude this note with the following quote :

The Constitution does not work by itself: It provides that any law which abridges or abrogates fundamental rights shall be void. But laws don’t carry on their forehead the mark that they are invalid . When a person is preventively detained under an illegal law, the fact that it has vitiated the Constitution does not help you , unless by an appropriate remedy, he can get out of jail. Nor are laws self executing. It is left to the Executive to administer law and that is where the most serious problem arises.”

(H.M.Seervai at a public meeting held in the Bombay University Convocation Hall on AUG 20 ,1982 under the auspices of the People’s Union for Civil Liberties)

(Published in PUCL Bulletin October 1982)

(The author is a renowned civil libertarian, associated with the People’s Union for Civil Liberties and a senior advocate in the Allahabad High Court)



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