Amending power is unique'

Interview with T.R. Andhyarujina, Senior Advocate in the Supreme Court.

TEHMTAN R. ANDHYARUJINA, a Senior Advocate in the Supreme Court of India, faced a lot of criticism from his colleagues, especially Soli J. Sorabjee, who was a junior to Nani Palkhivala during the hearing of the Kesavananda case, that his latest book, The Kesavananda Bharati Case: The Untold Story of Struggle for Supremacy by Supreme Court and Parliament, was a wasted effort. The former Solicitor-General took the flak in his stride, saying, The purpose of my book is only to give a historical account of how the basic structure doctrine came to be established in our constitutional law. Excerpts from an interview he gave Frontline:

Your book suggests that the inviolability of the basic structure doctrine was a dubious view of the majority of the Kesavananda Bench. What should have been the ratio of that judgment?

Extracting the ratio from the 11 judgments should have been the task of either the 13-judge Bench or a subsequent Bench. It is difficult to say what would have been the ratio on a proper judicial exercise. Had that exercise been done, there may not have been a majority holding that there is a limitation of the basic structure of the Constitution in amending the Constitution. There was no majority for any implied limitation on the amending power as Justice [H.R.] Khanna had rejected the implied limitations on the Constitution. What would have been extracted as the ratio of the Kesavananda case by a later Bench is a matter of speculation. This difficult exercise was purposely avoided by Chief Justice [S.M.] Sikri when he created the so-called View by the Majority note and passed it around for signatures of the judges on April 24, 1973.

In the concluding chapter, you concede that the basic structure doctrine is so deeply enshrined in our constitutional law that it would not be shaken even by the knowledge of the process by which it came to be formulated. What then is the purpose of the book, if it is not to make readers question that long-held belief?

It is correct that the basic structure theory has become an axiom of our constitutional law and one cannot imagine any Bench of the Supreme Court annulling that theory. It is also true that for whatever reason and method the majority view was arrived at, the axiom of unamendability of the basic structure of the Constitution has had a salutary check and control on the amending power. The purpose of my book is only to give a historical account of how the basic structure doctrine came to be established in our constitutional law. After this case, Parliament and the government gained by different approaches on its social and economic policies, which the court did not interfere with merely because some fundamental right was perceived to be violated. In that sense, the judgment served a useful purpose to society.

Can you explain how the then government sought to appoint judges before the hearing of the case?

After the Golaknath case, the government took a predominant role in the appointment process. By and large the new government nominees, though men of eminence and distinction, decided in favour of the unlimited power of Parliament except Justice A.K. Mukherjea. After Golaknath, the initiative came from the government. Justice Sikri was initially reluctant to appoint Justices [M.H.] Beg and [S.N.] Dwivedi. The government prevailed upon him. He selected Justice Khanna. The government accepted it. The relations between Justice Sikri and Indira Gandhi were also strained.

Justice Sikri had to choose 13 out of the then total strength of 15 judges to hear the Kesavananda case [the earlier relevant case, Golaknath, was decided by 11 judges and the Kesavananda Bench had to be bigger than that]. There were just two remaining judges who did not have a long tenure: Justice [V.] Alagirisamy and Justice Inder Dev Dua. But their tenure could have been extended in the form of ad hoc judges [and could have been chosen to be part of the Kesavananda Bench to replace Justices Sikri and J.M. Shelat]. The general practice is when your view is being reviewed, propriety requires that you recuse yourself from the Bench. But nobody raised objections [against Justices Sikri and Shelat being on the Kesavananda Bench because they were earlier part of the majority judges on the Golaknath Bench].

You mention that there was a move to exclude Justice Beg, a pro-government judge, from the Bench after 66 days of hearing on his hospitalisation. Who was behind this move?

It is unfortunate that a strong attempt was made by the petitioners and the CJI [Chief Justice of India] to exclude him on his third and last illness. His exclusion would not have changed the number of the majority, as the majority would have still prevailed with 7:5 instead of 7:6. In a case with such political overtones, the [likely] exclusion of Justice Beg at the last moment created tensions. It was felt that if the case was adjourned for the return of Justice Beg, the case would have prolonged beyond the retirement of CJI Sikri and the whole effort of the 13-judge Bench would have come to naught. Therefore, the petitioners and the CJI wanted to drop Justice Beg from the Bench and proceed as if there were 12 judges. The illness of Justice Beg at the crucial moment was interpreted as some sort of a game plan of the government to put an end to the case. The petitioners believed that it was a move to favour the government. As a result, Justice Beg was retained on the Bench, with Palkhivala being asked to give written submissions. It was a serious illness, but the question was whether his illness would go beyond the tenure of Justice Sikri.

The Attorney-General had threatened to walk out if Justice Beg was dropped. [H.M.] Seervai supported him. Without one judge on the Bench, the legitimacy of the judgment would have come into question. Palkhivala, therefore, submitted to the government's wish, and agreed to close his oral arguments on the 66th day.

By signing the View by the Majority note, did the neutral judges not apply their minds? You suggest that some of them reluctantly signed it because of constraints of time as Justice Sikri was due to retire.

The only judge who said that he signed the View by the Majority note to accommodate Sikri was Justice Y.V. Chandrachud. The rest of the judges, except Mukherjea, were by and large committed to the view of Parliament not having the amending power to change the basic structure. It would not have made any difference to the ultimate result, as at least five of the judges were clearly in favour of limiting Parliament's amending power, and, one judge, Justice Khanna, was in favour of limiting its powers only on the grounds of basic structure. The absence of judicial conference does not invalidate the judgment. The view by the majority cannot be considered invalid because of the absence of a judges' conference [preceding it], but it had become dubious because it was a hurriedly prepared paper passed on for signatures just before the judgment was delivered.

You have also claimed that the then government was in possession of some of the draft judgments before they were delivered. What was the basis of this claim?

The government decided on the supersession of judges even before the judgment was delivered in open court. Kuldip Nayar, in his book, says that Chief Justice Sikri queried Justice Beg. Justice Dwivedi said [after his appointment] that he was going to the Supreme Court to reverse Golaknath. Justice Beg was the nominee of Indira Gandhi. The government had advance notice of the views of the judges. Justice Mukherjea, Justice P. Jaganmohan Reddy, Justice Chandrachud and Justice Khanna did not give the impression of being one way or the other. They appeared to be uncommitted. So, they would tilt the balance. Justice Reddy, on his own, came to more or less the same conclusion as the Sikri-led judges.

Justice Mukherjea wrote a joint judgment with Justice Hegde. Justice Khanna took a midway position. Justice Chandrachud was perceived by the petitioners to be in favour of limiting the amending power by some of his statements in the court, and the fact that he had been invited by Justice Sikri to the only judicial conference of like-minded judges. Therefore, his writing a judgment in favour of Parliament was a great surprise. This gave rise to the rumour that he had been influenced by the then Law Minister H.R. Gokhale and retired Chief Justice Gajendragadkar [a family friend of Chandrachud]. Justice Chandrachud later said that he was entitled to change his views. He denied that he was influenced by Gokhale and Justice Gajendragadkar.

Why did Chief Justice A.N. Ray dissolve the 13-judge Bench to review the Kesavananda judgment within two days of its constitution in 1976? You have speculated on the reasons, like his isolation on the Bench, Palkhivala's letter to the Prime Minister on the eve of the hearing protesting against the move, and so on. Can you elaborate?

I think the 13-judge Bench was constituted by Justice A.N. Ray to review the Kesavananda case without any judicial order and there was no indication why the case was required to be reviewed. This was the strongest reason advanced by Palkhivala. On this point, neither Chief Justice Ray nor Attorney-General Niran De was able to give a convincing answer. And from the observations of other judges, this question was a worrying one. Therefore, in my view, Ray could not carry the majority with him to review the Kesavananda case, and on the third day, he felt compelled to dissolve the Bench without any reason.

How would you interpret Justice Ray's legacy?

Chief Justice Ray's acceptance of the CJI post is often misunderstood. It was not he who manoeuvred it but the government. After knowing the views of the judges who were going to decide against Parliament, the government decided that the next CJI should not be a judge from among those judges. It is now known that the government even asked Justice K.K. Mathew whether he would accept the position of the CJI. But he declined. Chief Justice Ray himself was reluctant to be the CJI in such a controversial way, but he was told that if he did not accept the position, the government was determined to go down the line and appoint any other judge who would consent to be the CJI. Therefore, Justice Ray accepted the position with reluctance.

Your mentor H.M. Seervai changed his view after the Emergency that the doctrine of basic structure was required for Indian democracy as without it many of the abuses of power during the Emergency could not have been reversed legally. Do you similarly support the doctrine now, even while legally questioning its birth?

In the Kesavananda case, it was argued that the amending power could be abused. It was not an unknown fact. But that could never be the reason for cutting down any power. Seervai changed his view for personal reasons. Today, after 38 years, one can say that as a matter of political argument a check on the amending power is always to be welcomed. In other countries, the amending power is not subjected to such judicial constraints, except in Bangladesh. Any power is capable of being abused and the fact of the abuse is never a ground for limiting the governing power.

The difficulty in ascertaining the basic structure is that it is a highly nebulous and subjective standard. It gives a vital power to the judiciary, which was never contemplated by the Constitution makers. It is true that Parliamentary and executive misuse is something that requires judicial correction and which is done in the normal course. But the amending power is a unique power, which cannot be compared with the ordinary legislative or executive power. The amending power is a quasi-political power and its validity may not be within the domain of the executive, which is a view taken in most jurisdictions of the world, including, Malaysia, Sri Lanka, Pakistan and South Africa. It is a unique power to create the Constitution. Judges are bound by the Constitution.

All constitutional cases, in a sense, are political. In the Kesavananda case the external political forces operated for over 66 days, and in that sense it was not a normal, constitutional case deciding political issues.