1,10,806 people were detained without trial during the emergency. Normally, this would go against the most fundamental of our constitutional guarantees. However, at the height of the Emergency, four judges of the Supreme Court held that an individual so detained, would have no remedy. Justice H R Khanna was the only judge that held otherwise. He knew fully well what the consequences of his decision were. In his autobiography, Justice Khanna recalls telling his sister – “Santosh, I have prepared a judgment which is going to cost me Chief Justiceship of India.”
Saturday, 28 April marked 42 years of that Judgment. With dark crowds hovering over our judicial system once again, today is a good day to recall how perilously close we once were to becoming a paper democracy.
The Indira Gandhi Era
The 1970s saw multiple constitutional amendments made solely to overcome Supreme Court decisions. In Kesavnanda Bharati (1973), the Court recognized the Parliament’s limited power to amend the Constitution. It held that no majority could destroy the Constitution’s ‘basic structure’. In doing so, seven judges of the Court, resisted open threats from the regime of the day. Nani Palkhivala records:
“During the hearing ... the Attorney-General appearing for the Union of India and the counsel for some States expressly referred in open Court, both orally and in writing, to the alternative of "political action" if the Supreme Court's rulings did not find favour with the government.”
Kesavnanda was delivered on April 24, 1973. Indira Gandhi responded the next day. The government announced the appointment of Justice A. N. Ray as the Chief Justice of India. He was given preference over three senior judges - judges who had adjudicated in favour of the basic structure. The supersession of judges provoked outrage. However, the message to the judiciary was loud and clear – behave or else.
During the Emergency (1975-77), the Court survived because it did not confront Indira Gandhi directly. A number of judges began interpreting the Constitution in light of the new political climate. Justice V R Krishnaiyer granted a conditional stay against the operation of the Allahabad High Court judgment, which had invalidated the election of Prime Minister Gandhi. He also went on to observe that the prime minister had committed no "graver electoral vices" under the "draconian" provisions of the Representation of People Act. "Draconian laws," he added, "do not cease to be law in courts but must alert a wakeful and quick-acting legislature."
This message on how to proceed was received quickly by Mrs. Gandhi. The Parliament passed the 39th amendment (Article 329A) to the Constitution. The amendment validated the Prime Minister's election. It also placed certain electoral laws beyond the realm of judicial review. The Supreme Court upheld Mrs. Gandhi's election on November 7, 1975, under the retroactively changed electoral laws. However, it struck down Article 329A(4) as ultra vires.
Judges who did muster the courage to go against the executive diktat were suitably dealt with. In September, 1975, the Delhi High Court ordered the release of Kuldip Nayar, editor of the Indian Express, who had been arrested during the emergency. The judgment reaffirmed the courts' right to review detention cases, even under emergency rule. It also observed that the authorities were required to satisfy a court of the need for detention. The government was understandably miffed. Justice Rangarajan, who wrote the judgment, was transferred to Sikkim. The executive also refused the permanent appointment of Justice R N Aggarwal, the other member of the two-judge bench. He was reverted to the Sessions court, from where he had been elevated. There are dozens of similar instances from the period.
The Case of Justice KM Joseph
Justice K M Joseph is currently the senior-most Chief Justice of a High Court in terms of experience as Chief Justice. He has served two years more as Chief, than any of the other current Chief Justices of the High Courts. One would recall that as Chief Justice of Uttarakhand, Justice Joseph had struck down a proclamation of President’s rule in the State in 2016. The consequences are now there for all to see.
In May, 2016, Justice Joseph (having undergone a bypass surgery), had requested for a transfer to the Andhra Pradesh and Telangana High Court, on medical grounds. This Collegium on its part, recommended the transfer. However, the file remains pending with the union government even today.
In January this year, the Supreme Court collegium recommended the names of Ms. Indu Malhotra (now, Ms. Justice Indu Malhotra) and Justice K M Joseph for elevation as Judges of the Supreme Court. After sitting on the recommendation for three months, the government cleared the appointment of Ms. Malhotra. Justice Joseph’s recommendation has been sent back for reconsideration.
Shorn of legalese, the law minister’s letter rejecting Justice Joseph’s recommendation makes two points. It says that Justice Joseph is not the senior-most judge in the all-India seniority list. Second, it says that the Kerala High Court already has one Supreme Court Judge and three Chief Justices of High Courts representing it. Neither of these arguments hold much water. In fact, both seem to have been taken with a view to somehow stop or delay Justice Joseph’s elevation to the Supreme Court.
The Supreme Court Judgment in the 1998 presidential reference makes it clear merit trumps seniority, in case of appointments to the Supreme Court. In fact, the current Supreme Court has a few judges who are junior to many High Court judges. Regional representation too has never been a major concern. The current Supreme Court for example has at least five judges (including two appointments from the bar) from the Bombay High Court, at least three are from the Delhi High Court. To say that Kerala can’t have two judges on the court is to stretch a point. In any event, Justice Kurian Joseph, currently the only Kerala Judge in the Supreme Court is set to retire in November.
What Next?
The blocking of Justice Joseph’s elevation to the Supreme Court strikes at the heart of judicial independence. It is also one of the tell-tale signs of creeping executive authoritarianism – assuming that it still qualifies as ‘creeping’ at all. It is now for the collegium to take a call. As per the Judgment in the 1998 presidential reference, if the Collegium unanimously reiterates the name of Justice Joseph, the Centre is bound to accept.
Whether either the Collegium or the union government does so, remains to be seen. Only this week, the Centre refused to confirm the appointment of Justice Ramendra Jain to the Punjab and Haryana High Court, despite the Court reiterating its recommendation to that effect.
Our constitutional structure is as frail as it is robust. Ultimately, it is a web of relationships grounded in a moral compact – ‘constitutional conventions’ as they have been come to be called. Political attacks on judicial independence are known all over the world.
In a 2006 speech delivered at the Georgetown University, Justice Sandra Day O'Connor (the first woman Judge on the US Supreme Court), expressed her concern about the efforts of those who would strong-arm the judiciary into adopting their preferred policies. “It takes a lot of degeneration before a country falls into dictatorship," she said, "but we should avoid these ends by avoiding these beginnings."
The warning signs are there for all of us to see. The question is: do we have the will to protect the Constitution and the Court, that for so long has protected us? The ball’s in the Supreme Court.
The authors are lawyers who practise in the Supreme Court. They tweet @sanjayuvacha & @parahoot