Protector of the democratic citizen

Analysis

for the record

Pre-requisites of freedom, Part-I

Protector of the democratic citizen

At the height of Emergency, when the Opposition was in jail, the Government pushed through the notorious 42nd amendment, sought to widen the ambit of Article 31(C) and to substantially curb individual freedom. In the darkest hour of Indian democracy, constitutional lawyer Nani A Palkhivala rode to the rescue of the citizen, arguing that Parliament had no power to override the basic structure of the Constitution. The Government backed down and Palkhivala saved the liberty of all Indians. In his Nani Palkhivala Memorial Lecture, 2005—reproduced here in four parts—Arun Shourie shows how Palkhivala rose time and again to guard the rights of the citizen and how the strength of individual character can often stand as a bulwark against a rampaging state:

Arun Shourie

Nani Palkhivala’s life was marked by total commitment to our country, to the public weal. In the first lecture in this series, Mr Fali S Nariman recalled what we owe him: the dyke of Basic Structure, no less: in Golaknath; in Keshavananda; in the absolutely unparalleled, and yet unequalled achievement of getting the Chief Justice to dissolve the Bench he had constituted during the Emergency to overturn the Keshavananda decision; in getting the Court to strike down in Minerva Mills the provision introduced into Article 31(C) during Emergency that no legislation passed either by Parliament or a state legislature could be challenged so long as it said, it merely said that the law had been enacted to implement a basic principle of state policy. Dark times, times when ‘a word is a deed’ Each of us could add a number of instances to Mr Nariman’s list of the debts we owe Mr Palkhivala. I would recall just two or three—to illustrate the deep commitment that Mr Palkhivala had to first principles, to fundamentals, a commitment we must imbibe. Mr Palkhivala was to defend Mrs Gandhi against the verdict of Justice Sinha. Literally on the eve of the hearing before the Supreme Court, the Constitution was changed by the 39th Amendment. The designations of the President, Vice-President and Speaker were thrown in—but the target was only the case against Mrs Gandhi. We really should recall what was done to see what gets done in the name of principle and the people. The 39th Amendment provided: 1. The election of a person who at the time of the election or thereafter is appointed Prime Minister shall not be called in question ‘‘except before such authority...or body and in such manner as may be provided for by or under any law made by Parliament and any such law may provide for all other matters relating to doubts and disputes in relation to such election including the grounds on which such election may be questioned’’. 2. ‘‘The validity of any such law...and the decision of any authority or body under such law shall not be called in question in any court’’. 3. ‘‘Where any person is appointed as Prime Minister...while an election petition...in respect of his election to either House of Parliament or, as the case may be, to the House of the People is pending, such election petition shall abate upon such person being appointed as Prime Minister...’’. The diabolic and conclusive clause 4. ‘‘No law made by Parliament before the commencement of the Constitution (Thirty-Ninth Amendment) Act, 1975, in so far as it relates to election petitions and matters connected therewith, shall apply or shall be deemed ever to have applied to or in relation to the election of any such person...and such election shall not be deemed to be void or ever to have become void on any ground on which such election could be declared void or has, before such commencement, been declared to be void under any such law and notwithstanding any order made by any court, before such commencement, declaring such election to be void, such election shall continue to be valid in all respects and any such order and any finding on which such order is based shall be and shall be deemed always to have been void and of no effect’’. 5. ‘‘Any appeal or cross-appeal against any such order of any court as is referred to in clause (4) (the preceding sub-para) pending immediately before the commencement of the Constitution (Thirty-Ninth Amendment) Act, 1975, before the Supreme Court shall be disposed of in conformity with the provisions of clause (4)’’. Mr Palkhivala returned the brief. Then followed the notorious Swaran Singh Committee’s proposals to recast the Constitution. In an article marked by his trademark reasoning and courage, Mr Palkhivala took the so-called report of this so-called Committee apart—proposal by proposal. In particular, he demolished the claim on the basis of which everything was being done...‘‘This theme constitutes not only defiance of the law laid down by the Supreme Court but is insupportable on first principles,’’ Mr Palkhivala argued. If Parliament has the power to destroy the fundamental principles of our polity, he wrote, it would cease to be a creature of the Constitution, it would become supreme over the Constitution. As so much is even today claimed on behalf of legislatures—to say nothing of individual legislators, and also because the passage contains a seed to which I shall return, permit me to recall what Mr Palkhivala wrote in this regard, and please remember that this was at the height of Emergency when everything was being justified on the ground that it had been sanctioned by Parliament: ‘‘As regards constitutional amendments, Parliament’s will is certainly not the people’s will. To equate Parliament with the people is to betray complete confusion of thought. In choosing their representatives, the electorate takes into account a number of factors which have nothing to do with constitutional amendments. This has been proved time and again in countries where the people’s will is ascertained on a referendum held upon Parliament’s proposal to alter the Constitution.’’ The nefarious 42nd Amendment was enacted nonetheless. Again, at the height of oppression, Mr Palkhivala articulated a devastating critique of the provisions. In particular, he showed how the new provisions fell afoul of the Basic Structure doctrine that the Supreme Court had laid down. He argued against the axe that had been wielded to cut the powers of the judiciary. Mrs Gandhi told the Lok Sabha that the power of Parliament to change the Constitution is an ‘‘unfettered, unqualified and unabridgeable right’’. She declared that the Basic Structure doctrine is an invention of judges. ‘‘What is the Basic Structure?’’ asked one of her acolytes of that time, Siddhartha Shankar Ray. ‘‘What are its contents, ingredients? Has the Constitution defined what is basic and what is not? Is there any part of the Constitution that is so sacrosanct that it cannot be taken away? There is not a single authority throughout the country’’—please pause and consider what he is saying, ‘‘There is not a single authority throughout the country’’; the Supreme Court is thus no authority at all—‘‘who has suggested that there are certain basic features in a Constitution.’’ The new provisions were advocated in the name of the people, of course—on the ground that they were necessary for upliftment of the downtrodden. But there is no socio-economic policy that is impeded by the human freedoms that are enshrined in our Constitution, Mr Palkhivala argued. In particular, Mr Palkhivala argued against the provisions which pared down the judiciary. The new provisions, Mrs Gandhi declared, are merely going to ‘‘re-establish harmony between the legislature, executive and the judiciary as originally provided in the Constitution’’ which had been disturbed by that ‘‘invention of judges’’, the Basic Structure doctrine. ‘‘We are removing the cobwebs created by some recent attempts of the judiciary to encroach into policies and legislative spheres. We are reasserting—(note the words that follow)—the sovereignty of the people and pointing out that everything else, including the Constitution, is for the people. We are trying to end, once and for all, some needless controversies which stood in the way of quicker progress.’’ Words whose echoes we hear today, as we shall soon see. During discussion of the 42nd Amendment itself, the Government told the Rajya Sabha that it would undertake a review of the entire judicial system and recast it. The reason? Because, the Law Minister told Parliament, the present judicial system is neither ‘‘in tune with our national genius nor with the aspirations and expectations of our people’’. He developed Mrs Gandhi’s theme about restoring harmony, and declared, ‘‘It will be a bad day for the judiciary if this’’—the ‘‘confrontation’’ that the judiciary had engineered by laying a limit to the power to mutilate the Constitution—‘‘It will be a bad day for the judiciary if this recurred now after this Amendment.’’ Of course, he had no intention to denigrate judges, the Law Minister told the Lok Sabha. ‘‘All that I was trying to do was to emphasise that the judges have to be in tune with the movement of the times and with the felt necessities of the times. If that does not happen, it is not that the people can be held back, but the judiciary would come into disrepute. It is to prevent that thing from happening’’—how touching: he and the Government are cutting the judiciary down only for the sake of the judiciary itself—‘‘that I and many of us emphasised in our speeches that we wanted the judges to understand what the people demand and keep in tune with what the people want.’’ In the Rajya Sabha the Law Minister embellished this concern for the judiciary. He declared that it cannot be that ‘‘the Constitution is what the court says it is’’. The records show, he said, that in every important matter the judiciary has ‘‘transgressed’’ its limits. It is against such dangerous drivel that Mr Palkhivala raised his voice. It is from the ruinous consequences of such pernicious claims that Mr Palkhivala’s erudition and courage saved us. And the episodes, and Mr Palkhivala’s conduct through them illustrate the first prerequisite of freedom. In the end, everything turns on the individual. And in the individual, there is no substitute for character. For at that critical moment—that moment when you are to appear in the Supreme Court, and the previous day the law has been changed by and in favour of your client—all will be lost if at that critical moment we relapse into thinking, into calculating ratios, into weighing pros and cons. Instinct, character alone will determine whether we will use the new law to win the case and thus notch up another ‘‘victory’’, or, as Mr Palkhivala did, return the brief. Camus put the point well in The Fall: ‘‘...Without slavery, as a matter of fact, there is no definitive solution. I very soon realised that. Once upon a time, I was always talking of freedom: At breakfast I used to spread it on my toast, I used to chew it all day long, and in company my breath was delightfully redolent of freedom. With that key word I would bludgeon whoever contradicted me; I made it serve my desires and my power. I used to whisper it in bed in the ear of my sleeping mates and it helped me to drop them. I would slip it...Tchk! Tchk! I am getting excited and losing all sense of proportion. After all, I did on occasion make a more disinterested use of freedom and even—just imagine my naivete—defended it two or three times without of course going so far as to die for it, but nevertheless taking a few risks. I must be forgiven such rash acts; I didn’t know what I was doing. I didn’t know that freedom is not a reward or a decoration that is celebrated with champagne. Nor yet a gift, a box of dainties designed to make you lick your chops. Oh, no! It’s a choice, on the contrary, and a long-distance race, quite solitary and very exhausting. No champagne. No friends raising their glasses as they look at you affectionately. Alone in a forbidding room, alone in the prisoner’s box before the judges, and alone to decide in face of oneself or in the face of others’ judgment....’’