The Hindu : Opinion / Leader Page Articles : There was no hidden agenda, Mr. Nariman

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Tuesday, Jun 28, 2005

Opinion

Opinion - Leader Page Articles

There was no hidden agenda, Mr. Nariman

V.R. Krishna Iyer

Why the Bench constituted to reconsider the basic structure doctrine in tune with the values of the secular, socialist, democratic republic was dissolved abruptly is still unclear.

FALI NARIMAN, the Everest of the Indian Bar, appealed to me, in the course of a beautiful address delivered under the auspices of the Krishna Iyer Foundation of Law, to write my autobiography for the public to know many matters of democratic significance so as to bring to light judicial secrets which I alone, among living judges, knew (according to him). The Judiciary is the most powerful, least dangerous, most transparent, least secretive sanctuary of humanist, compassionate curial process and people's justice. The right to know the functional openness, beyond intrigues, of judicial operations is a human right. No mystery please, was Mr. Nariman's statesmanly stance.

He cited an instance of such a `secret' to justify his request. He referred to the Golaknath ruling by a Bench of 11 judges that stressed the inalterable and unamendable paramountcy of fundamental rights. Not long later, in the Kesavananda Bharati case, a larger Bench of 13 judges overruled Golaknath without a tear but expounded another riddle-ridden doctrine — the basic structure of the Constitution — without precedent or precision, and with the immediate objective of latifundist, feudalist strangling of agrarian reform law which the Legislature had enacted. Certainly, it was not the deliberate design of the judges who, by their oath, are defenders of social justice.

What can the nation or the Bar do if the apex court has a fancy to `sip every flower and change every hair'? Anyway, the basic structure doctrine, a constitutional serendipity and Bench discovery, remained vague, vagarious and jurisprudentially jejune, being the uninhibited product of judicial ipse dixits. Prime Minister Indira Gandhi, who probably had — in her socialistic legislative populism or finer vision — well-meaning nationalisation schemes and public sector progressivism that would suffer judgocratic victimisation, was seared by possible authoritarian anti-socialism of some senior Lordships, now armed with an ill-defined, even dubious power to strike down every unorthodox legislative measure, using the arcane basic structure `V weapon', a curial invention no one except the Indian Supreme Court could reveal or use. If the rule of law be vulnerable to judicial ukase, statutory exercises could become the vanishing point of jurisprudence. This apprehension had worried even the great Chief Justice Gajendragadkar when Kesavananda was being argued. At that time, he was Chairman of the Law Commission and I was a favourite member.

It was in this background, plainly for clarification, sensitisation and elimination of arbitrariness, the then Attorney General, Niren De, an assertive advocate and a nationalist jurist, moved Chief Justice A.N. Ray to reconsider the Kesavananda vagary in tune with the values of the secular, socialist, democratic republic. The CJI did constitute such a Bench in a case the Attorney General wanted to argue. Law had to be certain and its scope understandably beyond doubt. It cannot be a judicial riddle, a hidden agenda of the `robed brethren' which may reflect their predilections, class bias and unwittingly grant a holiday to the values of the Preamble, Part IV (and Part IV A).

I must express a tragic obiter that since 1991, the New World Economic Order has re-colonised Bharat and other Third World countries; and compliant Indian Prime Ministers and Finance Ministers plus other willing victims of multinational corporations have promoted privatisation (Nobel Prize winner and former World Bank policy maker Stiglitz calls this operation `briberisation') and demolished the public sector that was built over the decades from Nehru to Indira Gandhi and other national leaders who took seriously to the socialistic-democratic adjective in the Constitution. All swadeshi and self-reliant institutions underwent a traumatic, toxic, disinvestment process, devaluation and import invasion. This coup of 1991 is unconstitutional and violative of the `basic structure' and people's fundamental rights are on peril. But the court, whatever its class interest, has aggravated educational costs plus price hikes by its latest rulings. The right to life of the masses is now an illusion. In short, the highest court has forgotten its basic structure doctrine which certainly includes the judicial imperative of upholding the socialistic, democratic character of our republic.

The Indian Judiciary's social philosophy is no exception, and power without challenges and accountability tends to make this instrument authoritarian. The `basic structure' innovation, innocent at first sight and vesting a non-negotiable monopoly of interpretative jurisdiction in the apex court, truncates parliamentary democracy. The subconscious element in the judicial process depends on the mores of the day governing their social life, says Justice Cardozo. Arbitrary power, even in the hands of the highest court, is a menace to human rights, more so if the area is naked jurisprudence. So the Attorney General's desideratum asking for judicially well-defined boundaries and clarity of conceptual content of what has come to be known as the basic structure of the Constitution was fair and reasonable.

But a court decides on a dispute, not on whatever it fancies deserves to be settled or declared, whether it arises in a particular litigation before it or not. Otherwise, no Executive can function, no Legislature can debate for fear that a writ will undo everything using basic structure jurisprudence, even if no case pends challenging the offending action allergic to the orthodoxy or class anathema of their `Lordships'. The Supreme Court has this limitation on jurisdiction. Therefore, when the Attorney General submitted to the Court to pronounce on what falls within the immutable constitutional space covered by the doctrine of basic structure, Nani Palkhivala raised a fundamental preliminary objection that the case which was being heard did not at all involve, by any stretch of imagination, the question of basic structure and the Court should not, in this case, take upon itself the burden of adjudicating it.

Hearing him at some length — we were 13 or 15 listening patiently — I was inclined to the view that the objection merited serious consideration. As we rose, retiring for the day to reassemble the next day to continue arguments, I told Justice Mathew about my tentative response to Palkhivala's submissions. I confided in him my opinion that the question of basic structure did not appear to arise in this case and the point raised by Palkhivala needs weighty consideration. I did not tell him what the reaction of any other member on the Bench was. We left for home to meet in the chambers of the Chief Justice the next morning as was our wont. Maybe, the CJI was inclined to a contrary view, like Justice Mathew. I can appreciate the judicial inclination to put an end to the uncertainty of the basic structure jurisprudence, so that Parliament may know where the Constitution inhibits its legislative exercise. But that had to be done not at random in a litigation where the question is altogether alien.

A misunderstanding?

However, my individual response to the Palkhivala contention was perhaps misunderstood by Justice Mathew; for, I gathered — whether it was accurate information or a mere guess work is not beyond doubt — that Justice Mathew told Chief Justice Ray that I had ganged up a number of judges on the Bench to my pro-Palkhivala view. It looks as if this first flush opinion expressed to Justice Mathew by me, which was unwittingly exaggerated by him into a gang up conclusion, infuriated the Chief Justice. The next morning when all of us gathered, as usual, in the Chief Justice's chambers his face expressed his indignation. In impatient irritation, as it were, he remarked `that everything was in the air' so far as the part heard case was concerned. Then all of us moved on to the Bench and took our seats with appropriate decorum. The Bar was full in the hall and suspense prevailed when the case was called. Immediately, the learned Chief Justice announced with authoritative brevity that the Bench was being dissolved and thereby put an end to the hearing. All of us rose, returned to our chambers to proceed with other cases assigned to us.

How Justice Mathew, without any further discussion with me, came to the unwarranted view that I had ganged up other colleagues with me, I do not know. It is still a mystery inside an enigma. Or was there some missing element which I was not aware of, especially because the Chief Justice for whom I had reverence had not asked me a word about my view of the case? This is the story of the dissolution of the Bench and the Keshavananda ruling surviving without its uncertain frontiers spelt out.

Even now, ad hoc Benches of the Supreme Court, from time to time, hold with none to question or correct their pronouncements. When the fundamental law of the land had secret dimensions the highest court incarnates as an imperium in robed authority. This is an unhappy imbroglio.

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