Landmark changes to the Constitution from 1967 have shaped India’s political discourse. Our courts have not only upheld public interest but have also stood for protecting rights of the citizens
The year 1967 was a landmark in the political history of India. Reflecting after almost 60 years, a chain of events, which had a strong impact on the politics of the years following, unfolds. Elections to the fourth Lok Sabha were held in the aftermath of the 1966 devaluation of the Rupee and perhaps when the food crisis was at its worst. The benefits of the green revolution were nowhere in sight as they would accrue only after 1969. The level of general dissatisfaction was manifest in the fact that the ruling Congress had lost 70 seats in the Lok Sabha and at 283, came perilously close to the halfway mark. The gainer was the Swatantra Party, dominated by erstwhile rulers and under the influence of extreme Right-wing. With almost 50 seats, it ended up as the second largest party in Parliament. Simultaneously, the Congress, too, lost power in seven States where it faced Governments formed by the Opposition and fragile coalitions.
This led to a power struggle within the party, with the organisational wing trying to assert itself. In 1966, while promoting Indira Gandhi to the leadership, they had thought it to be just a stop-gap arrangement but things had changed. For the first time, an election took place for the post of the CPP leader and though Indira Gandhi had won, Morarji Desai, the candidate of the organisational wing, managed to get the support of 169 MPs. As such, he had to be accommodated and was made the Deputy Prime Minister.
While the challenge for the leadership had been managed, the Government faced yet another crisis. In a hitherto little known and in virtually a non-descript matter, the Supreme Court had given its most hard-hitting judgement. In the Golaknath case, the then Chief Justice of India Koka Subba Rao led the majority view by six to five in stating that Parliament was not competent to amend the fundamental rights in the Constitution and that Article 368 provided only the procedure for amendment. This was a severe blow to Parliament as well as the Government. But CJI Rao was getting ready for another one. In an extremely controversial move, about three months before his retirement and soon after the Golaknath judgement, he resigned, only to announce his candidature for the post of President of India and to contest as the joint candidate of the Opposition against Dr Zakir Hussain. These moves had sown the seeds of a confrontation, setting off a chain of events that had far-reaching consequences.
This judgement had placed the Government in a tight corner as it suddenly found itself ill-equipped to fulfill its political programmes which required Constitutional amendments. Faced with challenges from within the party and in Parliament, besides those from the Opposition-led Governments in several States, the Union Government did not appear to inspire confidence. This was to manifest in serious law and order problems. This was also the period when Naxalism reared its head in West Bengal, where the then Chief Minister Ajoy Mukherjee had to go on a fast against his own Deputy, Jyoti Basu. The result was the decline of Calcutta (now Kolkata) and its hinterland as an industrial hub.
Indira Gandhi knew that in the prevailing situation, in order to consolidate, it was essential to have left of the Centre and pro-people orientation to the policies. Accordingly came the bank nationalisation in 1969. Again there was stiff opposition but Morarji Desai, who was left with no option, had to resign. The then Finance Secretary also had to be shifted to the Ministry of Agriculture. The Parliament was to meet from July 21, 1969, for the Monsoon Session but two days before that, the Ordinance on Bank Nationalisation was promulgated on July 19, 1969. With the nationalisation of commercial banks having a deposit of over 50 crore, Indira Gandhi had once again assumed the initiative and occupied the centrestage.
This major step also helped her to widely appeal and ultimately defeat the organisational candidate N Sanjiva Reddy for Presidency. But coming back to the main issue, immediately after this Ordinance, a writ was filed in the apex court, which was heard by a Constitutional bench of 11 judges. This was the second major case and a test for the Government before the top court. Hackles were raised once again on either side as the Government’s Ordinance was pronounced invalid. Indira Gandhi took it as an affront and gave a political twist to show that the big business was on one side and she was with the common man and was not being allowed to introduce reforms for the downtrodden.
It was only much later that Golaknath could be set right. The opportunity came after Indira Gandhi had won in 1971, when the 24th Constitutional amendment was passed with the intention of nullifying the impact of the Golaknath judgement. However, the validity of this 24th amendment was again challenged through Kesavananda Bharti before a historic 13-judge Bench, which heard the case for about six months and gave a historic judgement in April 1973, validating the amendment. The short point here is that with Golaknath, the seeds of confrontation of the Government with the judiciary was sown. Later pronouncements only hardened attitudes.
In order to overcome this impediment to the bank nationalisation policy, a Constitutional amendment (25th) was passed on April 20, 1972. This (clause 2B and 2C) was later validated during the Keshavananda Bharti case. According to this, the jurisdiction of courts, to determine the adequacy of compensation on acquisition of property, was taken away. A new clause was added that no law, which declared that it was giving effect to these principles in Clause (B) and (C) of Article 39, would be called in question on the ground of inconsistency with the fundamental rights. By now, Golaknath as well as bank nationalisation judgements had been corrected through Constitutional amendments. The next step in the pro-people and left of the centre agenda of Indira Gandhi was to do away with the privileges of rulers and ICS officers.
Prior to August 15, 1947, the rulers of States were sovereign, though their sovereignty was subject to the paramountcy of the British crown, but that authority lapsed on August 15, 1947 as a result of the Indian Independence Act. Consequently, these rulers became absolute sovereigns. After their merger with India, rulers of those States were left with no powers. They had only such rights and privileges as were recognised or created under the Covenants and those embodied in the Constitution. Consequently, the Government moved in the Lok Sabha on September 2, 1970, the Constitution (24th) Amendment Bill 1970, to delete certain provisions of the Constitution relating to the guarantees given to the rulers about their privy purses as well as privileges. This Bill was passed in the Lok Sabha but failed to get the requisite majority in the Rajya Sabha. The motion for consideration of the Bill was rejected at about 4:30 pm on September 5, 1970. The same evening, the Union Cabinet met and decided to advise the President to withdraw the recognition of the rulers so that the privy purses and privileges guaranteed to them may be abolished. On the same night, the President, purporting to act under clause (22) of Article 366 of the Constitution, signed in his camp at Hyderabad, instruments withdrawing recognition of all the rulers. After obtaining his signatures, the concerned documents were flown back to Delhi the same night and the impugned orders were issued on September 6, 1970. On the strength of these orders, the Government of India asserted that all rulers of India had been de-recognised and consequently, none of them was entitled to the rights and privileges to which they were entitled as rulers.
The apex court took up this matter, where a special Bench of 11 judges was constituted for its hearing. Madhav Rao Scindia of Gwalior was the principal mover of the writ on December 15, 1970, to challenge the vires of the Ordinance. The judgement pronounced by 10 judges read as: “In accordance with the opinion of the majority, the petitions are allowed and writs will issue declaration that the orders made by the President on September 6, 1970, challenged here were illegal and on that account, inoperative, and the petitioners will be entitled to all their pre-existing rights and privileges, including the right to privy purses.”
The only dissenting judge was AN Ray, whose order was in favour of the abolition of privy purses. According to him: “Recognition of rulership is not a legal right. It is not a right to property. Privy purse is not a legal right to property. There is no fundamental right to privy purse. There is no fundamental right to rulership.” In fact, the judgement in the privy purses case provided the signal to Indira Gandhi to dissolve the fourth Lok Sabha and go in for a mid-term poll, which she won on a hugely popular platform.
Taking forward the reforms programme, which had been earlier hit by the Supreme Court, she could get the Constitution’s 26th Amendment enacted on December 28, 1971, which nullified this judgement and omitted Articles 291, 362 and inserted Article 363A and amended 366 (22), withdrawing the recognition of rulers of princely States and abolishing their privy purses. Later through the 28th Constitutional amendment of August 29, 1972, privileges of ICS officers were also abolished.
Thus, it may be observed that in this confrontation, the Parliament repeatedly trumped the judgements of the Supreme Court, delivered by no less than 11-judges Bench in each case. Finally, in April 1973, in the Kesavananda Bharti case, the 13 judges of the Supreme Court said that Golaknath was overruled and Parliament had the power of amendment but it could not alter the basic structure of the Constitution. Soon after this judgement, at the retirement of CJI Sikri, the supersession of judges took place with AN Ray becoming the CJI, superseding three senior-most judges of the Supreme Court (JJ Shelat, Hegde and Grover). Incidentally, Ray was the only judge to support the Government in the privy purses case. It is also of historical significance that between 1967 and 1975, the Constitution was amended on a record 14 occasions. Even today, guiding the destiny of the nation by fulfilling the political programme of the party, lies at the core of politics of Constitutional amendments. On the other hand, besides upholding the public interest, courts have always stood for protecting the rights of the individual as enshrined in the Constitution.
(The writer is a former Governor of Meghalaya and Uttarakhand and a former Commissioner of Police, Delhi)
