Neither the Supreme Court’s ‘basic structure’ judgment nor Indira Gandhi’s supersession of judges nor even the proclamation of the Emergency (IE, August 7) halted the struggle for supremacy between Parliament and the Supreme Court. On the contrary, the changed circumstances — the suspension of democracy, censorship on the press and so on — helped escalate the fierce conflict.

Unsurprisingly, the new Chief Justice, A.N. Ray, promoted over the heads of three judges senior to him, appeared to go along with the government in its game. As it happened, in August 1975, in what has come to be known as the Election case, the Supreme Court reaffirmed the basic structure doctrine first propounded in the famous Kesavananda Bharti judgment two years earlier. Precisely three days after the reaffirmation, Chief Justice Ray constituted a 13-judge bench to overturn the Kesavananda judgment, and thus the doctrine that had restored equilibrium of sorts between two of the three pillars on which rests the constitutional edifice. For this purpose, he invoked “some petitions, including one by the Tamil Nadu government”.

Ironically, this move turned into acute embarrassment to Ray and to those supporting him. When the hearings began, Attorney-General Niren De argued that the “difficulties” (in passing legislation for socio-economic reform) and “confusion” had to be removed. Justice H. R. Khanna questioned this from the bench. However, it was Nani Palkhivala, most eminent in the galaxy of legal luminaries arrayed against the chief justice, who demolished the whole enterprise the next day. He cited the sweeping and repressive Forty-first Amendment, enacted behind the ramparts of the Emergency, as an example of what would prevail were the basic structure doctrine abandoned. Palkhivala then delivered the coup de grace. The review of Kesavananda, he said, couldn’t be entertained on “an oral request of the government”. Ray responded that the request for review had come “from petitioners. Even the TN government had asked for a review”.

... contd.