Why 1973 is the darkest year in the history of the judiciary

An unprecedented presser by four senior-most judges of the Supreme Court, followed by an attempt to impeach the Chief Justice of India has kept the judiciary in the news.

The opposition parties have stood united in blaming the government for meddling in the judiciary and say that the independence of the courts is in danger. The latest in the offing is the elevation of Justice K M Joseph to the Supreme Court. The court however made it clear on Thursday that the Centre had the right to reject a name proposed by the collegium.

Amidst talk of the independence of the judiciary being under threat, it would be interesting to revisit the historic and path-breaking judgment in 1973 known as the Kesavananda Bharati case. The period is still considered by legal experts as the darkest year in the history of the judiciary.

The Kesavananda Bharathi verdict:

It all began with the historic Kesavananda Bharathi verdict in which a Constitution Bench headed by Justice Hans Raj Khanna outlined the basic structure doctrine of the Constitution. To put in simple terms the judgment made it clear that the Constitution and not the legislature was supreme.

Many legal experts still argue that it is thanks to this judgment that democracy is still intact in the country. Although the court upheld the basic structure doctrine by only the narrowest of margins, it has since gained widespread acceptance and legitimacy due to subsequent cases and judgments. Primary among these was the imposition of the state of emergency by Indira Gandhi in 1975, and the subsequent attempt to suppress her prosecution through the 39th Amendment.

When the Kesavananda case was decided, the underlying apprehension of the majority bench that elected representatives could not be trusted to act responsibly was perceived to be unprecedented. However, the passage of the 39th Amendment proved that in fact, this apprehension was well-founded. In Indira Nehru Gandhi v. Raj Narain, a Constitution Bench of the Supreme Court used the basic structure doctrine to strike down the 39th amendment and paved the way for the restoration of Indian democracy.

Judicial meddling:

In August 1969, Justice A N Ray was appointed as a judge of the Supreme Court. He went on to become the Chief Justice of India in the most controversial fashion in 1973.

His appointment superseded three senior judges of the Supreme Court, J M Shelat, A N Grover and K S Hegde. This was viewed as a direct attack on the judiciary. This was considered to be unprecedented in the legal history of India. It has been called as the blackest day in Indian democracy.

This move was marked by protests by bar associations and many within the legal faction.

The former CJI, Justice Mohammad Hidayatullah said, "this was an attempt of not creating 'forward-looking judges' but the 'judges looking forward' to the plumes of the office of Chief Justice".

Justice Ray was accused of sharing the government's economic viewpoint. There were allegations that he had developed an adulatory attitude towards the then Prime Minister, Indira Gandhi. He made himself amenable to her influence. He would telephone her frequently and also ask her personal secretary for advice. While this continued for long, the powers of the judiciary were finally restored under the rule of Morarji Desai.