Heroic Judges Whose Decision Saved Indian Constitution

The basic structure of constitution can never be altered did not start with Kesavanand Bharathi case. It journeys started way back from 1964. Here we will discuss the long history of constitution which survived seventy-five years, while the average is seventeen years across the world.

Indian Constitution faces significant challenges, ranging from political polarization and economic inequality to threats to secularism and the weakening of democratic institutions. Addressing these challenges requires a commitment to the Constitution's core principles, including federalism, secularism, social justice, and democracy.

Government of India Act 1935

The Government of India Act was passed by the British parliament in 1935 and came into effect in 1937. It was based on a report by a Joint Select Committee, led by Lord Linlithgow, set up the two houses of the British parliament. The report, in turn, was the result of the Joint Committee’s scrutiny of the ‘White Paper’ – a scheme of constitutional proposals – prepared by the British government close on the heels of the Round Table conferences. The Act was written in a legal style, organised around 11 ‘Parts’ and 10 ‘Schedules’. Each part was further divided into chapters. It is considered to be one of the longest pieces of legislation passed by the British parliament – parliamentary debates around the Act involved 2000 speeches.

Comparative Constitutions

Summary of Tom Ginsburg's Work on Comparative Constitutions

Tom Ginsburg's research focuses on the following key areas:

Constitutional Design and Evolution:

Ginsburg examines how constitutions are drafted and how their design influences governance, democracy, and the rule of law. He explores the factors that lead to the adoption of new constitutions, such as regime changes, transitions to democracy, or crises. His work highlights the importance of constitutional design in shaping political institutions, such as judicial review, federalism, and separation of powers.

Judicial Review and Constitutional Courts:

Ginsburg has extensively studied the role of constitutional courts and judicial review in different countries. He analyses how judicial independence and the power of courts to strike down laws impact governance and the protection of rights. His research shows that judicial review is not a universal feature of constitutions and varies significantly across countries.

Constitutional Transplants:

Ginsburg investigates how countries adopt constitutional models from other nations (a process known as "constitutional transplantation").

He explores whether imported constitutional ideas are effective in different cultural and political contexts. His work challenges the assumption that constitutions can be easily copied and adapted without considering local conditions.

Constitutional Economics:

Ginsburg integrates economic analysis into constitutional studies, examining how constitutions affect economic outcomes, such as growth, inequality, and public policy.

He looks at how constitutional rules, such as property rights protections and fiscal constraints, influence economic development.

Historical and Comparative Analysis:

insburg's work often involves historical analysis, tracing the evolution of constitutions over time. He compares constitutions across regions, such as Latin America, Africa, Asia, and Eastern Europe, to identify patterns and differences.

Digital Constitutions:

Ginsburg has also explored the intersection of technology and constitutional law, examining how digital governance and artificial intelligence may influence constitutional design and implementation in the future.

Key Contributions and Publications

Tom Ginsburg's most notable works include:

"Judicial Review in New Democracies" (2003): A foundational book that examines the role of judicial review in emerging democracies.

"The Architecture of Democracy: Constitutional Design, Conflict Management, and Democracy" (2001): A co-edited volume that explores the design of democratic institutions.

"Constitutions in a Non-Constitutional World" (2012): A book that challenges the idea that constitutions are universal and explores their role in non-democratic regimes.

"The Endurance of National Constitutions" (2017): A study of how constitutions survive or fail over time.

Tom Ginsburg, a distinguished professor at the University of Chicago, has extensively studied the interplay between constitutional design and economic outcomes. His research delves into how constitutions influence economic performance, fiscal policies, and the provision of public goods.

Constitutions and Economic Performance:

Ginsburg's work suggests that constitutions play a pivotal role in shaping economic policies and outcomes. By establishing the framework for governance, property rights, and the rule of law, constitutions can create an environment conducive to economic growth. For instance, constitutions that effectively constrain governmental power and protect individual rights may enhance investor confidence, leading to increased investment and economic development.

Fiscal Restraint and Balanced Budget Rules:

In his analysis of constitutional provisions during financial crises, Ginsburg examines whether constitutional balanced budget rules lead to fiscal restraint. His empirical findings indicate that such rules, often adopted in response to financial crises, can influence government spending and borrowing behaviours, thereby impacting a nation's fiscal health.

Public Choice Theory and Constitutional Design:

Ginsburg explores the intersection of public choice theory and constitutional design, emphasizing how constitutions can mitigate issues like corruption and the misallocation of resources. By setting clear rules and constraints, constitutions can limit opportunities for rent-seeking and promote the efficient provision of public goods, which is essential for economic stability and growth.

Constitutions in Authoritarian Regimes:

Ginsburg also investigates the role of constitutions in authoritarian regimes, analysing how they can be used to legitimize and consolidate power. In such contexts, constitutions may serve as tools to attract investment and stimulate economic growth by signalling stability and commitment to certain economic policies, even if democratic principles are compromised.

Constitutional Endurance and Economic Stability:

The durability of a constitution is another area of Ginsburg's research. He argues that enduring constitutions provide a stable legal and political environment, which is beneficial for economic activities. Frequent constitutional changes can lead to uncertainty, deterring investment and economic planning. In summary, Ginsburg's studies highlight that constitutions are not merely political documents but also fundamental instruments that shape economic policies and outcomes. Their design and implementation can significantly influence a nation's economic trajectory by affecting governance structures, fiscal policies, and the overall stability of the legal environment.

Impact of His Work

Tom Ginsburg's research has had a significant impact on the field of comparative constitutional law. His work bridges legal, political, and economic perspectives, offering insights into how constitutions shape governance and society. His contributions have also informed policymakers and practitioners working on constitutional reform and design.

For aspiring IAS officers, understanding these challenges is crucial for upholding the Constitution and ensuring good governance. The lessons from these challenges—such as the importance of protecting federalism, promoting social justice, and strengthening democratic institutions—are essential for navigating India's complex political and social landscape. By addressing these challenges, India can preserve the spirit and effectiveness of its Constitution, ensuring that it remains a beacon of democracy and justice for future generations. Is Kesavanand Bharati case the first to address the issue of constitution?

The answer is NO.

Justice J.R. Mudholkar's dissenting judgment in the landmark case of Sajjan Singh v. State of Rajasthan (1964) reflects a deep concern about the power of constitutional amendment and its potential to undermine the foundational principles of the Constitution itself. The reference to Cornelius' logic highlights the tension between the authority of constitutional bodies, such as the Parliament, and the limits of their power to amend the Constitution.

Cornelius' argument, as understood in this context, suggests that a body established under the Constitution, such as the Parliament, cannot be granted the power to fundamentally alter or destroy the very Constitution it is sworn to uphold. This raises the question of whether the amending power, if left unchecked, could lead to a situation where the Constitution is no longer the supreme law of the land but is instead subject to constant revision by those who are bound by it.

Justice Mudholkar's dissenting opinion in Sajjan Singh was part of a broader debate about the scope of Article 368 of the Indian Constitution, which deals with the power of amendment. While the majority in the case upheld the broad amending power of Parliament, Mudholkar and two other judges dissented, arguing that the power to amend the Constitution should not include the power to alter its basic structure or framework. This dissent laid the groundwork for the later judicial doctrine of the "basic structure" of the Constitution, which was famously articulated in the Kesavananda Bharati case (1973).

 In essence, Mudholkar's concern, influenced by Cornelius' logic, was that allowing constitutional authorities to fundamentally change the Constitution could lead to a situation where the Constitution loses its foundational character and becomes a mere tool for political expediency. This line of reasoning underscores the importance of safeguarding the Constitution from internal threats, even from those bodies that are constitutionally mandated to protect it.

Keshavananda Bharati v. State of Kerala (Basic Structure Doctrine)

While the Habeas Corpus case is Justice Khanna's most celebrated ruling, almost as well known is his judgment in the landmark case of Kesavananda Bharati. In 1973, the Supreme Court constituted its largest-ever bench of 13 judges to decide whether Parliament had the unfettered right to amend the Constitution or not. On 24 April 1973, seven out of 13 judges held that Parliament's power to amend the Constitution was limited. Six other judges in the case were of the view that Parliament's power was unrestricted. Justice Khanna's judgment held that, although the Constitution is amenable to amendments, changes that ultra vires, tinker with its basic structure cannot be made by Parliament, that is – certain parts of the constitution were "basic" and could not be amended. However, he also said the amendment of the right was fundamental – as he explained, "If no provisions were made for amendment of the constitution, the people would have recourse to extra constitutional method like revolution to change the constitution". The judgment clarified and partially overruled the court's earlier verdict in Golak Nath by holding that Parliament could amend the Constitution, particularly the property right.

The Habeas Corpus Case

Justice Khanna is renowned for exhibiting immense courage during the Indian Emergency (1975–1977) declared by Indira Gandhi.

The emergency was declared when Justice Jagmohanlal Sinha of the Allahabad High Court invalidated the election of Indira Gandhi to the Lok Sabha in June 1975, upholding charges of electoral fraud, in the case filed by Raj Narain.

Owing to the repressive Maintenance of Internal Security Act (MISA) which provided for the unlawful detainment of individuals without trial, several high courts had given relief to the detainees by accepting their right to habeas corpus as stated in Article 21 of the Indian constitution. This issue was at the heart of the case of the Additional District Magistrate of Jabalpur v. Shiv Kant Shukla, popularly known as the Habeas Corpus case, which came up for hearing in front of the Supreme Court in December 1975. Given the important nature of the case, a bench comprising the five seniormost judges was convened to hear the case.

During the arguments, Justice Khanna at one point asked the Attorney General Niren De: "Life is also mentioned in Article 21, and would Government argument extend to it also?". He answered, "Even if life was taken away legally, courts are helpless".

The bench opined in April 1976, with the majority deciding against habeas corpus, permitting unrestricted powers of detention during an emergency. Justices A. N. Ray, P. N. Bhagwati, Y. V. Chandrachud, and M.H. Beg, stated in the majority decision:

Given the Presidential Order [declaring emergency] no person has any locus to move any writ petition under Art. 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention.

Justice Beg even went on to observe: "We understand that the care and concern bestowed by the state authorities upon the welfare of detenues who are well housed, well-fed, and well treated, is almost maternal."

However, Justice Khanna resisted the pressure to concur with this majority view. He wrote in his dissenting opinion:

The Constitution and the laws of India do not permit life and liberty to be at the mercy of the absolute power of the Executive . . . . What is at stake is the rule of law. The question is whether the law speaking through the authority of the court shall be silenced and rendered mute... detention without trial is an anathema to all those who love personal liberty.

In the end, he quoted Justice Charles Evans Hughes:

A dissent is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may correct the error into which the dissenting judge believes the court to have been betrayed.

Before delivering this opinion, Justice Khanna mentioned to his sister: I have prepared my judgment, which is going to cost me the Chief Justice-ship of India.

Aftermath of the judgment

True to his apprehensions, his junior, M. H. Beg, was appointed Chief Justice in January 1977. This was against legal tradition and was widely protested by bar associations and the legal community. Justice Khanna resigned on the same day. After his resignation Bar Associations all over India, in protest, abstained from the courts and took out black-coat processions, though to no avail. However, this was the last supersession in the history of the Supreme Court, and eventually, the judiciary even wrested the power of judicial appointments from the executive in a landmark ruling in the Advocates-on-Record case in 1993 (also known as the Second Judges Case).

The New York Times, wrote at the time:

If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice H R Khanna of the Supreme Court. It was Justice Khanna who spoke out fearlessly and eloquently for freedom this week in dissenting from the Court's decision upholding the right of Prime Minister Indira Gandhi's Government to imprison political opponents at will and without court hearings... The submission of an independent judiciary to an absolutist government is virtually the last step in the destruction of a democratic society, and the Indian Supreme Court's decision appears close to utter surrender.

This judgment has been consistently lauded by lawyers, scholars, and intellectuals alike and has been compared to the dissent of Lord Atkin in Liversidge v Anderson.

Nani Palkhivala's book, which came out soon after the emergency was revoked, carried a full-fledged chapter on him titled, "Salute to Justice Khanna". At one point in the chapter, he says of Justice Khanna, "his statue must be installed in every street and corner of the country for the yeoman service rendered by him for the cause of justice".

In December 1978, his full-size portrait was unveiled in his former court, courtroom number 2 of the Supreme Court. To this day, nobody else has had the singular honor of having their portrait put up in the Supreme Court during their lifetime.

In fact, when the Supreme Court Bar Association asked for contributions from its members to collect Rs 10,000 for the portrait, within half an hour Rs 30,000 was on the table and the members of the bar had to be forcibly stopped.

Post-judicial career

Upon the suspension of the emergency, the Janata Party which was preparing for the impending elections urged him to contest them but he refused and preferred instead to carry on chamber practice. He was highly active with it, taking international arbitrations into his early nineties.

After Indira Gandhi lost the elections of 1977, the ruling Janata Party wanted him to head the Commission of Inquiry against the illegal imposition of the emergency and the various atrocities committed during it but Khanna refused, as he felt he would appear biased against Indira Gandhi and her son Sanjay Gandhi. He was then offered the Chairmanship of the Finance Commission, a position he also refused. He did however accept the office of Chairman of the Law Commission, a post he held without any pay. He resigned from its chairmanship in 1979 when he was inducted into the cabinet as Union Law Minister by Charan Singh. However, he resigned within 3 days. As it so happened, the entire government fell within six months. In 1982 Khanna was nominated for President of India, as a combined opposition candidate supported by as many as nine opposition parties. However, the Congress Party had a huge majority numerically and he lost to Giani Zail Singh.

From 1985 until 2000, he was the national president of the Bharat Vikas Parishad, after which he became patron to the organisation. He was a long time board member of, and for many years the chairman of the Press Trust of India.In 1998, the Justice HR Khanna committee was constituted by the railway ministry with the mandate of "reviewing the implementation of previous accident inquiry committees, of examining the adequacy of existing practices for the safe running of trains and to suggest safety measures." Under his chairmanship, the Railway Safety Review Committee made 278 recommendations, out of which 239 were accepted by the railways.

In 2001 he chaired the advisory panel to the Government of India on strengthening the institutions of parliamentary democracy.

A prolific writer, he also lectured regularly and many of his lectures were later published in book form. Among the books he has authored, are "Judicial Review or Confrontation" (1977), Constitution and civil liberties (1978, based on the B. R. Ambedkar memorial lectures), Making of India's Constitution (1981, based on the Sulakshani Devi Mahajan lectures), "Judiciary in India and Judicial Process" (1985, based on the Tagore Law Lectures), Liberty, Democracy and Ethics, Society and the Law, which mainly deal with Indian law and the constitution. He also wrote an autobiography, Neither Roses nor Thorns, (Lucknow, 1985).

 In the conclusion of his Making of India's constitution, he writes:

 If the Indian constitution is our heritage bequeathed to us by our founding fathers, no less are we, the people of India, the trustees, and custodians of the values which pulsate within its provisions! A constitution is not a parchment of paper, it is a way of life and has to be lived up to. Eternal vigilance is the price of liberty and in the final analysis, its only keepers are the people. The imbecility of men, history teaches us, always invites the impudence of power."

 He published his autobiography, Neither Roses nor Thorns in 2003. Khanna died on 25 February 2008 at the age of 95.