The Case that Shook India by Prashant Bhushan

Author:Prashant Bhushan
Language: eng
Format: epub
ISBN: 9789386495877
Publisher: Random House Publishers India Pvt. Ltd.
Published: 2017-05-20T04:00:00+00:00

THE AMENDMENTS ARE CHALLENGED

It was 11 August, the date fixed for hearing by the Supreme Court of Mrs Gandhi’s appeal. Entry to the Chief Justice’s court was restricted to pass-holders. Passes to lawyers could only be issued by the Secretary of the Bar Association and passes to outsiders were issued under the discretionary authority of the deputy registrar. These restrictions were unprecedented. All people going to that court had to pass through a metal detector and a security check. Some Indian newsmen were granted passes. Foreign newsmen, however, were denied passes on the spurious ground that the seats were not enough, although at least half the seats in the visitors’ gallery went empty.

The judges entered the court punctually at 10.30 a.m. in the ceremonial order of their seniority—first, the Chief Justice, followed by Justices Khanna, Mathew, Beg and, finally, Justice Chandrachud.

Mrs Gandhi by this time had changed her lawyer yet again. While Kaushal was retained as an assisting counsel, the charge of arguing the appeal was given to Ashok Sen, who had been the law minister in Nehru’s Cabinet. It is ironical that Sen had been ‘dropped’ from the Cabinet by Mrs Gandhi herself when she became the Prime Minister.

As it was Mrs Gandhi’s appeal, Sen was first called upon to make his submissions. In the light of the amendments, Sen’s submissions were necessarily brief. He submitted that Mrs Gandhi had been convicted by the High Court on extremely technical grounds. Seeking justification for the amendments, Sen said that the case had become an extremely controversial one in which the judiciary had become dangerously embroiled. It was, therefore, to avoid embarrassment to the judiciary, that the Parliament had taken the responsibility on its own shoulders and clarified the issue by amending the Representation of the People Act. Sen read out the relevant portions of the amendments and submitted that it removed the whole basis on which Mrs Gandhi had been found guilty. Sen then also read out the relevant clause of the constitutional amendment which declared the election of the Prime Minister valid and pleaded that the case be disposed of according to the mandate of the constitutional amendment.

It was now Bhushan’s turn to make his submissions. He told the court that he was left with no option but to challenge the constitutional validity of the Thirty-ninth Amendment. Bhushan told the court that in Kesavananda Bharati’s case, the thirteen-member Bench had laid down that ‘no constitutional amendment could violate the basic features of the Constitution’. He would be relying on the dictum of that case in his attack on the amendments.

Incidentally, these were the last five judges left in the Supreme Court who had been parties to the decision in the fundamental rights case of Kesavananda Bharati. Out of these, only Justice Khanna was a party to the majority decision which laid down that Parliament was incompetent to destroy the basic structure of the Constitution, even by a constitutional amendment. The other four judges had held that the Parliament’s amending powers were plenary.

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