The 39th Amendment to the Constitution of India, passed during the Emergency (1975), immunised the election of the prime minister and president of India, against scrutiny by a court of law.
When Shanti Bhushan (arguing on behalf of Raj Narain) challenged the 39th Constitutional Amendment, he was faced by four judges who had (in the minority judgment in the Keshavananda Bharti case) held that there was no limitation on the Parliament’s power to amend the Constitution.
Only one among them – Justice HR Khanna – was party to the majority judgment which had held that if a proposed amendment adversely affected the basic features of the Constitution, its powers could not be exercised.
But, what were these basic features? This was the first question posed to Bhushan by the then Chief Justice of India AN Ray.
“I could see that he was trying to ridicule the theory of basic structure,” Bhushan recounted in his memoir.
And what was Bhushan’s response to that?
“My answer was that every constitution has some basic features which make it unique…The power given to Parliament under Article 368 was merely to amend the Constitution. The Constitution still had to retain the same identity. It could not include the power to replace the constitution and there was a difference between amendment and replacement.…”
Long Story Short: After a couple of days of elaborate arguments, Bhushan’s contention was accepted and the five judge bench unanimously struck down the 39th Amendment to the Constitution of India – “the first amendment to be struck down.”
But the court did uphold the Representation of the People Act, 1951. It also gave the benefit of the Ninth Schedule to the amendment of election law "by holding that the theory of basic structure was only applicable to the amendment of the Constitution and not to an amendment of a parliamentary act..." – a view which the Supreme Court itself changed a few years later.
“Shanti Bhushan, affectionately called Shantiji, was independent India’s most courageous lawyer,” senior advocate Dushyant Dave wrote in The Indian Express on Wednesday.
Bhushan breathed his last on Tuesday, 31 January, at 97 years of age, but he leaves behind a legacy that will continue to impact the jurisprudence in India for decades to come.
But how did Bhushan even get involved with the law in the first place?
His memoir suggests that as a student of the Ewing Christian College in Allahabad, his interest in the practice of law was zilch.
It was not until a weekend in 1943 when he stumbled upon his father, who was a government advocate at the time, huddled with a bunch of junior lawyers and police officers contemplating over a curious question of the Criminal Procedure Code (CrPC), that his curiosity was piqued.
He then followed the case proceedings all the way up till the matter was finally decided in his father’s favour. Subsequently, he went on to do BSc, but he also visited the court everyday and even helped his father draft civil briefs. By and by, Shanti managed to enrol for an LLB degree, despite the reluctance of his father who incidentally “wanted the best for me, and in those days the best was considered to be the Indian Civil Service.”
But his contribution cannot be limited to his defence of the basic structure in Raj Narain vs Union of India.
His rebuke to the then attorney general’s “casual attack” on the Keshavananda Bharati judgment, as he had argued Raj Narain’s case before the Allahabad High Court, is as pointed out by Dave “resounding even today”. Bhushan had called the AG’s “attitude towards this historic judgement…unworthy of the office he holds.”
He had also famously defended fundamental rights in the ADM Jabalpur case. But he did not win that case. Writing about it in his memoir, Bhushan noted: “That was indeed a sad day for the Indian judiciary.”
He also pointed out that two of the five judges on the bench had succumbed to political pressure and consequently, their reputations had suffered.
In the years that came after, Bhushan was also involved in the setting up of Campaign for Judicial Accountability and Judicial Reform. In 2009, he signed a statement, along with other luminaries like Ram Jethmalani and Fali S Nariman, suggesting that judicial appointments ought to be made only after a public debate, including review by members of the bar of the affected high courts.
Thus, while Bhushan was known to “love the judiciary in its own way,” he also “strongly believed in its independence.” The consortium of these two strong emotions, it appears, made him one of the judiciary’s bravest and most unsparing critics.
Faced with a potential contempt case, Dave recounts, Bhushan once told the apex court that he will “consider it a great honour to spend time in jail for making an effort to get for the people of India an honest and clean judiciary.”
His career also suggests that he wasn't one to cower before the Executive.
When he managed to win a favourable verdict in the Allahabad High Court, in Raj Narain's challenge to (then) Prime Minister Indira Gandhi's election in 1971, he surprised all and sundry.
“Many of my important clients, while engaging me in their cases, have confided in me that since I was able to defeat Mrs Gandhi in the Allahabad High Court, when she had all possible legal recourses available to her, they could safely leave their cases in my hands,” Bhushan wrote in his memoir. But he also credited Justice Jagmohan Lal Sinha, who had adjudicated the matter, for his courage and "robust independence."
As law minister too, Bhushan displayed unflinching commitment to the ideal of independence.
Despite his personal reservations about Justice YV Chandrachud (owing to his infamous ADM Jabalpur judgment that put riders on liberty), and Janata Party leader Jayaprakash Narayan’s initial opinion, Bhushan also adhered to the principle of seniority and recommended Justice Chandrachud’s appointment as CJI.
Even though he is reported to have later changed his view on the "seniority alone" principle, it is pertinent to note that there was another reason for his proposal back in the day. As recounted in his memoir:
“…even if we appointed a person from outside the Supreme Court, at least some sections of the public would see it as the Janata Party government hand-picking a person for the highest judicial office. This fact in itself would undermine the moral authority of the Chief Justice and whenever he had to take a position on a controversial matter – particularly a politically sensitive matter – someone would point a finger if it happened to be in favour of the government.”
And so when faced by MPs who would be unhappy with this appointment (as many of them had been jailed as a consequence of Chandrachud's judgment), he wrote to all judges of the Supreme Court as well as eighteen chief justices of different high courts, and asked them for their opinion.
While two people disagreed, and one refrained to comment, the majority view was in favour of the seniority principle – and so Bhushan did what he was obligated to do as law minister and recommended Justice Chandrachud.
This anecdote gathers greater pertinence in the present day as the Executive appears increasingly interested in the appointment process, even suggesting that it should have a say in who gets picked and how. But Bhushan, a legal icon with unimpeachable integrity, refused to allow the appointment process to be corrupted by the views of his colleagues. Even as law minister. Especially as law minister.