If the court troubles, let’s then muzzle it
28 May 2013
[The judiciary was especially targeted by the Congress in the 1970s, when senior party leaders openly spoke of the need for ‘committed' judges. The 42nd Amendment was designed to stifle the judiciary’s independence]
Have you noticed that the only quarter from which there was an adverse comment on the Supreme Court, after its stinging observations on the conduct of the Central Bureau of Investigation on May 8, was from a very senior leader of India’s oldest party?
While the entire country hailed the observations of the court and hoped that it would stand as a bulwark against the nefarious conduct of Union Ministers, who are constantly meddling with the affairs of the CBI, Mr Digvijaya Singh, the Congress general secretary and conscience-keeper criticised the court and accused it of running down institutions.
According to him, the court ought not to have called the CBI “a caged parrot”, as that amounted to belittling an important “institution”. He also said the court ought to exercise restraint, and then went on to give the country a primary lesson in constitutional law when he stated the obvious — that “pillars of democracy cannot encroach upon each other”.
His other fundamental argument vis-à-vis the judiciary was, “We (elected representatives) are chosen by the people and we are answerable to the people”.
All this sounds a bit too familiar to those who know the history of the Congress’s relations with the higher judiciary.
Those who are acquainted with this are not surprised because the words uttered by Mr Singh constitute a true reflection of the real opinion of the Congress.
Here is an update for fellow citizens, including members of the judiciary, who are not familiar with this aspect of our history:
The judiciary was especially targeted by the Congress in the 1970s. Then Prime Minister Indira Gandhi ignored three senior-most judges and appointed Justice AN Ray as the Chief Justice. In those days, members of the Congress spoke of the need for a ‘committed’ judiciary.
They were angry with the Supreme Court’s landmark judgement in the Kesavananda Bharati case where the court enunciated the basic structure doctrine. It said Parliament cannot alter the ‘basic structure’ of the Constitution while amending it.
This doctrine was not to the liking of the Congress because it believed that the Constitution could be tampered at will and it planned to do just that via the 42nd Amendment. One of the prime purposes of this amendment was to destroy the independence and authority of the High Courts and the Supreme Court. It was meant to declare the supremacy of Parliament and debar the Supreme Court from examining the vires of the amendments made to the Constitution.
This amendment had many other obnoxious features including, hold your breath, the power of the President to amend the Constitution through an executive order! The 42nd Amendment was debated and passed by the Lok Sabha during the Emergency in November 1976.
The observations of senior leaders of the Congress during this debate about the judiciary is worthy of recall. When you read them, you will realise the source of Mr Singh’s inspiration for the latest attack on the judiciary and the hollowness of his comments on the basic tenets of democracy.
When the 42nd Amendment was debated, Prime Minister Indira Gandhi set the ball rolling by reiterating Parliament’s power to amend the Constitution. She said those (Supreme Court judges) “who want to fix the Constitution in a rigid and unalterable frame do not know the spirit of our Constitution is entirely out of tune with the spirit of new India”.
Sardar Swaran Singh, NKP Salve, Vasant Sathe and AR Antulay all backed her to the hilt and argued that nobody, including the Supreme Court, had the right to tell Parliament what to do or what not to do. Congress MPs poured ridicule on the doctrine of basic structure enunciated by the Supreme Court.
Swaran Singh said the judges had “imported” this phrase, because it did not exist in the Constitution. Indira Gandhi said the judges had “invented” the phrase because it did not exist in any Constitution. Salve said the concept was “utterly vague and ambiguous”.
Thereafter, the MPs hurled invectives at the judiciary.
Sardar Swaran Singh, who headed the infamous committee constituted by the party to redraft the Constitution, said the courts had “transgressed the limits prescribed for them” and resorted to “a crude sort of invasion”.
Salve said the time had come for the Constitution “to be saved from the court and the court from itself”. Mr
Priyaranjan Das Munshi went even a step further. He said until and unless the Government had the capacity “to change the class character and concept of judicial wisdom...this would continue”.
It was then the turn of CM Stephen. And this is what he said about judges and the higher judiciary:
“Now the power of this Parliament (through the 42nd Amendment) is declared to be out of bounds for any court. It is left to the courts whether they should defy it. I do not know whether they will have the temerity to do that but if they do…that will be a bad day for the judiciary. The committee of the House is sitting with regard to the enquiry into the conduct of judges and all that. We have got our methods, our machinery”.
In other words, Stephen was virtually threatening the judges of the Supreme Court about the Government instituting inquiries into their conduct, if they did not accept the 42nd Amendment.
He was speaking the language of a thug when he said “We have got our methods, our machinery”. This was the street language of the Youth Congress in those days and was often deployed to browbeat the judiciary and the media.
Have you ever come across another political party in India which has threatened judges and the Supreme Court in this manner?
The Congress has continued this tradition of attacking the independence of constitutional bodies including the courts. Whenever the courts and independent institutions like the Comptroller and Auditor-General have exposed scams, the Congress had targeted them.
Now you know where Mr Digvijaya Singh draws his inspiration from? Earlier he had targeted the former CAG, Mr Vinod Rai, and accused him of harbouring political ambitions.Yet, this is the very same man who deems himself qualified to lecture the judges and the citizens on core values of our Constitution.
And we are condemned to listen to it.
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