PAUL MWANGI: Truth about Indian cases causing constitutional crisis in Kenya

One after the other, courts struck down every law and invalidated every policy that sought to effect land reform.

In Summary

•The Assembly promulgated Article 39 calling for equitable distribution of resources among all citizens and preventing concentration of wealth in the hands of a few.

•State governments then begun passing laws to effect revolutionary changes in the land system. Over 250 pieces of legislation were passed to implement land redistribution. On the receiving end were pre-colonial feudal landowners known as Zamindars.

A delegate reads the BBI report during its launch at Bomas of Kenya on October 26, 2020.
BBI REPORT: A delegate reads the BBI report during its launch at Bomas of Kenya on October 26, 2020.
Image: ANDREW KASUKU

When it met at the Constitution Hall in New Delhi on 24th January 1950 to vote for the constitution, the Constituent Assembly for India resolved to establish a Socialist State.

When he addressed the Assembly, the first Prime Minister Jawaharlal Nehru told the members.

“…at present the greatest and most important question in India is how to solve the problem of the poor and the starving… if we cannot solve this problem soon, all our paper constitutions will become useless and purposeless.”

The Assembly promulgated Article 39 calling for equitable distribution of resources among all citizens and preventing concentration of wealth in the hands of a few.

State governments then begun passing laws to effect revolutionary changes in the land system. Over 250 pieces of legislation were passed to implement land redistribution. On the receiving end were pre-colonial feudal landowners known as Zamindars.

Faced with a new constitutional order, Zamindars sought the help of the Judiciary against the State governments. The Judiciary obliged and thereby commenced a vicious supremacy battle against the executive and legislative arms of government that almost resulted in the total collapse of the constitutional order in India.

One after the other, courts struck down every law and invalidated every policy that sought to effect land reform in conformity with Article 39 of the Constitution.

A scholar who wrote on the Judiciary then summarized its increasingly alarming hostility as “procedural nitpicking”, “hair splitting legalisms,” “literal interpretation,” “narrow, technical and mechanical” and “concern of form, not for policy or substance.”

Then came the case of Golak Nath –V- State of Punjab in 1964. The Golak Nath case came after the Indian Government, tired of having all the land reform laws struck down by the courts as unconstitutional, decided to now amend the constitution and make right the law reform programs.

Although the Supreme Court had ten years before held that Parliament had unlimited power to amend the Constitution, it now overruled itself and said that this power was limited. In a majority Judgement of six Judges against five, the court struck down as unconstitutional a law that allowed the state government to acquire part of the land owned by the family of Golak Nath and distribute it to the landless people of the State of Punjab.

But it is what happened next that shocked the whole of India. On 11th April 1967, barely six weeks after delivering the devastating blow against the Indian government, Chief Justice Koka Subba Rao resigned. This surprised everyone because he was set to retire in just three months. Then four weeks after his resignation, seven of the main opposition political parties announced Subba Rao as their candidate in the presidential election set to be held that year.

Although the political groups explained that they had settled on Subba Rao because of his “non-partisanship” and “objectivity”, it was clear that even when he led the majority in the Golak Nath case, Subba Rao had already struck a deal with the opposition political parties. Indeed, when he was offered the ticket, he said he needed time to think about it, but came back with an answer after only two days.

He lost the election to the candidate of the ruling party, Zakir Hussain, but the political damage that the judiciary had done to the Congress Party became apparent. Unable to implement any of the promises it had made to the people due to the frustrations from the Judiciary, the Congress Party lost its popular vote of over ninety-five percent. Subba Rao carried about forty-five percent of the votes cast in the presidential election.

Emboldened by what appeared to be support from the population, the Indian Judiciary continued with its onslaught. In 1970, when the President attempted to remove the privileges of the traditional Princes known as the Maharaj on the basis that they could not apply to an independent and democratic country, the Supreme Court struck down this action as unconstitutional.

In response to this assault, the Prime Minister Indira Gandhi decided to take the matter directly to the people. On 27th December 1970, one year before the next elections were due, she dissolved Parliament and ordered new elections.

In the campaigns that followed, Indira Gandhi took her case against the Judiciary to the people, and told them their judges had denied India the social and economic revolution they had aspired for at independence.

Many observers believed that she had taken a serious risk in calling the elections but the people responded by giving her an overwhelming victory and her party was voted back with a two thirds majority in Parliament.

Her first order of business was to re-assert the authority of Parliament and in that year, the house passed what was known as the 24th Amendment. It provided expressly that Parliament had the power to amend any part of the Constitution including the provisions on Fundamental Rights.

The Supreme Court responded with the decision in Kesavananda Bharati – v- State of Kerala, popularly known as the Kesavananda case. It stated that Parliament had no power to change the basic Structure of the Constitution. Again, the decision was passed by a majority of one, seven judges supporting and six rejecting.

There is a lot of controversy over this decision with many legal analysts saying that it is actually not clear what the judges passed. For instance, the judges who supported the concept of basic structure were unable to agree what that structure was.

Further, some judges had said on one hand that there were no implied limitations to the power of Parliament but on the other hand that there was a basic structure.

Over the next four years, Indira Gandhi’s popularity waned as she struggled to deliver on her promises but unable to pass the laws she needed to do so. By 1975 her position was so weak that the Judiciary felt confident to deliver the Coup de grace.

On 12th June of that year, the High Court of Allahabad delivered its judgement in an election petition that had been filed against Indira Gandhi and declared that she had not been validly elected as a representative of the Rae Bareli Constituency in Uttar Pradesh.

Justice Jagmohanlal Sinha then went further and declared that Indira Gandhi was guilty of election offences could not continue as Prime minister of India. He also barred her from contesting any election for a period of six years.  

In what was described by The Times of London as “firing the prime minister for a traffic ticket,” the court found Indira Gandhi guilty for allowing the state police to build a dias for one of her meetings, and also for sending an officer in the Prime Minister’s office to deliver an election speech, though the officer had resigned one week later to join the campaign.

Indira Gandhi ran to the Supreme Court for a stay pending appeal. The Supreme Court agreed to grant her a partial stay only. It said she may continue as Prime Minister but she may not participate in the proceedings of the House or vote or draw any remuneration as a Member of the Parliament.  

Gandhi did not wait for the final blow. At midnight on 25th June 1975 on her advice, President Fakhruddin Ali Ahmed declared a State of Emergency all over the nation of India.

Gandhi ruled India by decree for the next two years. She launched a massive crackdown on civil liberties and political opposition and secured the approval of parliament to continue the State of Emergency after every six months. Parliament rewarded itself for this favor by delaying elections and extending its life over this period.

Her Congress Party begun the process of recalling the Constituent Assembly to deal with the problem of the Judiciary, though it eventually dropped the idea.

It was clear that constitutional order in India had collapsed. It was only restored when Gandhi finally decided to lift the emergency and lost the election to a coalition of opposition parties.

The lessons the Judiciary learnt were best captured by Justice Markandey Katju of the Indian Supreme Court in December 2006 when he issued a warning to judges in the Aravali Golf Course case;

“If the Judiciary does not exercise restraint and overstretches it’s limits, there is bond to be a reaction from politicians and others. The politicians will then step in and curtail the powers, or even the independence of the Judiciary. If there is a law, the judges can certainly enforce it but judges cannot create a law and seek to enforce it. Judges must know their limits and must not try to run the Government. They must have modesty and humility and not behave like emperors.”