[This post is part of a special series celebrating 47 years of the decision in Kesavananda Bharti v. State of Kerala, wherein the Supreme Court of India laid down the ‘Basic Structure Doctrine’]. It has been republished by Live Law.
The decision in Kesavananda Bharti v. State of Kerala [(1973) 4 SCC 225] is significant as here the Supreme Court of India (“Court”) laid down the basic structure doctrine, according to which the Parliament can amend any part of the Constitution barring certain fundamental features. Since the decision was a major blow to ruling government which was trying tooth and nail to restrict the Judiciary’s overwatch, there were bound to be consequences.
Two days after the decision in Kesavananda, Mrs. Indira Gandhi (the Prime Minister at the time) decided to break a Supreme Court tradition that had existed since the Court’s inception. There is no provision in the Constitution regarding the appointment of the Chief Justice of India. Since the Court’s inception, the senior most Judge was appointed as the Chief Justice of India, which made it a practiced convention.
On 26 April 1973 (i.e. Forty-seven years ago from today) Mrs. Gandhi broke this convention and superseded the senior most Judge of the Court i.e. Justice Hegde, to appoint Justice A.N. Ray (a junior Judge) as the Chief Justice of India. Justice Ray in effect also superseded Justice Shelat and Justice Grover who were the 2nd and 3rd ranked senior Judges and were to become the Chief Justice in due time. All the three superseded Judges tendered their resignation in response.
It is believed that the supersession was in response to the decision in Kesavananda where the three senior Judges had ruled against the government. Justice Ray was picked as he was seen as a government friendly Judge and the government believed that he could bring an end to the confrontation between the Judiciary and the Government. Justice Ray responded to his appointment by saying, ‘if I did not accept the appointment any other junior judge would have, I did not hanker for it’. This day was termed by Mr. C.K. Daphtary (former Attorney General of India) as the Blackest Day in the history of Democracy.
Four years later, Mrs. Gandhi’s government broke the seniority convention again and this time its victim was the great Justice H.R. Khanna. In 1975, Mrs. Gandhi had imposed an Emergency in India and in response, several political leaders and other citizens were arbitrarily detained by the government. These detentions were challenged and ultimately reached the Supreme Court in ADM Jabalpur v. Shivkant Shukla (1976) 2 SCC 521. Attorney General Niren De arguing on behalf of the government, stated that during an Emergency the rights of the citizens stood suspended including their right to approach the Courts. In fact, during the hearing, Justice H.R. Khanna asked Mr. De “In view of his submissions would there be any remedy if a police officer because of his personal enmity killed another man?” De replied “consistently with my argument, there would be no judicial remedy in such a case so long as Emergency exists” . He further said, “It may shock your conscience, it may shock my conscience but consistently with my submissions, no proceedings can be taken in a Court of law that score”.
The Court by a 4-1 verdict agreed with the government’s submission and in effect held that a citizen had no right to approach a Court during the Emergency. The lone dissent in this case was Justice Khanna.
The dissent costed Justice Khanna his place as the Chief Justice of India as he was superseded by Justice M.H. Beg on the pretext that Khanna’s tenure would have been too short. I have discussed in an article before, that the architect behind these supersessions was not the Law Minister but the Minister of Steel, M. Kumarmangalam, who was the key advisor to Mrs. Gandhi, who wanted to populate the Court with judges that were believed to be supportive of government policies.
Interestingly, contrary to popular opinion the saga of supersessions was not started by Mrs. Gandhi. The desire to supersede Judges of the Court goes back to the First Prime Minister of India Pt. Jawaharlal Nehru. It is popularly believed, that Pt. Nehru was not keen on appointing Justice H.J. Kania as the first Chief Justice of India, as he felt that certain actions of Justice Kania smacked of communalism. Nehru agreed to drop the idea only on an assurance by the Home Minister Sardar Patel, who assured him that he had spoken to Kania.
Post-independence, the Nehru led Parliament had introduced several social welfare legislations, which were struck down by the Supreme Court on grounds of fundamental rights violation. Nehru at the time had famously remarked that ‘the judges sitting in the ivory palaces are not aware about the real needs and problems of the country’.
In light of the same, India would have witnessed the first supersession in the form of Justice Patanjali Shastri. Pt. Nehru wanted to appoint Attorney General MC Setalvad or Justice M.C. Chagla or Justice BK Mukherjee as the Chief Justice in place of Justice Shastri. However, when the other six Judges of the Court heard of this, they threatened to resign and the plan was dropped. In 1954, Nehru wanted to supersede Justice M.C. Mahajan, and appoint Justice B.K. Mukherjee as the Chief Justice, however the Associate Judges again threatened to resign and the idea was dropped.
Three years before superseding Justice Hegde, Mrs. Gandhi wanted to supersede Justice JC Shah, who was to succeed Justice Hidayatullah as the Chief Justice. However, Justice Hidayatullah threatened to resign along with the other associate Judges (except Justice Ray) if the supersession was carried out. It is believed that Justice Hidayatullah, also threatened Mrs. Gandhi that India was soon hosting an international convention of lawyers and if Justice Shah was superseded the whole world would know what happened. Similarly, Mrs. Gandhi’s government wanted to supersede Shah’s successor Justice S.M. Sikri as well, but the plan could not be carried out as the government’s plate was full handling the dispute within the Congress party.
On Judge’s supersession, a Member of the Parliament had famously remarked that, ‘The boy who wrote the best essay got the prize’.
The Court warded off the Executive interference in the appointment of the Chief Justice for the first 23 years, by threatening to resign en banc if any attempt to supersede a Judge was made. However, in 1973 the Court’s unity was breached and Justice Ray accepted the post of the Chief Justice of India at the cost of Justice Hegde. Executive’s interference in matters concerning the Judiciary, breaches the cardinal principal of separation of powers. Fortunately, there have been no further attempts at supersession in the Court and the seniority convention has remained intact.
The author does not wish to offend or disrespect any member of the legal fraternity with this post. The facts and events stated in it have been reported in the public domain. The author has relied on three primary sources which are : ‘The Judges of the Supreme Court of India (1950-1989)’ by Gadbois Jr., ‘Neither Roses nor Thorns’ by Justice H.R. Khanna, ‘God Save the Hon’ble Supreme Court’ by Fali Nariman and ‘In Sua Causa: What the judiciary has done to itself’ (published in the Caravan) by Rahul Dev.
In picture – Justice A.N. Ray taking oath as the Chief Justice of India.
The 'Basic' Structure 
Nicely put, the day in history. Because it’s important not to forget some events as by doing so the possibility of them being repeated minimises!
I would just like to add some events to the above that I came across while reading the book “Supreme But Not Infallible (Essays in Honour of the Supreme Court of India).
One is free to take his call as human-play or the work of destiny after going through the piece herein below.
One person could have been the Chief Justice of India if there was no supersession of Judges (Justice H.R. Khanna), while the other could have been one, had there been a supersession (Justice V.R. Krishna Iyer) which would well have been the third time in the history of the Supreme Court of India.
While going through an essay by Granville Austin “The Supreme Court and the Struggle for Custody of the Constitution” in the book “Supreme But Not Infallible (Essays in Honour of the Supreme Court of India)” (2004/Oxford) I got to know a very interesting fact which could’ve altered many statistics.
This essay inter alia mentions the fact that there well could’ve been a third supersession of Judges had Morarji Desai who became the Prime Minister after Indira Gandhi lost power after phony emergency on the ground of internal disturbance was revoked in 1977 acted in a certain way.
Janta party government after coming to power acted to protect/restore judicial independence. And for that Prime Minister Morarji Desai twice had to go against his own colleagues. First such instance was when Ram Jethmalani and K.S. Hegde (who had earlier resigned on being superseded after the Kesavananda Bharti verdict) pressed Prime Minister Desai to ask Justice M.H. Beg to step down from Chief Justiceship in favour of Justice H.R. Khanna. This was rejected not just by Prime Minister Desai, but also by Justice Khanna. Reading this vindicated the statement which Khushwant Singh once made for Justice Khanna. He had said, “Justice Khanna is so clean a man that even angels feel disheveled and dirty in front of him”.
The second such instance came when Justice M.H. Beg was to retire. At that time Prime Minister Desai had to withstand pressure from Jayaprakash Narayan, M.C. Chagla and others to supersede Justices Y.V. Chandrachud and P.N. Bhagwati on the ground that they had proved themselves to be ‘committed judges’ when on the bench in ADM Jabalpur Case.
Had this scheme succeeded, Justice V.R. Krishna Iyer, another doyen of India’s Judiciary, who later along with Justice P.N. Bhagwati transformed the Supreme Court of India to the Supreme Court for Indians would have become the Chief Justice of India. And also, Justice Y.V. Chandrachud who till day holds the distinction of being the Chief Justice of India who served the longest term would have been deprived of the same. Justice V.R. Krishna Iyer later retired as a Judge of the Supreme Court.
Indeed, strange are the ways of ‘Life’!
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Hi Gaurav!
Thank you for reading the article and sharing your insight. I agree with you that there were voices within the Janta government to supersede Judges who wrote the majority opinion in ADM and even re-appoint Justice Khanna as the Chief Justice. However, no action was taken on these demands as the government wanted to be different than Mrs. Gandhi’s regime and not interfere with judicial appointments. I did not mention them in the post, as these demands did not come from the PM directly, whereas in all other cases the PM favoured superseding the Judges.
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