How the Emergency Left India's Judiciary Bruised

There is a misconception that judicial activism in India emerged after the withdrawal of the National Emergency (1975-1977).

- Kaleeswaram Raj

In the true sense of the phrase, it was inaugurated in the Golaknath case (1967) when the Supreme Court held that Parliament cannot curtail the fundamental rights of the people as enumerated under part 3 of the Constitution. The Court, in Golaknath, demarcated the limits of legislative majority. This was, perhaps, the first direct judicial effort to distinguish constitutional democracy from conventional democracy where legislative majority alone matters. Golaknath was a constitutional assertion over political whims and fancies, which, indirectly, negated idolatry in politics.

Then came the seminal judgment in Kesavananda Bharati (1973) that evolved the basic structure doctrine. It said that Parliament cannot alter the basic structure of the Constitution by invoking the legislative process. Many ideas like secularism, republicanism, free and fair election and rule of law were, thereafter, indicated as basic features of the Constitution by way of various judicial pronouncements. The doctrine resembled the eternity clause in the German Constitution on the inalterability of the constitutional tenets. It tried to stall the legislative onslaught instigated by personal or political interests.

Indira Gandhi's membership of the Lok Sabha, validated the retrospective amendments to the election laws. The amendment absolved her from the consequences of "corrupt practices" as found against her by the Allahabad High Court.