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

It was the thin majority that evolved the Kesavananda Bharati principle (the doctrine of basic structure) that irked the powerful regime under Prime Minister Indira Gandhi. The challenge the judgment posed against an aggrandising executive and parliamentary majoritarianism prompted the executive to meddle with the affairs of the judiciary. Three judges — justices JM Shelat, KS Hegde and AN Grover — who decided against the regime under Mrs Gandhi had to resign when their junior on the Bench, Justice AN Ray, who ruled in support of the regime, was elevated as the country’s Chief Justice.

Thus, the seeds of political and judicial turmoil during the Emergency were sown much prior to its formal declaration. The fissure between the executive and judiciary was essentially a case of the most dangerous branch of the government crushing “the least dangerous branch”, as Alexander Hamilton famously described the judiciary. During the Emergency, a committed judiciary came into being and the judges often chose an approach opposite to what the majority in Kesavananda Bharati outlined.

The independence of the judiciary became a myth and what JAG Griffith explained in The Politics of the Judiciary (1977) was proved right. According to Griffith, when judges are confronted with direct political situations, “they act in broadly similar ways” and “behind these actions lies a unifying attitude of mind, a political position, which is primarily concerned to protect and conserve certain values and institutions”. When the judges (except Justice HR Khanna) declared that fundamental rights could be suspended during the National Emergency, the “political position” of the Court exposed itself, which practically annihilated the Constitution during those days. Again, the Court, while setting aside the Allahabad High Court verdict that disqualified Prime Minister 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.

Constitutions across the world are only an effort to reduce, if not to end, the evils of State power. The constitutional text, on its own, would not be able to carry out this function in the absence of a political climate that ensures the working of the Constitution. Indian politics has often not only failed the people but also the Constitution. Liberal thinker Murray Rothbard in Anatomy of the State (1974) lamented that “of all the numerous forms that governments have taken over the centuries, of all the concepts and institutions that have been tried, none has succeeded in keeping the State in check”.

The contemporary judicial reality across the world is more dispiriting. In a 2020 paper titled Abusive Judicial Review: Courts against Democracy, David Landau and Rosalind Dixson wrote: “In some cases, courts have upheld and thus legitimated regime actions that helped actors consolidate power, undermine the Opposition, and tilt the electoral playing field heavily in their favour.” They also found that “clever authoritarians often do their manipulation well before elections have actually been held, by consolidating power, stacking key institutions such as courts and electoral commissions, and harassing opposition parties and leaders”. Countries like Russia, Brazil, Poland, Hungary, Ecuador, Philippines, Venezuela have demonstrated that populist autocracies can weaken the courts. Bad political ambience can only create an equally bad court system, despite our expectations to the contrary.

Though there were many unconventional judgments in social action litigations after the Emergency, where the Supreme Court as an institution tried to regain its glory that was lost during the tough times, they hardly challenged the functional edifice of the executive or legislature. They could not have done so. As such, India, like any other democracy, should guard against the fragility of its judiciary.

Such vigilance might yield better results sometimes, as illustrated by the postscript to Kesavananda Bharati case. In October 1975, the then Chief Justice of India AN Ray constituted a 13-member Bench for considering a review of the Kesavananda Bharati judgment. It was done without any reference by any Bench and was based only on the directives of the CJI. Lawyer Nani Palkhivala objected to these aberrations and argued against revisiting the radical judgment. Justice Murtaza Fazl Ali asked Palkhivala if the Kesavananda Bharati judgment was against Palkhivala’s clients would he have asked for a review. Palkhivala’s reply was that had it been the case, there would be no Supreme Court by then where he could have come! Ultimately, the Bench was dissolved and the judgment retained.

The history of the Emergency years offer significant lessons for the country’s democracy. The most important one being that the Constitution survives only when its institutions remain vigilant, and not with rhetoric.

Kaleeswaram Raj is a lawyer at the Supreme Court of India. The views expressed are personal.