April 28, 1976-2001  

What is common between Hitler, Marxism and thinning of Ozone layer. The existence of all these and several other historical events engulfed the humanity and formed the basis and sub conscience forces and deep sentiments of judges perception and made their impact felt in determination of constitutional and public issues of far reaching importance of 'mera Bharat mahan'. The ongoing perception that is holding the field is government over business, industries and traders; minority, backwards and have-nots above government and environment above all. The shift from 'will of law' to 'will of judges' is natural.

Every case, and more so when it relates to of basic, fundamental and constitutional issues such as individuals freedom, personal liberty, public interest, state authority, minority rights, environment, human rights etc., the judges' width and depth of perception is finally tested. The determination in its ultimate analysis depends on the way the judges present a solution to bring about harmony in the chaos felt by them. It also depends on the vision, socio-political environment (national as well as international), readings, analysis and economic background of individual judges. The appointment made to the highest offices on basis of some connection do not therefore, always give, desired results. In words of justice Benjamin N. Cardozo- 'Deep below consciousness are other forces, the likes and dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions....' and human limitations.

The scenario which weighed heavily on the mind of majority while deciding Keshvanand Bharti was Hitler. In words of Justice P. Jaganmohan Reddy (a majority judge) "......I, on my side also tried to convince them (Baig and Dwivedi) that my mind was that if the amendment is without any limit, you can replace democracy with dictatorship, autocracy or even convert the State into monarchial system. When I was in England during the my student days, I followed the manner in which Hitler, though he was appointed by President as the Chancellor under the Weimar Constitution exercised the power of amendment to declare himself the President and exercised unlimited powers under the Constitution to convert the State into dictatorship".

The judges who constituted the minority in Keshvanand Bharti and had seen and felt the final rise of Marxism at the end of industrial age (post second world war) as the solution to 'garibee hatao', joined with positive thinking, committed and forward looking judges constituting the majority in MISA Case. (every one gets a chance to glorify himself in his lifetime for five minutes, the important factor is the (in) glorification forming part of the history). The majority judges in MISA Case, choicelessly, did not feel the fear of the ghost of Hitler and deposed complete and full faith in the power of the elected representatives of the greatest democratic institution and the executive. They upheld unlimited power of the executive which may even rise over and above (whatever name you may call) the rule of law, human rights, basic structure, inherent limitation etc.

One must keep the remembrance of the past, only as the remembrance gives one pleasure, but the memory must neither be short nor must it lapse. Ignorance is not defence for the learned, the intellectuals and the decision makers and history and precedents must be read and understood to pave path for future. The paradigm shift from industrial age to electronic-information age and theory of relativity to string theory will require deeper analysis of issues which will continue to test 'judge's human material' as contra-distinguished from 'rhetoric intellectual capacity'. It will be difficult to shrug off decision making responsibility and rely on relativity and legal uncertainties for every judge will have to clearly state her/his positions as to whether she/his stands for State power or right of privacy; personal liberties, individual freedom or public interest.

One of the greatest contribution of MISA Case for which it will always be remembered, is justice H.L. Khanna's desent which kept the flame of justice alive in the thunders and storm around. It is akin to existence of Vibhishana in Lanka during Ravan's regime or Dhurv in Hirnakashyap's regime and one will always wish that Supreme Court will not have justice Khanna's opinion as minority but will have it as the unanimous opinion in times to come and never wish to review it. Fundamental and basics are not plastics which could be molded in the fire of intense convictions of a being, they can only be applied judiciously to the approaching events and that is 'justice'.

Aruneshwar Gupta

April 28, 2001