A collection of addresses by Justice K.K. Mathew along with excerpts from his judicial opinions, published in 1978 under the title Democracy, Equality and Freedom , became the first work of its kind in Indian legal literature. Regrettably, it was also the last! The hope expressed by its editor, Prof. Upendra Baxi, that it would be the precursor of similar literary ventures in the future remained unfulfilled.
Making a mark
In a practical sense, the book, Democracy , Equality and Freedom , published by the Eastern Book Company — with a foreword by Justice Y.V. Chandrachud, Chief Justice of India — is why Justice K.K. Mathew is still remembered, 40 years after he stopped sitting in India’s Supreme Court. But for the illuminating and exhaustive 86-page introduction expounding the judicial creativity and craftsmanship of the judge, K.K. Mathew would have been just one judge out of a roll-call of 186 judges who had sat in India’s Supreme Court. Prof. Baxi has been moved to say that Justice Mathew’s minority opinion in Kesavananda Bharati (one out of several in a Bench decision of 13 judges) “ensures him the fame of being the Cardozo of India”!
The reason for Prof. Baxi’s spontaneous remark is Justice Mathew’s masterly use of contemporary jurisprudential thinking when attempting to resolve the “fundamental puzzle” of India’s Constitution. His opinion in Kesavananda Bharati is a mini-treatise on the use of jurisprudence in judicial lawmaking. Justice Mathew approached the question of amendment of the Constitution as a constitutionalist, expounding a written document of governance. He refused to accept that the makers of the Constitution ever intended that Fundamental Rights should be subservient to Directive Principles of State Policy; rather (he said) they visualised a society where rights in Part IV and aspirations in Part IV would co-exist in harmony — “A succeeding generation might view the relative importance of the Fundamental Rights and Directive Principles in a different light or from a different perspective. The value judgment of the succeeding generations as regards the relative weight and importance of these rights and aspirations might be entirely different from that of the makers of the Constitution. And it is no answer to say that the relative priority value of the Directive Principle over Fundamental Rights was not apprehended, or even if apprehended was not given effect to when the Constitution was framed, or to insist that what the Directive Principles meant to the vision of that day it must mean to the vision of our time.”
Justice Mathew concluded that the only limitation to the amending power in the Constitution was that the Constitution could not be repealed or abrogated in the exercise of the power of amendment without substituting a mechanism by which the state was constituted and organised — “that limitation flows from the language of the Article (Article 368) itself. I don’t think there were or are any implied inherent limitations upon the power of Parliament under the Article.”
Another fine moment
But whatever be the contribution of Justice Mathew to the great Fundamental Rights case, the more important — the more seminal — decision of his was in the immediately succeeding case ( Indira Gandhi v. Raj Narain : 1975 Suppl. SCC1); his opinion in this case illustrated what a strict self-disciplinarian the judge was. Like other dissentients in Kesavananda Bharati (Ray, Beg, and Chandrachud ), Justice Mathew was able to overcome the initial intellectual difficulty of reconciling his reasoning in that case with the impelling need to hold that Article 329A (challenged in Indira Gandhi v. Raj Narain) was constitutionally impermissible. Unlike Chief Justice Ray, he did not say ( Indira Gandhi v. Raj Narain ) that Kesavananda Bharati did not decide that there were any implied limitations (arising out of the doctrine of basic structure) to the amending power of Parliament. In fact he straightaway conceded (as did Justice Chandrachud) that there was a seven-judge majority (in a Bench of 13 judges) for the proposition that “the power conferred under Article 368..... was not absolute.” Having done so, in conformity with the basic norm of judicial discipline, he then proceeded to identify democracy as an aspect of the basic structure doctrine.
Article 329A as enacted had removed past, present and future operations of the Representation of the People Act, 1951, to election disputes affecting the Prime Minister and Speaker, and despite the absence of any applicable law it had (in effect) adjudicated the election dispute between Raj Narain and Indira Gandhi. In so doing, the amending body neither “ascertained the facts of the case” nor “applied any norms for determining the validity of the election”, and hence this was (according to Justice Mathew) plainly an exercise of “despotic power” damaging the democratic structure of the Constitution.
