“It gives me no pleasure to stand before you today, especially in this unscheduled manner”, began Thakur’s address to a gathering of the press at his residence. He spoke in a stern and low baritone voice, “We are facing an unprecedented attack on the Constitution under the current government and the acting president. Even during the emergency and with the passage of the forty-second amendment, the constitution was not as disfigured as what the latest amendment has done. It is all but a murder of this text that has, from the beginning, been the bedrock of our nation. The great lawyer and jurist, Nani Palkhivala, argued before this court in 1975 against Chief Justice A. N. Ray’s decision to review the basic structure doctrine. He passionately and eloquently showed the court that day that the country and the constitution will not survive overturning the basic structure. I am reminded of his words today as if they were prophetic and cautionary. I know it is improper for the highest functioning judicial officer to address the public directly in this manner, but I am afraid that if I do not do so now, it might be too late. I am, therefore, going to publicly disclose all the issues with the latest amendment, the unconstitutional judgment which enabled this amendment, and the unconstitutional actions which the government are further willing to take. First, on the thirteen-judge bench which overruled the Kesavananda decision and held that the parliament has an unrestrained and unlimited power to amend the constitution, including the power to modify, vary or repeal. Many judges are still unclear on the constitutional ground of this decision. This decision is not a result of any appeal from a high court. This decision is not a result of a reference from a lower bench of the supreme court to a larger constitutional bench. This decision was not the result of a reference for an advisory opinion by the president. This decision was purely the fruit of Justice Ramalingam’s efforts to subvert the constitution. Even the composition of the bench is suspect given that many senior judges in the supreme court were unwilling to review the basic structure doctrine and, as a result, no serious dissenter was appointed to the bench. Even the four dissenters in the judgment were specifically cherry-picked by the chief justice to give the decision a sense of legitimacy. Selection to the bench was not as per the convention of seniority in constitutional matters but according to the personal whims and predilections of Justice Ramalingam. If this is not gravely improper enough, there is more. In addition to the technical issue that a thirteen-judge bench is perhaps insufficient to overrule another thirteen-judge bench, the decision itself is subject to grave substantive errors. Judgment after judgment in the supreme court, over the last six decades, has consistently upheld the basic structure doctrine and has created a wealth of jurisprudence and discourse emanating from this doctrine. In its early years, it faced substantive criticism. But it must be kept in mind that over the years, the judiciary has evolved this doctrine with a great amount of care, consistency, rationality and thought. Even the famous jurist who was once against it, H. M. Seervai, later realized this doctrine’s importance for the country and supported it. Such an entrenched doctrine, such a well-respected and sophisticated doctrine, a doctrine adopted in many other jurisdictions after our landmark decision, has been wiped out due to malicious efforts and insidious aspirations. Mr. Palkhivala was right. No sooner did the bench hand out the decision overturning the basic structure doctrine, the government mutilated the constitution. Sacrosanct rights, the fundamental rights given to the people by the people, has been snatched away by a parliament and a government which had no authority to do so. The constitutional amendment has defaced the constitution and its trailblazing principles beyond recognition. We are left with but a trace of what was a great, historic, document. If that is not enough, I have credible information from a top administrative officer that the government is planning a supersession in the Supreme Court. If ever there was a doubt that things can become worse than 1975, the current events dissipate that. This, I truly believe, is the darkest of times that the country has ever faced. As the acting Chief Justice, I am left with no option but to inform the citizens of the country of the a-constitutional and unconstitutional state that we are living in now. No questions please. Thank you.”

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The five men were less stunned than frenzied. Ramalingam smoked cigarettes one after the other while watching Thakur’s speech. Soon after Varun turned the television off, Ramalingam, crimson-faced, yelled, “Who’s the leak? WHO THE *$CK is the leak??” Manohar, Panicker, Desai and Varun looked frozen, and visibly surprised with Ramalingam’s tone, who usually managed to maintain his composure even in the most pressing of circumstances. The telephone rang and Desai handed the cordless receiver from the table to Ramalingam. Ramalingam took the phone to an adjacent room to receive the call.

“It must be a staff here, Varun,” said Manohar. “This is treason” responded Varun, “We’ll have to get the IB to investigate the leak.” Ramalingam walked back and sat at his desk, his anger unmitigated and clearly visible on his face. The four men moved from the sofas to his table. “Sashikala informed me that the Home Ministry wants to book Thakur under the Official Secrets Act and possibly even sedition.” “NO! That will only make it worse, Ram. You need to do damage control now!” responded Manohar. “Yes, Mano. I told her that it will be extreme. She’s coming here. We need to figure out how to respond soon.”

“Well, I have an idea” spoke Desai, almost getting up from his chair, “Carry out the supersession irrespective of this. Banerjee’s party and its ideology is well received in the country. Mention that you are doing this to protect the vision and the ideology. That Thakur is unwilling to change to the needs of the country.” Ramalingam nodded as he lit another cigarette. “Sashikala is furious! She wants Thakur to pay a price for this,” Ramalingam informed, “anyways, Varun, draft a statement that Thakur is entirely wrong on the merits of overturning the basic structure. Gajendragadkar wrote a lot against the doctrine when he was the chairman of the law commission. Those arguments are good and you can use them. Also mention that the government can ask the supreme court to consider an issue without the president referring the matter for an advisory opinion. The court has suo-moto powers and the Chief Justice can constitute any bench as he deems fit for it, as the master of the roster. I also want the leak to be found on priority, I have a few guesses….”, the door opened interrupting Ramalingam. Sashikala walked in, and in a furious tone, informed the men in the room, “this guy needs to go! Who the hell does he think he is? Do you judges think that you are elected representatives?” As the four men searched for a response, Ramalingam advised her to calm down and poured her a glass of water. As she took a sip and kept the glass down, she sighed and asked, “Can we impeach him, Varun? We anyway wanted to supersede him, and now we can impeach him and Manohar can take the office?” “Perhaps, but we need a strong and public rebuttal against him first. You should probably go to the press today”, advised Varun. “Absolutely not. I am not going to be dragged into his nonsense. Ram, I will not have Thakur strike down the amendment! How can he even go to the press and speak about it when the matter is sub-judice?” asked Sashikala, still furious. “He has not constituted a bench yet, Mrs. Banerjee. Although it is absolutely improper for a sitting a judge to speak publicly on these matters, it is not sub-judice per se” said Desai in his slow pace. “No, no, no! The writs have already been filed. Once filed, the matter is sub judice” intervened Manohar. “I don’t really care! I want him impeached. I actually want to throw him behind bars, but Ram feels it will be too drastic” said Sashikala. Varun received a call on his cell phone. It was from the law secretary.

Thakur has constituted a bench to consider the writs against the amendment. Desai, Panicker, and Manohar are all part of a fifteen-judge bench which will review the constitutional amendment and the judgment that enabled it. Hearings will begin in one months’ time and the parties have been notified. Ramalingam looked at the composition of the bench and sneered. “This can go either way. We might fall short of the 8 votes we need. We need to impeach! Or, as Sashi says, we might need to bring in criminal charges against him.”

Chapter 2 can be found here: https://www.legallyindia.com/convos/topic/237709-chapter-2-the-persuasion

Chapter 1 here: https://www.legallyindia.com/convos/topic/237313-chapter-1-the-overthrow