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Why His Legacy & Defence of Judicial Independence Matters

Long Story Short: After a couple of days of elaborate arguments, Bhushan’s contention was accepted and the five judge bench unanimously struck down the 39th Amendment to the Constitution of India – “the first amendment to be struck down.”

But the court did uphold the Representation of the People Act, 1951. It also gave the benefit of the Ninth Schedule to the amendment of election law “by holding that the theory of basic structure was only applicable to the amendment of the Constitution and not to an amendment of a parliamentary act…” – a view which the Supreme Court itself changed a few years later.

“Shanti Bhushan, affectionately called Shantiji, was independent India’s most courageous lawyer,” senior advocate Dushyant Dave wrote in The Indian Express on Wednesday.

But how did Bhushan even get involved with the law in the first place?

It was not until a weekend in 1943 when he stumbled upon his father, who was a government advocate at the time, huddled with a bunch of junior lawyers and police officers contemplating a curious question of the Criminal Procedure Code (CrPC), that his curiosity was piqued.

He then followed the case proceedings all the way up till the matter was finally decided in his father’s favour. Furthermore, he went on to do BSc, but he also visited the court everyday and even helped his father draft civil briefs. By and by, Shanti managed to enrol for an LLB degree, despite the reluctance of his father who incidentally “wanted the best for me, and in those days the best was considered to be the Indian Civil Service.”

But his contribution cannot be limited to his defense of the basic structure in Raj Narain vs Union of India.

His rebuke to the then attorney general’s “casual attack” on the Keshavananda Bharati judgment, as he had argued Raj Narain’s case before the Allahabad High Court, is as pointed out by Dave “resounding even today”. Bhushan had called the AG’s “attitude towards this historic judgment…unworthy of the office he holds.”

He had also famously defended fundamental rights in the ADM Jabalpur case. But he did not win that case. Writing about it in his memoir, Bhushan noted: “That was indeed a sad day for the Indian judiciary.”

He also pointed out that two of the five judges on the bench had succumbed to political pressure and consequently their reputations had suffered.

In the years that came after, Bhushan was also involved in the setting up of Campaign for Judicial Accountability and Judicial Reform. In 2009, he signed a statement, along with other luminaries like Ram Jethmalani and Fali S Nariman, suggesting that judicial appointments ought to be made only after a public debate, including review by members of the bar of the affected high courts.

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