The Case That Shook India

Title: The Case That Shook India – The Verdict that Led to the Emergency
Author: Prashant Bhushan
Publisher: Penguin Viking, 2017 (First published 1978)
ISBN: 9780670090051
Pages: 314

India awoke to freedom at midnight while the world was sleeping on the fifteenth of August, 1947, as extolled poetically by Pandit Jawaharlal Nehru. 28 years later, on a hot summer day in June, it tumbled and fell headlong into a dictatorship instigated by his daughter and grandson. The dark night that began on June 26, 1975 would run till March 20, 1977, when the ruling party and its authoritarian prime minister were voted out of office by an indignant populace. Indira Gandhi’s era marked the pinnacle of military glory for India in the spectacular victory over Pakistan in the 1971 war. In fact, a triumph of this scale was not witnessed within a thousand years. But that was the only saving grace of her disastrous stint as prime minister of India. Having no regard for political ideals or personal integrity, her rule pushed Indian polity to the lowest depths of corruption, nepotism, separatism and sycophancy. Her populist policies devastated Indian economy in the name of socialism and put the country at least two decades behind among the world’s financial powers. In 1991, Narasimha Rao reset all that she had initiated in the 1970s and steered India back into the path of progress. Indira’s declaration of Emergency in 1975 was caused by many factors, the most serious among them Opposition protests that were growing in vehemence and stridency each passing day over price rise, loss of employment and grinding poverty. However, the proximate cause of the nation’s tipping over to dictatorship in 1975 was a court case in the Allahabad High Court in which a judge invalidated her election to parliament in 1971 which took away her claim to continue in office. This book is a detailed narrative of the case right from its filing in 1971 and till it was quashed on appeal in the Supreme Court in 1975. This is authored by Prashant Bhushan who is the son of Shanti Bhushan who was the lawyer of Indira’s opponent who argued the case against her. The junior Bhushan relies on the notes he had prepared in court while the advocates were arguing the various aspects of the case and his own father’s legal notes. This book was first published in 1978 immediately after lifting the Emergency and reprinted in 2017. You can find reviews of several books on Emergency in this blog, but this book is totally different from others as it has solely focussed on the legal aspect. Prashant Bhushan is a public interest lawyer in the Supreme Court of India most known for cases such as 2G and coal scam during the Manmohan Singh era. He is a vocal critic of Narendra Modi and the NDA government.

To say that the case against Indira Gandhi was sensational would be an understatement. The entire nation looked eagerly upon Allahabad as every legal point or loophole was assiduously dissected by both sides. It was the only hope of an Opposition that was suffering from a lack of leadership – or, the excess of it, depending on which way you look at it. The people’s verdict was crystal clear. Indira won by bagging 60 per cent of the popular vote in Rae Bareli constituency in 1971 trumping over the combined Opposition’s candidate Raj Narain. Shanti Bhushan was the senior counsel for Raj Narain who was confused on how to go forward in the case at first. The first draft of allegations claimed that magic ink was used in printing of ballots on special paper. This erased the mark stamped by voters while the pre-printed voting mark for Indira would become legible after a few days. This claim was so outlandish and ridiculous that it was dropped by the petitioner immediately and instead they focussed on corrupt electoral practices of Indira by exploiting her position as the prime minister of the country. The case trial lasted for four years in which four judges heard the arguments, the last being Jag Mohan Lal Sinha who pronounced the judgement in 1975. Oral evidence was recorded between August 1974 and January 1975. Indira Gandhi herself appeared in High Court for two days and bungled under cross-examination. Justice Sinha held Indira guilty and set aside her election as void and disqualified her from holding office for six years. However, he stayed the execution for twenty days for filing appeal in the Supreme Court. Justice V R Krishna Iyer of the Supreme Court formally stayed the High Court order but restrained Indira from voting in parliamentary proceedings. She declared an internal Emergency in retaliation and suspended the Constitution. She convened the parliament after jailing many opposition members and passed an amendment of all provisions of electoral laws on which she was disqualified with retrospective effect from 1971. This would have forced the Supreme Court to have no alternative than to validate her election. Not content with this, she introduced and passed the 39th Constitution amendment in just three days which forbade challenging the election of the prime minister in a court of law. So, by the time the Supreme Court convened to consider her appeal, she had changed all laws and even the Constitution itself to force the court’s hand. Bhushan explains the arguments and logic heard in both the courts.

Even though Indira Gandhi undoubtedly misused her power to quash the legal proceedings against her, the Allahabad High Court’s order also seems to be not furthering the course of justice. By setting aside a candidate’s thumping electoral victory over a minor technical issue, the High Court, in my opinion, acted irresponsibly and committed an equal misuse of power. Yashpal Kapoor, who was an officer-on-special duty in the Prime Minister’s Secretariat, was the electoral agent of Indira Gandhi. He resigned from his government post on Jan 13, 1971 whose resignation was accepted on Jan 25 with retrospective effect from Jan 14. He was not paid after Jan 13, nor did he attend office thereafter. However, the court refused to accept the retrospective part of the order and decided that Kapoor was still in official service till Jan 25. This made all political work done by Kapoor between Jan 14 and 25 a corrupt practice. The electoral laws applied from the date a person ‘held himself out’ as a prospective candidate. One would have expected this to come into force after the elections were officially notified on Jan 27. Justice Sinha made a strange observation here too. Court decided that the election became in prospect right from Dec 27, 1970 when the previous Lok Sabha was dissolved! Two days after the dissolution, on Dec 29, Indira Gandhi had replied to a question in a press conference that she doesn’t intend to change her constituency. Court presumed this to be her holding out as a candidate even though she was nominated by the party only four weeks later. Both these decisions made her electoral work a malpractice and corruption under law. Why did the court act in this obscure way to invalidate a clear selection made by the people? Reading between the lines, a motive is faintly visible to discerning readers. What follows is my own assessment and it is only an informed guess. This hostility might be a strike back by the judiciary for superseding three senior judges in favour of Justice Ajit Nath Ray for promotion as the Chief Justice of India in 1973. Justice K S Hegde was one of the overlooked judges. He had made an interim judgement in favour Raj Narain on a minor issue related to the same case that had gone to Supreme Court for consideration in March 1972. Ray’s appointment evoked strong resentment in the legal community and it is probable that some of the decisions against Indira Gandhi was coloured by this sentiment. In a total departure from precedent, Justice Bhagwati held in another election case involving a politician named A N Chawla that any expenditure by anybody in favour of a candidate as coming under his expenses. This clarification was made in Oct 1974 while Raj Narain’s case was pending in the High Court. Justice Sinha took cognizance of this judgment and added some more expenditure to Indira Gandhi’s account even though she still barely managed to be within the limits. All these point to the sad conclusion that the court too had exceeded its limits on legal propriety in this case.

The book provides a stark reminder of how large was Indira’s ego that brooked no obstacles and wanted total obeisance from all arms of the state, including judiciary. The 39th constitutional amendment was passed only for validating her election and forbidding anybody from questioning it in future. That both houses of parliament and half of the state legislatures ratified this piece of legislation in just three days shows the obsequiousness of her party whose leaders danced to her tune. The latter half of the book is dedicated to the appeal proceedings and the petition challenging the constitutional validity of the 39th amendment in the Supreme Court. Those who are not familiar with the scene of action in court would find it curious and a bit amusing to note the clarifying questions asked by presiding judges to the pleading counsels which sometimes appear to be naïve and childish. One judge asks, “if a company spends money on a candidate, is it an offence under penal code”? “Yes”, replies the petitioner’s advocate. The judge then asks to the astonishment of readers as to “how can the company be jailed or hanged”? The counsel then informs him that the person responsible for the acts of the company can be punished (p.231).

The book includes a foreword by M. Hidayatullah, former Chief Justice of India and former Vice President of the nation, who was a legal luminary. The only thing that is added to the previous edition is a preface to the 2017 edition which is penned by Prashant Bhushan. As can be expected, he assails the Modi government on long-standing issues and suggests unrealistic and unworkable proposals to reform even the fundamentals of elections in such a way that no party would ever gain an absolute majority in the parliament which would push the nation into confusion and policy paralysis. Of course, the judiciary and the lawyers would have a dream time deciding even minor issues as all disputes would have to be eventually settled in courts. His suggestion to adopt the proportional representation system of Switzerland is laughable, considering the size and nature of the two societies. This is all the more comic when one remembers that women were allowed to vote in Switzerland only in 1971. Many discussions inside court which are presented in the book involves the landmark Kesavananda Bharati judgement of 1973 in which the Supreme Court constrained the Parliament's power to amend the Constitution only to those provisions which are not part of the basic structure of the Constitution. At first glance, this may seem normal and even a healthy check on the House’s unbridled power. But the sting in the tail is that it is only the judiciary which can pronounce whether an amendment violates the basic structure or not. This plain usurpation of democratic powers by a few unelected judges who are accountable to none still continues. Parliament needs two-thirds majority to amend the Constitution, but a division bench requires only a simple majority to pronounce it ultra vires. Of course, Bhushan supports judiciary’s enhanced powers, but the danger is clearly visible. Two decades later, judges took upon themselves the power to appoint those who would succeed them. The collegium system is so opaque that it is not even amenable to judicial review. Still, the Supreme Court thinks that it does not violate the basic structure! The book is quite readable even though many legal points are minutely described. An epilogue on what had happened to the new laws and amendments introduced by Indira Gandhi after the Janata Party came to power could also have been included.

The book is recommended.

Rating: 3 Star