Thread by @barandbench

45 years since the Emergency: How the electoral practices case against Indira Gandhi progressed in the courts - writes Namit Saxena

@namitsaxena2007 #indiragandhi

barandbench.com/columns/45-yea…

The Allahabad High Court held then Prime Minister Indira Gandhi to be guilty of corrupt electoral practices and disqualified her from contesting elections for 6 years.

By this time, overturning of executive decisions by the judiciary at various intervals had orchestrated a struggle on the issue of custodianship/guardianship of the Constitution. Indira Gandhi was trying hard to craft a ‘committed judiciary’ of judges favouring the government.

Before the case under discussion, 3 judgments delivered by Supreme Court unsettled Indira Gandhi.
1) I. C. Golaknath & Ors vs State Of Punjab
2) RC Cooper vs Union Of India (Bank Nationalization Case)
3) Maharajadhiraja Madhav Rao vs Union Of India (privy purses case)

In January 1971, the Election Commission allotted symbol of a cow and a calf to Indira Gandhi’s Congress and she appointed Yashpal Kapoor, who had recently resigned as a gazetted officer, as her election agent.

Raj Narain, who was backed by all the opposition parties, was the main opponent against Indira Gandhi in Rae Bareily (Uttar Pradesh). The only other opponent was Swami Adwaitanand, who contested as an independent candidate. The election was conducted on March 7, 1971.

The next day, Raj Narain, confident of winning, took out a victory procession. Counting started on March 9, and the result was announced on March 10. Indira Gandhi won the election by over 1,10,000 votes.

Raj Narain, influenced by the rumour about chemical treatment of ballot papers & corrupt electoral practices, filed an election petition in April 1971 through RC Shrivastava before Allahabad HC. He engaged Shanti Bhushan [then a member of INC (O)] to represent him.

The trial ran an interesting course. Interrogatories filed by RC Srivasatava were objected to by Khare, but allowed by Justice Broome of HC. The matter reached the Supreme Court, before Justices CA Vaidyalingam, KS Hegde and HR Khanna, but the SLP was dismissed as withdrawn.

Raj Narain sought to amend his petition qua the date on which Gandhi became a candidate. This was rejected by HC. The matter reached the Supreme Court again, and a Bench of Justices Hegde, PJ Reddy and KK Mathew, vide a unanimous decision, allowed Raj Narain to amend petition.

During pendency of the election petition by Raj Narain, in April 1973, the judgment in Kesavananda Bharati was pronounced and Justice Hegde again decided against the Indira Gandhi government.

Gandhi swiftly responded and Justices Shelat, Grover and Hegde were superseded in the line of seniority by making a pro-government judge - Justice AN Ray - Chief Justice of India.

The Supreme Court through 5 judges – CJI AN Ray, KK Mathew, NL Untwalia, RS Sarkaria and A Alagiriswami JJ heard the appeal against refusal of state privilege and allowed the same in January 1975.

Oral evidence of the respondent started in February 1975. Amongst others, Indira Gandhi also went to the court to testify, the first for a sitting Prime Minister of the country. She was cross-examined by Shanti Bhushan.

Amongst rumours of offer of elevation to the Supreme Court to Justice Sinha and reports of threats to the secretary of Justice Sinha to leak the operative part of the judgment, the judgment was pronounced on June 12, 1975.

Allahabad High Court: Indira Gandhi was found to have indulged in corrupt practices.

Justice Sinha accordingly disqualified Gandhi from holding any public office for a period of 6 years from the date.

Immediately after the judgment, SC Khare filed an application for stay of operation of judgment. Interestingly, immediately thereafter, on an application by Gandhi’s lawyers, an ex parte stay order came to be passed by Justice Sinha, staying judgment unconditionally for 20 days.

Gandhi appealed before SC. As summer vacations were running, the appeal came to be presented before the vacation judge – Justice VR Krishna Iyer. At that time, the vacation judge, unlike today, sat only on Tuesdays and Fridays.

The date of hearing was fixed on the coming Monday i.e. June 23.

After hearing the arguments on stay application, Justice Krishna Iyer reserved judgment and pronounced the same on the next day, June 24, at 3:45pm.

After hearing Shanti Bhushan and Nani Palkhivala (for Gandhi), a conditional stay was granted, but it was clarified that there was no legal embargo on Indira Gandhi continuing as the Prime Minister.

Next day, June 24, 1975, opposition leaders including Jai Prakash Narayan, Atal Bihari Vajpayee, LK Advani, Morarji Desai & Charan Singh were picked up and lodged in jails and at 10 AM, Indira Gandhi announced that President Fakhruddin Ali Ahmed had declared national Emergency.

In July, 38th Amendment to Constitution was passed by Government, making the Emergency non-justiciable. In August, Govt introduced the Election Laws (Amendment) Bill, which sought to amend retrospectively all the corrupt practices on which her election had been challenged.

Another Bill was introduced by the law minister HR Gokhale, holding that any dispute arising out of election of the President, Vice President, Speaker and the Prime Minister will only be gone into by a forum constituted under a special law by Parliament. @PMOIndia #IndiraGandhi

CJI AN Ray and other senior-most judges – Justices Khanna, MH Beg, KK Mathew & YV Chandrachud, started hearing the appeal from August 1975. Incidentally, these were the last 5 judges left in the Supreme Court who had decided the Kesavananda Bharati judgment.

After Palkhivala withdrew from the case due to imposition of Emergency, Gandhi retained Jagannath Kaushal & Ashok Sen to argue the case. Raj Narain ( lodged in jail) challenged the 39th Constitutional Amendment before the Court in the same proceedings.

November 7 Judgment: All 5 judges wrote separate opinions. CJI Ray, Khanna, Mathew & Chandrachud declared the constitutional amendment invalid but declared the election amendment law valid thereby reversed the Allahabad HC judgment & declared Indira Gandhi’s election valid.

MH Beg J did not decide the validity of the constitutional amendment, but declared the election law amendment valid.

Importantly, it was also laid down that the basic structure doctrine does not apply to ordinary legislation, but only to constitutional amendments.

A review petition was preferred against the judgment of MH Beg J by Raj Narain, but the same was dismissed. #Kesavananda

5 months later, the SC pronounced its decision in ADM Jabalpur v. SS Shukla. Justice Khanna dissented & he was superseded from becoming the CJI by the government, with the appointment of Justice Beg as CJI. As a result, Justice Khanna resigned.

The Emergency was revoked in 1977 and general elections were conducted.

Indira Gandhi lost the election and the Janata Party rose to power. Raj Narain emerged victorious. He was made the health minister in the Janata Party government.

Shanti Bhushan was made a member of the Rajya Sabha (1977-1980) and held the office of Union Law Minister in the Morarji Desai government from 1977 to 1979.

The five Supreme Court judges who decided the case chose different paths after the case.

Justice Hans Raj Khanna :

KK Mathew J was made Chairman of the Second Press Commission, then the Law Commission, and then the Commission under Rajiv Longowal Accord for Punjab/Haryana, all by the Indira Gandhi government.

CJI AN Ray did not accept any post retirement assignment by the government.

After retiring as CJI, MH Beg was made a director of the board of the National Herald group run by the Congress party and was awarded the Padma Vibhushan in 1988, shortly before his death, by Indira Gandhi’s son and the then Prime Minister Rajiv Gandhi. @NH_India

Justice YV Chandrachud retired in 1985 after 7 years as the CJI, and remained active in arbitrations. He served as Chairman of the Assam-Meghalaya Boundary Commission and as Chairman of the Sakal Papers Pvt Ltd.