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Mainstream, VOL LVI No 11 New Delhi March 3, 2018

The Emergency Era and Surrender of Judiciary

Monday 5 March 2018

BOOK REVIEW

by Hemaadri Singh Rana

The Case That Shook India by Prashant Bhushan; Penguin Random House India Pvt. Ltd.; 2017; pp. 314; ISBN: 9780670090051; Rs 499.

Fortytwo years ago, a High Court judgement brought the entire country to a standstill. The judgement was passed against the then Prime Minister of India, Mrs Indira Gandhi, who was held guilty of corrupt practices during the 1971 elections and debarred from holding any government position for a period of six years. As the furore gained momentum, India went through an unnerving experience, witnessing a harsh blow to its democracy. The Emergency was imposed, for the first time in Indian history, using Ordinance provisions with the President’s approval. Along with it followed a range of amendments and government orders, making the prospects of retaining democratic freedom even bleaker.

The Case That Shook India provides a detailed historical and legal account of the case Indira Gandhi v. Raj Narain. The book reproduces the court proceedings, sets the context explaining the sudden imposition of the Emergency, and re-ignites the debate regarding constitutional limitations over the powers of legislature and judiciary. The unique feature of the book is the first-hand information, gathered by the author, of the court room proceedings and arguments therein during the phase of press censorship. Although the reverberation of shock, produced through the case, was felt across the nation with the allegations posed against the Prime Minister, and the onset of the Emergency era subsequent to her conviction, it didn’t end there. The shock, with slight change in its nature, remained consistent throughout the 1970s, from the conviction of Mrs Gandhi in the High Court judgement to the shattering of people’s hopes in the reversal of the judgement by the Supreme Court, to the elections of 1977 and the rise of a new non-Congress regime.

Taking account of the rapidly changing social and political scenarios in India and reflecting over the present concerns of electoral funding and corruption, the author brings forth the historically significant case of Indira Gandhi v. Raj Narain, revisiting the time when the course of Indian political history strayed off the beaten track. Despite the High Court’s watershed judgement on the case, the author complains of the sheer indifference shown by political parties and state institutions towards assessing the electoral funding and corruption level even today. Irrefutably, several attempts have been made over time, proposing different amend-ments, with the ostensible motive of making elections more fair and transparent. Such proposals for amendments, he contends, such as lowering the limit of cash donations allowed, from Rs 20,000 to Rs 2000, donations through electoral bonds, donations through subsidiaries of foreign companies and so on, would have minimal cumulative effect in changing the situation. Recognising the role that money power plays in politics, he suggests two reforms essential to change the nature and process of elections: the replacement of ‘first-past-the-post elections’ with the ‘proportional representation system’, like in Switzerland, and changing the election funding criteria of the state.

The book is divided into five sections. While the first section sets the context of the election petition filed against Mrs Indira Gandhi, the second section narrates the intense arguments of both sides in the High Court, and the subsequent High Court verdict. The reper-cussions of the verdict are dealt in the third section. The last two sections provide the debate and arguments inside the Supreme Court, subsequent to the appeal made by Mrs Gandhi’s counsels during the Emergency. As the media was prohibited from covering the case in the Supreme Court under the dark shadow of the Emergency, Prashant Bhushan, who was present in the Court during the proceedings, keeping a neutral approach, provides an objective display of debates and discussions that took place within the four walls of the Courtroom.

‘Indira Gandhi v. Raj Narain’: Story in Brief

In the first two sections, the author provides details of the High Court proceedings after the filing of Raj Narain’s petition. Like almost every case, the story cuts two ways, of that of the petitioner and that of the respondent. The petitioner, Raj Narain, the then chosen candidate of the Opposition, contested the 1971 election opposing Mrs Gandhi in the constituency of Rae Bareli. Mrs Gandhi won the election. Shocked by the election result, Narain accused Mrs Gandhi of deploying corrupt measures in order to alter the result. He filed an election petition against her in the High Court with the help of eminent lawyers Shanti Bushan, as his senior counsel, and R.C. Srivastava.

Their version of story goes like this: After the dissolution of the Lok Sabha on December 27, 1970, Indira Gandhi held herself out as the prospective candidate from Rae Bareli. This claim could be proved from her response in an interview where to the question as to whether she was planning to change her constituency from Rae Bareli to Gurgaon, she replied, ‘No, I’m not.’ The All India Congress Committee announced their final decision regarding the constituency of Indira Gandhi on January 29, 1971. Her tour programme, which also included visiting her constituency, Rae Bareli, for filing the nomination papers was scheduled for February 1, while the final date of nomination was February 3.

For the purpose of the tour programme, she used the planes of the Indian Air Force for her travel to Rae Bareli for election meetings. She procured the assistance of the State Government of UP for the arrangement of speakers and rostrums for her election meetings. She had been provided with the police force and barricades by the State Government. Her election expenses, thus, had exceeded the set limit of Rs 30,000. Moreover, Yashpal Kapoor, despite holding a government position, had acted as her election agent all this while, even before the completion of his resignation process. Mrs Gandhi was also accused of using the religious symbol of cow and calf, provided by the Election Commission, which increased her chances of winning.

Under the election law, most of the afore-mentioned activities amount to corrupt practice which, if proven, could result in invalidation of the election arth the candidate being prohibited from holding any public office for six years.

Gandhi’s counsels, on the other hand, submitted that: Mrs Gandhi decided and had begun to hold herself out as the prospective candidate for the constituency of Rae Bareli from February 1, after the filing of the nomi-nation papers and not a day before. As the Prime Minister of India, the air planes, for which she had paid, were provided for her tour programme and not for her election campaign. The arrangements of speakers and rostrums by the State Government for her election meetings were done in accordance with the instructions given in the ‘Blue Book’ and keeping in view the security concerns of the Prime Minister. Yashpal Kapoor had not acted as her election agent. Finally, the symbol of cow and calf was not a religious symbol and it was assigned by the Election Commission, and the party had simply accepted it following the instructions.

Summing up the arguments of both sides, in the chapter titled ‘The Verdict’, the author provides the highlights of the judgement when the High Court, weighing the arguments of both the parties in balance, held that Gandhi, who began holding herself as the prospective candidate since the dissolution of the Lok Sabha, was guilty of procuring the assistance of Yashpal Kapoor as well as the State Government of UP. Declaring the 1971 elections void, the court barred Gandhi from holding any government office for six years.

Derailed Democracy on the Tracks of Totalitarian Rule

Mrs Gandhi was held guilty of corrupt practices in some of the charges by the High Court, after the hearings.

The third section of the book presents the repercussions faced in the aftermath of the High Court judgement. The clamour of the media and Opposition compelling Gandhi to resign was shockingly silenced with iniquitous exercise of her prerogative power. Beset by the clouds of the Emergency, people witnessed demo-cracy being smothered with every passing government order and amendment. Voices of dissent were silenced with illegal detentions of Opposition leaders in different parts of the country. No news was allowed to be published without prior examination by the Censor. The Emergency was made non-justiciable with the Thirtyeighth Constitution Amendment Act. All previously corrupt activities during elections were corrected with the amendment of election laws, passed with retrospective effect. With the introduction of the Thirtyninth Constitution Amendment Act, the power to decide over election disputes concerning the President, the Vice-President, the Speaker, and the Prime Minister, was conferred to a forum constituted through a special law, where the decision of the forum could not be challenged in any court.

Meanwhile, Mrs Gandhi’s counsels appealed to the Supreme Court for reviewing the High Court judgement, which was necessary for her continuance as the Prime Minister. With the application of amended laws, the author asserts, the reversal of the High Court judgement was inevitable. Shanti Bhushan, thus, decided to strike at the validity of the amendments to prove how they were a travesty of the basic feature doctrine of the Constitution.

Chawla’s Case and Kesavananda Bharati’s Case

Two cases received much attention throughout the hearings of the case (in the High Court as well as the Apex Court): Kanwar Lal Gupta v. Amar Nath Chawla and Others (1974), and Kesavanada Bharati and Others v. State of Kerala and Another (1973). Questions regarding the powers of Parliament and role of the judiciary were raised and dealt with in the two cases.

The Representation of People Act, enacted in 1951, provides the guidelines for the conduct of parliamentary elections. Clarifying the ambiguity prevailing in the matter of election expenses, the Supreme Court in a judgement on Amar Nath Chawla’s case, concerning the issue of election expenses, drew a clear distinction between expenditure on general party propaganda and that on an individual election candidate. The judgement held that the expenditure authorised by any person, with, express or implied, consent of the candidate or his/her election agent, would be counted as the expenditure incurred by the candidate only, and would be included in the return of election expenses.

Reversing the judgement, however, a few days later an Ordinance was passed to amend the Representation of People Act. It claimed that the expenditure incurred by the political party, friends or any supporter of the candidate would not be counted as the expenditure incurred for the candidate’s election, if it is not incurred or authorised by the candidate. The amendment was given retrospective effect, with the aim of nullifying the influence of the judgement given in Chawla’s case on Mrs Indira Gandhi’s case. The amendment reflected the idea that Parliament held the upper hand in formulation of laws and was powerful enough to reject the interpretation given in the judgement.

Providing his own interpretation of the amendment, S. Bhushan argued that the amend-ment ‘converted democracy to moneycracy’ by making it easy for the candidate to exclude any amount of expenditure from return, if s/he merely gets an authorised letter from the party or a friend for the expenditure incurred. Bhushan challenged the validity of the amendment on the grounds that it had infringed Article 14 of the Constitution, destroyed the democratic feature and was beyond the power conferred by Article 327 of the Constitution.

So far as Chawla’s case was concerned, Gandhi’s counsels contested its applicability to Gandhi’s case as the expenditure incurred in the latter’s case was for security purposes which were like ‘personal expenses’. To the then Attorney General, Niren De’s comment, calling the distinction of expenditures made in Chawla’s case as ‘illusory’ and challenging the practical validity of the judgement, Bhushan reminded the Court of Article 141 of the Constitution, under which, the wisdom of the Supreme Court could not be questioned. Contradicting the retrospective aspect of the amendment, he warned the Court of possible manipulation of laws rendered through retrospectivity and thereby their misuse in the name of public interest. He further added that the amendment was in contravention to the judgement on the Kesvananda Bharati case.

In 1973, the Supreme Court, in Kesavananda Bharati’s case, had called certain features of the Constitution as ‘basic features’, immune from violation under any circumstances, even through parliamentary legislation. The tussle between Parliament and the judiciary revolved around this significant case. Judicial review, democracy and equality were a few basic features, Bhushan alleged, abrogated by the amendments, both the 1974 Amendment and Thirtyninth Amendment Act.

Gandhi’s counsels argued that election disputes, being a ‘political question’, were purely a matter of legislature, which is a ‘sovereign’ power, and thus, should be decided by it only and the judiciary had no role to play in such matters. Contesting the view that judicial review was the basic feature of the Constitution, Niren De contended that the Constitution had not conferred any such power to the judiciary to review the election disputes. Article 329 (b) of the Constitution, he added, had provided that the matter of elections was to be finally decided by the legislature, confirming again the plenary powers of Parliament. Because Articles 31B and 31C had been upheld in Keshavananda Bharati’s case, which implied that Acts included in the Ninth Schedule were not subject to judicial review, it was argued that assessment of the validity of the Thirtyninth Amendment Act was beyond question.

The arbitrariness of validating elections, Bhushan retaliated, destroyed democracy as well as equality. While challenging the consti-tutional validity of the Thirtyninth Amendment Act as against the basic structure doctrine laid down in Kesavananda Bharati’s case, Bhushan argued that Parliament could only act as the judicial power by reorganising the structure already given in the Constitution through an amendment. Without such amendment, checking the validation of laws falls under the ambit of the judiciary.

On being questioned by Justice Mathew if he recognised the inconsistency between judicial review and democracy, Bhushan submitted that when Parliament, representative of the will of the people, fails to be fair on certain issues by passing an unconstitutional legislation, the judiciary by striking down the unjust provision upholds the will of the people, thereby representing the democratic feature. And by eliminating the judicial review, it goes against Article 136 of the Constitution, which is the ultimate power of the judiciary. Further clarifying Justice Mathew’s query as to why such argument of the basic feature had not been applied in the USA to strike down a legislation, Bhushan stated that in the USA, the clause of ‘due process’ fulfils such a requirement.

The author, by the end of the book, also points out how, in the meantime, when the hearings of Mrs Gandhi’s case were still pending in the Supreme Court, a separate Bench was constituted by the then Chief Justice A.N. Ray to review Kesavananada Bharati’s case which was posing the central constraint in Mrs Gandhi’s case. After having heard arguments in this regard for two days, however, the Bench was dissolved for some reason.

Validity of Constitutional Amendments and Election Laws Amendment Act, 1975

In the wake of a number of amendments being passed, in 1975, for, what the then legislators called, ‘plugging the loopholes’, S. Bhushan had no choice left other than contesting the validity of these amendments. The author, in the fourth and fifth sections of the book, provides the argu-ments set forth by both the parties regarding the in/validation of constitutional amendment and election laws amendment of 1975 respec-tively. Specific changes were made in the definition of the ‘candidate’ contesting elections, to legalise the assistance of government officials in election work, the Election Commission’s power to disqualify the candidate, and regarding the appointment/resignation of a government official through these amendments.

Bhushan first attacked the legality of the Parliament session which passed the amend-ments, by shedding light over the illegal deten-tions through which a number of Opposition leaders, breaching their fundamental rights, were illegally detained and kept off from attending Parliament. To this, Gandhi’s counsels, citing a case, responded that in the absence of any legal remedy for an act, such act could not be claimed as illegal. Similarly, as Indian law does not provide any legal remedy for the detention of Members of Parliament, their detention could not be held illegal.

Stating that Parliament possessed full authority over setting the norms of these laws, Sen, one of Gandhi’s counsels, regarded amendments similar to that of ‘royal directives’ or ‘firmans’ given under native Indian princes. Calling such amendments ‘colourable pieces of legislation’ which were meant for a particular single case through retrospective legislation, Bhushan submitted that these amendments contravened the basic feature of equality, present in the Constitution. To the argument regarding Kanta Kathuria’s case where disqualification of Kathuria was also removed by retrospective legislation validating the election, Bhushan argued that as the laws were legislated having retrospective effect which changed the rules of elections, unlike Kathuria’s case where no rules were altered, they had discriminated the candidates on the ground of equality. However, commenting on the retrospectivity of the amend-ments, Sinha argued that amendments had merely clarified the law and not changed it, removing a lot of unnecessary ambiguity.

Severely attacking such arguments, Bhushan contended that removal of time specificity from the definition of a candidate from the election law and validation of the 1974 Amendment on election expenses would turn the laws on corrupt practices meaningless. Moreover, legalising the assistance of government officials for the purpose of elections, he argued, would only help the ruling party to use the entire government machinery to further the prospects of their party’s candidate, discriminating against other candidates.

On the issue of religious symbol, Bhushan was of the view that even if a religious symbol was allotted by the Election Commission, one should keep note of the fact that the symbol was allotted on the request of the party, from which the party candidate could not be divorced, by a quasi-judicial body which is not as independent as the judiciary. As the religious symbol had the potential to affect the election results, elections had to be called void. S. Bhushan, as observed by the author, was quite confident of his arguments and hopeful that judges would also ‘resist the pressure in such extraordinary conditions’. Despite the visible influence of S. Bhushan’s convincing arguments within and outside the court, the judgement rendered by the Supreme Court, however, stunned everyone, shattering the hopes of many who awaited the normalisation of the state of affairs. The Bench had reversed the High Court judgement. The judges had validated the election and relieved Gandhi of all the charges, although striking down the constitutional amendment. This move of the Supreme Court, upholding the parlia-mentary supremacy, marked the failure of the judiciary and to an extent, disseminated distrust for the judicial procedure amongst the public.

Branding the book as a mere guide to a factual description of the 1970s would be a bum steer; rather it successfully recreates the intense social and political scenario as well as legal struggle persisting during the time. The book, with its republication after thirtyfive years, acquires significance from the congruence it implicitly sets between weak laws on electoral expenses still prevalent in India and similar laws contested in the 1970s. It succeeds in producing a flashback of the sudden turn of political and judicial scenario during the Emergency era, and the pressure hovering over the judiciary to function keeping the terms and norms set by the legislature intact. The proceedings in the Court are reproduced in a plausible manner that attempts to exhibit the motives of the two pillars of the Constitution at that point of time, and stimulating arguments between judges and counsels. The book is a must read not only for scholars of the legal background, but also for those who aspire to illuminate themselves with the political history of the 1970s, and are all set to immerse themselves into the intriguing minute details of court proceedings and original testimonies of Indira Gandhi and Yashpal Kapoor respectively.

The reviewer is a scholar from the Centre for Political Studies, Jawaharlal Nehru University, New Delhi. Her research interests include forced migration, climate change, feminist theory and practice, political philosophy.

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