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

Namit Saxena

June 1975 depicts the darkest month in the history of independent India. 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. After she was not granted a total stay by the Supreme Court, Gandhi imposed national Emergency upon the country.

45 years since then, let us attempt to paint a picture of the case.

Foremath

A few important points must be kept in mind. By this time, overturning of executive decisions by the judiciary at various intervals had orchestrated a struggle between the two organs of State 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, three judgments delivered by the Supreme Court unsettled Indira Gandhi. In Golaknath (1967), the Supreme Court held that the amending power does not enable Parliament to override all express or implied limitations on that power and it could not amend Part III of the Constitution.

In February 1970, in RC Cooper (bank nationalization case), the Supreme Court dealt with a law which nationalized 14 banks. Although the Court laid down that Parliament had the legislative competence to do so, it struck down the law for want of sufficient compensation. The law had to be passed again with higher compensation.

The third case was related to privy purses given to the erstwhile rulers. Privy purses were constitutionally guaranteed and were charged on the Consolidated Fund of India. In 1967, many princely rulers joined the Swatantra Party led by C Rajagopalachari and emerged victorious. Indira Gandhi, in an attempt to control the same, introduced the 24th Constitution Amendment Bill. Although passed in the Lok Sabha, this Bill failed in the Rajya Sabha.

Gandhi therefore used another way. She advised the President to use powers under Article 366(22) and derecognize the rulers. The President acted on the advice and issued various notifications. The move was challenged before the Supreme Court, which held it to be unconstitutional (Justice AN Ray dissented and ruled in favour of Indira Gandhi).

Justice AN Ray dissented and ruled in favour of Indira Gandhi
Justice AN Ray dissented and ruled in favour of Indira Gandhi

Nine days after this judgment, Gandhi advised the President to dissolve the Lok Sabha. After this advice was accepted, elections were called in early March 1971. 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 and Indira Gandhi
Raj Narain and Indira Gandhi Wikipedia / GuruPrasad

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.

The case

Raj Narain, influenced by the rumour about chemical treatment of ballot papers amongst other grounds of corrupt electoral practices, filed an election petition in April 1971 through advocate Ramesh Chandra Shrivastava before the Allahabad High Court. He engaged Senior advocate Shanti Bhushan [then a member of INC (O)] to represent him.

The grounds included allegations against Yashpal Kapoor of bribery to Swami Adwaitanand, distribution of quilts, blankets etc, providing conveyance to voters to and from polling booths, exceeding the expenditure limit, using Yashpal Kapoor while he still was a gazetted officer with the government alongwith other such officers, using police force for furthering prospects of her election by erecting barricades, using the Armed Forces to further her election by flying in Air Force planes, and that her election symbol (cow and calf) was a religious symbol. Indira Gandhi engaged SC Khare to represent her.

Shanti Bhushan represented Raj Narain
Shanti Bhushan represented Raj Narain

The trial ran an interesting course. Interrogatories filed by RC Srivasatava were objected to by Khare, but allowed by Justice Broome of the High Court. 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 the High Court. 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 the 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.

Consequent to the amendments made, the Allahabad High Court, now through Justice KN Srivastava framed three additional issues. Thereafter, oral examination of petitioner’s witnesses commenced. SS Saxena, then an under secretary with the Confidential department, Uttar Pradesh appeared as a petitioner’s witness but refused to produce few documents on the ground of ‘state privilege’.

The High Court rejected the claim of privilege and the matter reached the Supreme Court again. The proceedings before the High Court were adjourned till the Supreme Court decided the issue. After the retirement of Justice Srivastava, the matter came to the court of Justice Jagmohan Lal Sinha, who directed to produce evidence on other issues in the meanwhile.

Justice Jagmohanlal Sinha of Allahabad High Court who delivered the judgment in Raj Narain vs Smt Indira Gandhi
Justice Jagmohanlal Sinha of Allahabad High Court who delivered the judgment in Raj Narain vs Smt Indira Gandhi Wikipedia

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. Before the commencement of final arguments, Raj Narain also challenged an amendment to the election law on expenses by a candidate, which was introduced by the government to nullify a hostile decision in Chawla’s case.

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.
Raj Narain vs Indira Gandhi

On May 23, 1975, the last day before the summer break, arguments were concluded by the parties. 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. Indira Gandhi was found to have indulged in corrupt practices on account of rostrums constructed by government officers and that her election agent Yashpal Kapoor worked at her instance in the election while being a gazetted officer.

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

Aftermath

Immediately after the judgment, SC Khare filed an application for stay of operation of the judgment. Interestingly, immediately thereafter, on an application by Gandhi’s lawyers, an ex parte stay order came to be passed by Justice Sinha, staying the operation of the judgment unconditionally for 20 days. When RC Srivastava came to know about it, he preferred a review application against this ex parte order, which came up for hearing only a few days late before the vacation judge and had become useless by then.

Gandhi appealed before the Supreme Court. 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. On June 20, the Advocate-on-Record for Gandhi, JB Dadachandji, mentioned the matter for an early date. 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.

The next day, June 24, 1975, at midnight, political leaders of the opposition including Jai Prakash Narayan, Atal Bihari Vajpayee, LK Advani, Morarji Desai, and 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, the 38th Amendment to the Constitution was passed by the government, making the Emergency non-justiciable. In August, the government 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. There was a special provision for elections already in place which would have declared the election of Indira Gandhi valid and the High Court judgment as void. The 39th Constitutional Amendment was thus passed, and Article 329A was introduced.

The Supreme Court, through Chief Justice AN Ray and the other senior most judges – Justices Khanna, MH Beg, KK Mathew, and 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. All of these except Khanna J (who wrote the majority) had rendered separate dissenting opinions.

After Palkhivala withdrew from the case due to imposition of Emergency, Gandhi retained Jagannath Kaushal and Ashok Sen to argue the case. Raj Narain (also lodged in jail) challenged the 39th Constitutional Amendment before the Court in the same proceedings. After a detailed hearing for around 30 days, the arguments by both sides concluded on October 9, 1975 and the Court retired for the Dussehra break.

On November 7, the Supreme Court pronounced its judgment. All five judges wrote separate opinions. CJI Ray, Khanna, Mathew and Chandrachud JJ declared the constitutional amendment invalid but declared the election amendment law valid, and thereby reversed the Allahabad High Court’s judgment and 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.

On November 10, CJI Ray constituted a 13-judge bench to review the decision in Kesavananda Bharati. Palkhivala strongly objected to it. The bench, mysteriously created, was mysteriously dissolved after 2 days of arguments.
Review of Kesavananda Bharati

Five months later, the Supreme Court pronounced its decision in ADM Jabalpur v. SS Shukla. Justice Khanna dissented and he was superseded from becoming the CJI by the government, with the appointment of Justice Beg as CJI after Justice Ray retired a few months later. 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. Khanna J, after resignation was offered by the Janata Party to head the Maruti Commission of Inquiry. Khanna refused, as it would have meant dealing with Indira Gandhi and her son Sanjay Gandhi and as he had decided against her, public confidence in his verdict may be attacked. He also declined chairmanship of the 7th Finance Commission, but accepted to become Chairman of the Law Commission without salary. He also accepted to become the Minister of Law in the Morarji Desai government, but resigned after 3 days. In the 1982 Presidential elections, he contested against Giani Zail Singh, but lost. He was honoured with the Padma Vibhushan (second highest civilian award) in 1999.

Justice Hans Raj Khanna
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. 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.

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.

After retiring as CJI, MH Beg was made a director of the board of the National Herald group run by the Congress party

This case shall ever remain relevant!

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The author is an Advocate-on-Record at the Supreme Court of India.

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