The Case That Shook India: The Verdict That Led to the Emergency

318 Pages·2017·1.34 MB·English

by  Prashant Bhushan

PRASHANT BHUSHAN

THE CASE THAT SHOOK INDIA
The Verdict That Led to the Emergency
Foreword by M. Hidayatullah
PENGUIN BOOKS
Contents
Foreword
Preface to the New Edition
Introduction
1
PRELIMINARY COURT PROCEEDINGS
1. From Electoral Battle to Court Battle
2. The Petition
3. The PM in Court
2
IN THE HIGH COURT
4. The Petitioner’s Opening Arguments
5. The Attorney-General Defends the Amendment
6. The PM’s Counsel
7. The Petitioner’s Rejoinder
8. The Verdict
3
THE REPERCUSSIONS
9. Rumblings after the Judgment
10. The Stay Order
11. Law? What Law?
4
VALIDITY OF THE CONSTITUTIONAL AMENDMENT
12. ‘It Destroys Democracy’
13. ‘PM Can Be above the Law’
14. ‘Amendment Is Like a Firman’
15. Emergency Measure or Tranquillizer?
5
VALIDITY OF THE ELECTION LAW AMENDMENTS
16. Rules of the Game Changed Retrospectively
17. ‘Rules Not Changed, Merely Clarified’
18. ‘Parliament Cannot Interpret the Law’
19. The Supreme Court Judgment
20. Epilogue: From Court Battle to Electoral Battle
APPENDICES
1. Testimony of Yashpal Kapoor
2. Testimony of Mrs Indira Gandhi
3. The Supreme Court Reviews the Kesavananda Bharati Case
4. Review Application against Justice Beg’s Judgment
5. The Representation of People Act, 1951—Part VII, Section 123
6. The Representation of People (Amendment) Act, 1974—No. 58 of 1974
7. The Election Laws (Amendment) Act, 1975—No. 40 of 1975
8. The Constitution (Thirty-ninth) Amendment Act, 1975
Footnotes
2. The Petition
3. The PM in Court
4. The Petitioner’s Opening Arguments
5. The Attorney-General Defends the Amendment
6. The PM’s Counsel
9. Rumblings after the Judgment
11. Law? What Law?
12. ‘It Destroys Democracy’
13. ‘PM Can Be above the Law’
14. ‘Amendment Is Like a Firman’
15. Emergency Measure or Tranquillizer?
16. Rules of the Game Changed Retrospectively
19. The Supreme Court Judgment
1. Testimony of Yashpal Kapoor
3. The Supreme Court Reviews the Kesavananda Bharati Case
Acknowledgements
Follow Penguin
Copyright
Foreword
Elections to Parliament and the legislatures of the states are regulated in two
ways by law. The first relates to the conduct of the elections by the Election
Commission and the second to the personal conduct in it of the candidates.
Unlike in other countries, the duty of deciding whether the election was fair and
free and if the candidate was guilty of a corrupt practice is entrusted to the High
Court and finally to the Supreme Court.
After the election is over, the defeated candidate or a voter can challenge the
election of the successful candidate by proving irregularities in the conduct of
the election by the authorities and/or by proving corrupt conduct on the part of
the candidate. In no other way can the result of the poll be challenged. The
courts apply to such cases the standards which they usually apply in trials before
them. Such cases are like any other case. The allegations made must be strictly
proved. Some judges call these quasi-criminal proceedings. This is not an apt
description. They rather resemble the trial of allegations of fraud, subject to this
that the benefit of the doubt goes to the successful candidate.
Ordinarily, I have found more perjury in these cases than in others. Political
motivation often colours evidence and courts have to be very careful in assessing
partisan testimony. This task becomes even more difficult when the actions of
the candidate are also partly referable to his official position. Such was the case
dealt with here.
The book deals with the election petition filed by Raj Narain to challenge the
election of Mrs Gandhi in the 1971 election to Parliament. The author has
recorded the day-to-day progress of the case through all stages. He is the son of
the counsel for Raj Narain and was presumably present at conferences and in the
courts. He has first-hand knowledge of all facts. He has narrated them in a very
readable form, describing the proceedings objectively. He has also outlined the
many steps by which legislative interference righted what was found wrong at
the trial. So much so that the Supreme Court was not even allowed to decide the
case in appeal. This was an unusual and undesirable feature of the case. Only
one case (McCardie case) was withdrawn from the Supreme Court of the United
one case (McCardie case) was withdrawn from the Supreme Court of the United
States. It was not an election case but never afterwards was a pending case
withdrawn from the courts. All the events are told without acrimony by the
author and the comments that one finds are legitimate.
I have had my share of election trials as a judge of the High Court and the
Supreme Court. Twice I unseated ministers and once upheld an election. There is
no doubt that Justice Sinha proved equal to the task. He decided every issue
adequately and his reactions during arguments were also relevant and proper.
Whether one agrees with his conclusions or not, none can accuse him of taking a
strained view of facts. It must be remembered that a person in authority can and
should always prevent from acting overzealously the officials who go out of
their way to act in aid of such a candidate. The higher the position of the
candidate and the more the availability of official aid, the more the risk of
allegations.
Justice Sinha, in my judgment, has rightly been strict. Although I do not say
that I agree with him on every point pro or con, this much I can say, that my
approach, by and large, would have been similar. In any event Justice Sinha and
Judge Sirica of the Watergate case have much in common just as there is a
parallel between Shanti Bhushan and Jaworski in the same case.
I have enjoyed reading the book and have found much that was not in the
newspapers and I recommend it to the reader.
Bombay M. Hidayatullah
1 October 1977 MA (Cantab); LLD,
Bencher Lincoln’s Inn and former Chief Justice of India
Preface to the New Edition
It’s been forty years since The Case That Shook India was published. The book
has been out of print now for more than thirty-five years and during these years
many people have asked me for copies of this book, including lawyers, law
students and academics. I have been giving out photocopies of the book to
several people and then many suggested that I should get it republished. I am
aware that this book has inspired a number of students to study and practise law
and hope that it continues to do so.
The Indira Gandhi v. Raj Narain1 case was important for several reasons. It
was the first time in independent India’s history that a Prime Minister’s election
was set aside. It was also the first time that a constitutional amendment was
struck down on the basic structure doctrine that had been propounded a couple
of years prior, in the Kesavananda Bharati case (1973). It was also the first time
that election laws had been retrospectively amended to validate the annulled
election of the Prime Minister. The hearing of the case in the Supreme Court of
India took place during the Emergency, when fundamental rights had been
suspended, press censorship was enforced and therefore there was no public
reporting of the case or its hearings. While it was being heard in the Supreme
Court, my notes were probably the only ones available as a record of what really
transpired during the hearing. I had taken detailed notes of the hearing including
the questions asked by the judges and their responses by the counsels, many of
which have been reproduced in the book.
The case also impacted Indian politics in a big way. The elections that ensued
after the Emergency saw the wiping out of the Congress and the installation of
the first non-Congress government at the Centre. That government however
collapsed within two years, due to infighting amongst the leaders of the various
parties who had hastily come together to form the Janata Party. This then led to
the split of the Janata Party and the formation of the Bharatiya Janata Party
(BJP). This was a landmark development in Indian politics. The BJP contested
its first election in 1984, soon after Mrs Gandhi’s assassination, when it won
only two seats. By the early 1990s, however, the BJP had stirred up the Ram
Janmabhoomi campaign, and riding on its back, it won a substantial number of
seats, which paved the way for its eventual victory in 1996.2
The ascendance of the BJP in the twenty-first century has been one of the
most significant events of Indian political history. This can be attributed largely
to the vacuum left by the Congress. Modi’s rise too can be attributed partly to
the anti-corruption movement (Jan Lokpal movement) that took place in the
country in the year 2011–12. He used the momentum created by that movement
to demolish the Congress with the promise of ending corruption, graft and black
money. Arvind Kejriwal also did the same for coming to power in Delhi.
Unfortunately, neither of them has appointed a Lokpal yet. In fact, it has been
reported that Modi’s government has not worked to strengthen the anti-
corruption institutions like the Central Bureau of Investigation (CBI), Central
Vigilance Commission (CVC), the whistle-blower law and even the Prevention
of Corruption Act.3
Coming back to the central issue of the Indira Gandhi v. Raj Narain case, it is
unfortunate that the spectre of dubious electoral funding has not gone away even
today, more than forty years after the judgment in the case. Currently the law is
that the political parties are allowed to accept cash donations up to 20,000 from
each person, which are not required to be reported. Donations above that figure
need to be reported to the Election Commission, the details of which can
thereafter be obtained by citizens under the Right to Information (RTI) Act
2005. The Association of Democratic Reforms (ADR) has been obtaining such
details and has recently discovered that about two-thirds of political parties’
funds come from unaccounted sources. Among the national parties, 83 per cent
of the total income of the Congress and 65 per cent of the BJP came from
unknown sources.4
Since parties are not required to keep any accounts of who has donated the
money or how much has been received, they simply report that they received a
lump sum amount as cash donations from undisclosed donors. This lump sum
amount is usually in the multiples of hundreds of crores of rupees. This has led
to parties accepting a lot of black money in large amounts from various donors
as illustrated in the Birla–Sahara diaries also. On top of this, there is the problem
of political parties not coming within the ambit of the RTI Act, though the