Book Review: The Case That Shook India: The Verdict that Led to the Emergency by Prashant Bhushan.

This book depicts one of the landmark cases in the history of the Indian judiciary, that is “Indira Nehru Gandhi v/s Raj Narain” (also known as State of Uttar Pradesh v/s Raj Narain) in which the election of the then Prime Minister of India, Smt. Indira Gandhi was challenged by her opponent, Mr. Raj Narain which was heard at the Allahabad High Court. The court found her guilty of malpractices during her election campaign following which, she was barred from holding her office for the next 6 years. Following the judgement from the High Court, a state of Emergency was declared from June 1975 till January 1977.

Mr. Prashant Bhushan, is an Indian Human Rights Lawyer, Social Activist and Politician (Swaraj India).

? Background of the Case

In 1971, 5TH Lok Sabha General Elections were held in India. Raj Narain and Indira Gandhi were the two contenders with tough combat against each other for the Raebareli constituency. When the Results were proclaimed, It was observed that Indira Gandhi won the Elections by securing 352 out of 518 seats. The result was distasteful for Raj Narain as he was very optimistic about winning the Elections with a huge margin. A Night before the declaration of results, Raj Narain even held a thrashing rally in the Constituency.

Raj Narain, The Leader of Ram Manohar Lohias SSP struck out to raise his voice against Indira Gandhi to nullify the Elections by filing a petition before the High Court of Allahabad on 24TH April 1971. He professed that Indira Gandhi performed Election malpractices. He also alleged that Indira Gandhi that she has violated the election code which is mentioned in the Representation of People Act 1951. In his petition, He even purported that Indira Gandhi had used government resources for election purposes and distributed blankets and liquor to the Voters to influence them.

On 12th June 1975, Justice Jagmohan Lal Sinha of the High Court of Allahabad found Indira Gandhi guilty of misusing government resources under sec 123(7) of the Representation of People Act,1951. The High Court of Allahabad held that Indira Gandhi could not hold the Office of Prime Minister, Further, she could not contest elections for another six years. The Indira Gandhi filed an appeal against the decision. The Supreme Court during that time was on vacation so she was granted a conditional stay.

Thereafter, President Fakhrudeen Ali Ahmed declared an emergency due to internal disturbances but the real decision took place because of the judgment of Raj Narain vs Uttar Pradesh

On 11 August 1975, The Supreme Court ordered both the Parties to appear before the Court but on 10Th August 1975, The President passed the 39th constitutional amendment, which introduced Article 392 A to The Constitution of India. Article 392 A States that, the election of the Speaker and Prime Minister can not be questioned in any court of law, It can only be confronted before a committee formed by Parliament itself. Thus, This put a bar on the Supreme Court to decide the Indira Gandhi case. Therefore, The Constitutional authenticity of the 39th Amendment was challenged in Indira Gandhi V. Raj Narain.

1. Preliminary Court Proceedings: On 27th December 1970 the president dissolved the Lok Sabha at the advice of Mrs Gandhi and called for an early election in March, which was earlier scheduled in 1972. On 29th December 1970, Mrs Gandhi held a press conference regarding the elections, at the conference someone told her that the opposition leader said that Mrs Gandhi was changing her constituency from Raebareli to Gurgaon'. To this, she replied emphatically,' No, I am not.' (Mrs Gandhi had won her first election to the Lok Sabha from Raebareli in the 1967 General Election)

Raj Narain was a very optimistic man and he firmly believed that he would indeed win. The results, however, shook him, and he started believing the stories which were being circulated about the chemical treatment of ballot papers. Indra Gandhi winning the election with a huge margin was so surprising that other opposition leaders started believing that the ballot papers might indeed have been treated chemically so that the ink of the actual stamp mark disappeared after some time.

The Representation of People Act, 1959, specifies that the result of an election announced by a returning officer can only be challenged by an election petition brought before the High Court in whose jurisdiction the election was contested.

Raj Narayan went to Ramesh Chandra Srivastava, a lawyer in Allahabad (now Prayagraj) and he also decided to engage Shanti Bhushan as his senior counsel. Shanti Bhushan was very well known for most political cases without charging any fee.

The final draft of the petition contained the following charges:

a. Mrs Gandhi had procured the assistance of Yashpal Kapoor for her election prospects while he was still a gazetted officer.

b. Swami Adwaitanand was bribed to stand as a candidate from Raebareli.

c. Mrs Gandhi procured the assistance of members of the armed forces by ordering them to fly her to election meetings in Air Force planes.

d. Mrs Gandhi procured the assistance of the District Magistrate and the Superintendent of Police of Raebareli and other police officers for erecting barricades and rostrums and making loudspeaker arrangements for her election meetings.

e. Mrs Gandhi's agent freely distributed liquor, quilts, and blankets among the voters of Raebareli.

f. Mrs Gandhi used the symbol of cow and calf, to appeal religious sentiments of the voters.

g. Yashpal Kapoor and other agents of Mrs Gandhi hired several vehicles for the free conveyance of voters to the polling stations.

i. Mrs Gandhi and her agent authorized expenditure much beyond the prescribed limit of ?35k for the election.

2. In the High Court: On 15th July 1971 hearing commenced in the Court of Justice B.N.Lokur. Raj Narain requested the court to call the Prime Minister before the court to dispose and also to provide the govt. documents so that the court can take cognizance of them but this request was rejected. Raj Narain then turned to the Supreme Court where a 3-judge bench heard his appeal. The Case continued in Allahabad High Court until 1974 when Indira Gandhi filed in the Supreme Court that she required a privilege not to produce the Blue Book as evidence in court.

The Bench of five judges of the Supreme Court granted her appeal by setting aside the order of the High Court not to produce the Blue Book as a shred of evidence. They also directed that this particular case shall be heard by a single judge, Justice J.L. Sinha.

On 12th June 1975, A final verdict was given by the court charging Indira Gandhi to be guilty of corrupt practices. The Court also stated that government facilities and officers were involved in her campaign and she tried to influence the voters. The Judge that she will no longer be a member of Lok Sabha. Justice Sinha also granted the respondents a stay for 20 days on the verdict.

FACTS IN ISSUES

a. This put a question on the validity of clause 4 of Article 329 of The Constitution of India.

b. This threw light on the constitutional validity of the Representation of People (Amendment) Act, 1974

c. This also raised the question of whether the Election of Indira Gandhi was void or not.

d. The Symbols of cow and calf which were used by Indira Gandhi were an appeal to hurt the sentiments of people and committed a corrupt practice under section 12(3) of the Representation of People Act.

e. It was also seen that quilts, blankets, and dhotis which were distributed by the agent and officers were distributed to induce the voters.

3. The Repercussions: 12 June 1975 is a very vital day in Indian history, on this day Mrs Gandhi got three jolts in a day, (if ever asked Mrs Gandhi which is the worst day in her life or which day would it be excluded from her life? that would be 12th June 1975).

a. Early in the morning she got the news that DP Dhar an Indian ambassador to the USSR (now Russia) and later a politician died in an operation.

b. In the noon Gujarat assembly election results, which was held on 10th June 1975, congress lost by 13 seats to the opposition

c. Mrs Gandhi got the news of the judgment by Justice Jagmohanlal Sinha from Allahabad High Court, that she was found guilty in two matters.

? Yashpal Kapoor assisted Mrs Indra Gandhi as an agent from 7th January 1971, but he resigned from the Gazetted officer with the Government of India on 13th January 1971.

? DM and SP of Raebareli and other police officers arranging to erect barricades and rostrums and making loudspeaker arrangements for her election meetings.

Representation of People Act, 1951 123(7) defines "The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the consent of a candidate or his election agent, any assistance (other than the giving of the vote) for the furtherance of the prospects of that candidate’s election, from any person in the service of the Government"

Justice Jagmohanlal Sinha pronounced Indira Gandhi, the then Prime Minister, guilty of corrupt electoral practices and nullified her election as Member of Parliament from Raebareli in Uttar Pradesh. Justice Sinha also held that Indira Gandhi stood barred from contesting another election for six years.

Allahabad High Court had given 20 days to the Congress party to decide who would be the next leader and they could appeal in Supreme Court

On 23rd June 1975 Mrs Gandhi challenged and put an absolute stay on the decision of Allahabad High Court and on those days it was Summer vacation for the Supreme Court there was a vacation bench to hear the important cases. on 24th June interlocutory judgment by Justice V. R. Krishna Iyer from the Supreme Court said that there would not be an absolute stay in this matter but a partial stay could be given, which means she can continue to be the Prime Minister of India but she cannot exercise the right to vote and cannot attend meeting in Loke Sabha until the supreme count gives the final verdict.

Post verdict Piloo Mody composed a poem,

Humpty Dumpty sat on a throne,

Humpty Dumpty out was thrown.

All the Queen's asses and all the

Queen's yesman, could not put

Humpty on the throne again.

In the late evening of 54th June 1975, Sanjay Gandhi, Bansi Lal (then CM of Haryana), Siddhartha Shankar Ray (then CM of West Bengal & a prominent Lawyer), stenographer R. K. Dhawan and P. N. Dhar principal secretary to PMO has attended the close circle meeting with PM Indra Gandhi, S.S. Ray said we will invoke the power of article 352 internal emergency, in Constitutional Provisions under article 352 there is two emergency, external emergency when country is at war and internal emergency when there I internal disturbance.

Later on the same day Mrs Gandhi and S.S. Ray went to the President of India Mr Fakhruddin Ali Ahmed (marionette of Mrs Gandhi), he approved within an hour and asked Mrs Gandhi to send an order, R.K. Dhavan then took the order to Mr Fakhruddin Ali Ahmed and get it signed.

The All India Radio broadcast the emergency and it spread like wildfire across the country.

4. Validity of The Constitutional Amendment: Opposition party leaders were thrown into jail and some were house arrested, and censored by all media houses in those days current PM, Mr Narendra Modi was somewhere in exile in the Himalayas. Nanabhoy Palkhivala, who was representing Mrs Gandhi in the court left the case once the emergency was laid. The constitutional bench gave its decision on 7th November 1975. The apex court upheld the contention of Raj Narain and declared the impugned clause 4 of Article 329A unconstitutional. due to various reasons, the court struck down the 39th (Amendment) Act, of 1975 as it was unconstitutional and violated the basic structure of the Constitution. The Supreme Court was ignorant on its part to say that it was a matter of the Parliament and the Supreme Court couldn’t deal with such an issue. It is the Supreme Court must safeguard the Constitution, it is considered the watchdog of the Constitution, and here the Constitution was being tampered with unlawfully but the Supreme Court didn’t deal with the matter saying it was out of its jurisdiction which was a sign of political influence.

It was because of these Amendment Acts, that Indira Gandhi could easily get away. She abused the powers conferred upon her as the Prime Minister for her own advantage. The amendments took care of all the charges that were put on her by the Allahabad High Court. She likewise made sure that Yashpal Kapoor’s resignation was held authentic by Section 8(b) of the Amendment Act, 1975, by adding Explanation 3 in Section 123(7) of the People’s Representative Act. These two changes made it simple for her to demonstrate that she didn’t take any help from Yashpal Kapoor while he was a Gazetted officer.

5. Validity of the Election Law Amendments: The Supreme Court was unmindful in managing this issue. Indira Gandhi had abused her powers to adjust the very laws that charged her of being corrupt and the Supreme Court stayed quiet, and when Raj Narain argued for equity, all the Supreme Court could do was to give him long superfluous reasoning of how the issue was out of its ward.

The Hon’ble Supreme Court was well aware of the fact that Indira Gandhi had made the amendments to satisfy her political exigencies and had unconventionally imposed an emergency to save herself from being proved guilty. Raj Narain had to wait for years and what he got was unwanted reasoning. Yet, the Supreme Court upheld the constitution in some way as it struck down clauses 4 and 5 of Article 329 as being violative of the basic structure.

Conclusion: The achievement of the judiciary (in the HC judgement) and the subsequent abuse of power is stark. The way the same incident/factoid is used by both the prosecution and defence to support their respective stand is fascinating, to say the least. The way the counsel for either side argued over the separation of powers between the arms of the Government i.e., the legislature and the judiciary, as well as the constituent power, is fascinating. The arguments, counter-arguments, and rebuttals read like a thriller. It is indeed a must-read for every student, as well as anyone interested in modern Indian history.

Learning: Liberally littered with legalese and legal references; references to articles of the Constitution, sections and clauses of various statutes, and references to past judgements.

It is in no one hands to snatch the power of freedom in a democratic country, the power of expressing, approval and disapproval of the individual of what is right and wrong for the people should be in the hands of the people.