The Ill-conceived Verdict That Led to the Emergency

 

The Ill-conceived Verdict That Led to the Emergency

The national emergency of 1975 has been a subject of debate. I was a student of MA Part I Political Science class, University of Bombay, when the emergency was declared.  The issue was debated in the class, students sharply divided for and against the emergency. I spoke in favour of the emergency, justifying it under the volatile and explosive political situation then prevailed in India. In my article Remembering Indira Gandhi, who dismantled Pakistan (31.10.2020), I have given a brief background to the Emergency.

 

Prashant Bhushan in his book The Case That Shook India (Penguin Books 2018) gives a detailed account of the emergency, based on the notes he made of the court hearings. This write up is based on his book. It is an attempt to put the Emergency in right perspective.

 

The General Election to Lok Sabha was held in March 1971. Indira Gandhi won the seat from Rae Bareli Constituency, defeating Raj Narain- the candidate of opposition alliance-by a margin of more than 1,10,000 votes, and Raj Narain securing only 71,499 votes. However, he subsequently filed a Petition in Allahabad High Court in April, challenging Mrs. Gandhi’s election, and engaged Shanti Bhushan to argue his case. The charges against her, inter alia, included:

1.      that Mrs. Gandhi had procured the help of Yashpal Kapoor for her election while he was still a gazetted officer in the government;

2.      that Mrs. Gandhi had procured the assistance of a number of government gazetted officers and members of the police forces for furthering the prospects of her election by erecting barricades for her visits and constructing rostrums for her speeches.

3.      that she had procured the services of members of the armed forces for the furtherance of her election prospects by flying the Air Force planes by them;

4.      that the symbol of a cow and calf used by Mrs. Gandhi was a religious symbol.

Mrs. Gandhi in a written statement filed in the Court on 5 August denied that Yashpal Kapoor did any election work for her before resigning. He resigned on 14 January 1971.  She said that she travelled in Air Force planes on the basis of the standing instructions of the Government of India regarding the travel arrangements of the Prime Minister; and that the construction of barricades and rostrums were not for furthering the election prospects; they were merely for the law-and-order purpose. Incidentally, it may be recalled that these arrangements were made by an opposition Chief Minister Charan Singh, who was heading the BLD government in Uttar Pradesh, as matter of protocol and for security of the Prime Minister.  Mrs. Gandhi denied that the cow and calf symbol was a religious symbol as it was allotted to her party by the Election Commission.

Justice Jag Mohan Lal Sinha heard the Petition. On 12 June 1975, he delivered the verdict. He held Mrs. Gandhi guilty of corrupt practices on the following two grounds and declared her election to the Lok Sabha void, granting her 21 days stay on the Order:

 (a)” It is true that according to the gazette notification, the resignation of Shri Yashpal Kapoor has been accepted with effect from 14 January 1971. It cannot, however, be ignored that the order accepting the resignation was passed on 25 January 1971. Till that order was passed the status of Yashpal Kapoor continued to remain that of a government servant despite the fact that the order was given retrospective effect as to be valid from 14 January 1971.” The Judge held that Kapoor’s resignation became effective only from 25 January, and, therefore, Mrs. Gandhi obtained the assistance of Kapoor for the furtherance of her election prospects before 25 January. What a strange logic and absurd ground to hold the Prime Minister guilty of a corrupt practice.

 (b)    The Judge held that the rostrums constructed by officers of the state government enabled Mrs. Gandhi to address her meetings from a dominating position. “I do not think it was indispensable for the state government for the maintenance of law and order or security that its officers should have taken upon themselves to get rostrums constructed for the meetings of Respondent No.1 and to take arrangements for the supply of power for the functioning of the loudspeakers at the meetings. Both these things could have been left to be arranged by the political party concerned.” The Judge held Mrs. Gandhi guilty of a corrupt practice on this issue.  He had no objection for using these facilities by the party but objected the state government arranging them. He seemed to have lost sight of the fact that the Respondent was the Prime Minister and, therefore, it was incumbent on the part of the state government to take care of the arrangements to provide security for her. 

Mrs. Gandhi’s election was declared void on flimsy grounds. She was acquitted of all other charges. It was the first time that the election of the Prime Minister set aside, no parallel in the history of any democracy in the world. Her legal advisers, party leaders, the cabinet advised her against resigning since the court had granted the stay. She preferred the appeal in Supreme Court and Nani Palkhivala, who was otherwise a vocal critic of Mrs. Gandhi, accepted her brief.

The Opposition parties were preparing for nation-wide agitation to force Mrs. Gandhi out of office. Their strategy was to mobilize public opinion against her continuing in office. They organized a massive rally at the Ramlila Grounds on 22 June. They asked the people to organize themselves and prepare for a non-violent agitation to force Mrs. Gandhi out of office.  They did not give a final call for the agitation that day. They were waiting for the outcome of the Supreme Court hearing on Mrs. Gandhi’s stay application.

 

The Appeal came up before Justice Krisha Iyer, when the court observed the vacation. The Appeal was listed for hearing on 23 June. As this was going on in the Supreme Court, a massive rally was addressed by Mrs. Gandhi on the Boat Club grounds. It was estimated that about five lakh people attended the meeting. Opening his argument, Palkhivala contended that the trial judge of the Allahabad High Court had made ‘manifest errors’ in holding Mrs. Gandhi guilty of two corrupt practices.  Commenting on assistance of government servants, he said that they were only following the instructions of the state government and performing their duty as ‘part of the routine security drill undertaken for the Prime Minister. If the election was set aside on this ground, it would have alarming consequences. Today it might be set aside for the construction of rostrums, but tomorrow it would be set aside for barricading, and then for police arrangements. There can be no elections in these circumstances.”

 

The whole country had followed the arguments in the Supreme Court through the newspapers with great interest.  Justice Iyer delivered the judgment on 24 June around 4.00 p.m.  He granted a conditional stay. He said: “There will be a limitation regarding the appellant’s participation in the proceedings of the Lok Sabha in her capacity as Member thereof, but independently of the membership, a Minister and a fortiori, the Prime Minister, has the right to address both Houses of Parliament, without right to vote though, and has other functions to fulfil…There will thus be no legal embargo on her holding the office of Prime Minister.” The Union Law Minister Gokhale said that there was no resignation issue now. The Congress leaders appealed to the Opposition to end their satyagraha. However, the Opposition parties interpreted the conditional stay as having vindicated their stand.  And they were bent on going ahead with their plans of holding a massive rally at the Ramlila grounds on 25 June.   

 

At the Opposition rally, Jayaprakash Narayan (JP) appealed to the Chief Justice of the Supreme Court A.N. Ray not to be a member of the Bench which heard Mrs. Gandhi’s appeal.  He also “deliberately reiterated his appeal to the police and armed forces not to obey illegal orders of the government. He challenged the home minister Brahmananda Reddy to try him in court for high treason for this statement.” The same night 25 June, the National Emergency was declared. And within eight hours of his speech, JP was detained. The police swooped down on almost all Opposition leaders the same night across the country. While Morarji Desai, Charan Singh, Raj Narain, Piloo Mody and Ashok Mehta were detained in Delhi, L.K. Advani, Atal Behari Vajpayee, Shyam Nanan Mishra, Madhu Dandavate and others were detained in Bangalore.  The next morning, Mrs. Gandhi came on air to inform the nation that the President had declared an Emergency ‘to thwart the Opposition move to imperil the country’s security.’ The Emergency was declared under the Article 352(1) of the Constitution for internal disturbance. The rest is history.

 

On 7 November 1975, the five-member constitution bench of the Supreme Court,comprising of Chief Justice A.N. Ray and Justices H.R.Khanna, K.K.Mathew, M.H.Beg and Y.V.Chadrachud, accepting the appeal of Indira Gandhi, had, in an unaimous verdict,upheld her election and reversed the Allahabad High Court judgment. Looking back, it is appropriate to draw these inferences: Had Justice Sinha not unseated the Prime Minister on frivolous grounds; had JP and the Opposition shown some restraint and not given open call to police and armed forces to revolt against the government, and instead waited for the outcome of her appeal in the Supreme Court, the nation could have been saved from the Emergency and its aftermath. It is the ill-conceived verdict that led to the Emergency.

It is unfair to call Indira Gandhi a ‘dictator’, ignoring the grounds on which Justice Sinha declared her election void.  How many politicians in India and abroad, could ever stand such minuscule scrutiny by a Court? Her critics denigrate her at every opportunity tracing the emergency for every evil in our political system, even after nearly five decades, as if she did nothing else for the nation except imposing the emergency to perpetuate her 'authoritarian' régime, willfully bypassing her monumental achievements and supreme sacrifice for the unity and integrity of the country.  After all, it was she who restored the democracy by ordering the general election in March 1977 and revoked the emergency.