Constitutional democracy cannot be taken for granted: Decoding the Allahabad High Court’s Judgment of 12 June 1975
Dr. V. Krishna Ananth teaches at the Department of History, Sikkim University. His work focuses on Indian history, contemporary Indian politics, legal and constitutional issues. His publications include: India since Independence: Making Sense of Indian Politics (2009), Politics in the Times of Churning (2014), The Indian Constitution and Social Revolution: Right to Property Since Independence (2015) and Between Freedom and Unfreedom: The Press in Independent India (2020). He held a fellowship at the Nehru Memorial Museum and Library, New Delhi (May 2009–April 2011), during which he researched on Retreat of the Nehruvian Socialist Project: A Study on the Political, Legislative and the Judicial Interventions. He tweets @VKrishnaAnanth
This essay is part of a series by Prof V. Krishna Ananth where he recalls the events that determined the course of politics in post-colonial India, sometimes reinforcing the “idea of India” and otherwise distorting that. The essays revolve around specific events and their consequences and the facts are placed in context and perspective to comprehend the times in which they are being recalled and re-presented. The series recalls the events on their anniversary, they do not follow a chronological order and are seen as moments in history.
On 12 June 1975, Justice Jagmohan Lal Sinha of the Allahabad High Court 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 a period of six years. The fact is the Honorable Judge could not have handed a different verdict as the law governing elections and the norms set for candidates had prohibited some of Indira Gandhi’s acts way back in January-February 1975.
Forty-six years later, recalling the event, as much as the Emergency imposed on 25 June 1975 for which the Allahabad High Court decision was the immediate cause, is indeed a business of history. History, after all, is about recalling the past from the concerns of the present and, seen from the perspective enunciated by Benedetto Croce on the discipline, Justice Jagmohan Lal Sinha’s decision of 12 June 1975 was historical.
Indira Gandhi was found guilty on the basis of Section 123 (7) of the Representation of the Peoples Act (RP Act), 1951 read along with Section 79(b) of the same. Raj Narain, whom she had defeated in that election, had laid these out among many other charges in his election petition filed on 27 April 1971. Shanti Bhushan, his lawyer, doggedly pursued these in the court process during the cross-examination of witnesses, let in documents/exhibits to establish his case during his arguments that ended on 23 May 1975.
The battery of lawyers who served Gandhi’s brief in this case as well as the leading lights in her inner circle – H.R.Gokhale, Mohan Kumaramangalam, Sidhartha Sankar Ray, Rajni Patel, to name only a few – ought to have conveyed to her in 1971 and on subsequent occasions that it would be an open and shut case against her. Section 123 (7) of the RP Act,1951 was unambiguous. Yashpal Kapoor, Officer on Special Duty (OSD) in the Prime Minister’s Secretariat, was a Government Servant although his engagement then was on contract; he had submitted his resignation on 13 January 1971 and the Gazette Notification of him being relieved was dated 25 January 1971. Similarly, according to Section 79(b) of the RP Act, 1951 as it read then, it was unambiguous and categorical that Indira Gandhi had held out herself as candidate as early as 29 December 1970. Section 79(b) of the Act read as follows then:
“Candidate” means a person who has been or claims to have been duly nominated as a candidate at any election and any such person shall be deemed to have been a candidate as from the time when, with the prospect, he began to hold himself out as a prospective candidate.
Among the documents let in by Raj Narain before Justice Sinha was the transcript of a press conference by Indira Gandhi at New Delhi on 29 December 1971 (Exhibit 132) where she emphatically denied speculation that she was shifting her constituency from Raebareli to Gurgaon. The petitioner’s counsel, Shanti Bhushan, had further established during the cross examination that she had made up her mind on that very day to contest from Raebareli and not from anywhere else. Thus, it was clear to Justice Sinha that she held herself out as a candidate from Raebareli as early as 29 December 1970, weeks before Kapoor had even submitted his resignation on 13 January 1971.
Though Indira Gandhi herself, during the cross examination, had sought a labored explanation that it was wrong to assume that she had emphatically stated her intention to contest election from Raebareli during the press conference, Justice Sinha went on to justify the assumption and conclusion that her reply was emphatic. He made this clear on 12 June 1975:
I have given my very careful and dispassionate consideration to the aforesaid reply given by respondent no. 1 during her cross-examination and I regret my inability to accept it. As I have already stated earlier, the question was put to the respondent no. 1 in a particular setting, namely that the opposition Government was in power in the State of U.P. and the leaders of that Government were saying that, presumably because of their being in power in U.P., the respondent no. 1 was changing her constituency from Rae Bareli. It was a sort of challenge and was conveyed to the respondent no. 1 in the Press Conference in the same form by a question put by some press correspondent. The emphatic manner in which the respondent no. 1 replied to that question, saying ‘No, I am not’ cannot under the circumstances be interpreted to mean anything except that she conveyed that whatever the opposition leaders were saying was not correct and that she was not changing her constituency. It also deserves consideration in this connection that at the press conference mention was made only of two places viz. Rae Bareli (the original constituency) and Gurgaon (as prospective constituency). No other constituency was either named or suggested. In that context the answer given by the respondent no. 1 could mean and convey nothing except that she is not changing her constituency and that she would contest election from Rae Bareli. (MANU/UP/0479/1975)
In short, Raj Narain was right to call Yashpal Kapoor’s engagement in the cause of Indira Gandhi’s election as corrupt electoral practice under Section 123(7) read along with Section 79(b) of the Representation of the People Act, 1951. The law was also unambiguous insofar as the maximum punishment for such an act: calling the election null and void and imposing a ban on the person held guilty from contesting any election for a period of six years. This, indeed, was the maximum punishment under the law arising out of disqualification. Justice Sinha, however, had the liberty accorded by law to restrict it to strictures, censures or any such measures even while holding her election null and void.
Folklore has it that the Judge decided to inflict the maximum punishment after he found himself pressured in the weeks after 23 May 1975 when the hearings concluded. Pressure, according to contemporary chroniclers, was supposedly exerted through a godman the judge was known to follow. Justice Sinha restricted dictating the judgment to his clerk and sat down writing himself the operative parts of the 258-pages-judgment to ensure confidentiality.
Indira Gandhi had long fancied herself with Jeanne d’Arc. Jawaharlal Nehru mentions this about his daughter in at least two letters to her. On 26 October 1930, he writes: “Do you remember how fascinated you were when you first read the story of Jeanne d’Arc, and how your ambition was to be something like her?” And once again, on 1 July 1932, he wrote: “You know something about Jeanne d’Arc, the maid of Orleans. She is a heroine of yours.” Indira Gandhi herself would state the following sometimes later: “All my games were political games; I was, like Jeanne d’Arc, perpetually being burned at the stake.’’
To explain Indira Gandhi’s acts in the immediate wake of the judgment as emanating from her inherent sense of insecurity and the persecution complex she suffered as a person is indeed valid given all that happened. Emergency was proclaimed late in the night on 25 June 1975, less than two weeks after Justice Sinha delivered his judgment and only a day after Justice V.R. Krishna Iyer, vacation Judge in the Supreme Court, declined Indira Gandhi’s appeal for an absolute stay on Justice Sinha’s judgment on 24 June 1975. However, Justice Sinha’s decision to inflict the maximum punishment can also be attributed to the ethical and moral standards that prevailed in the immediate wake of Independence. This meant that one occupying as high an office as the Prime Minister ought to be tested against the harshest standards by law as much as ethics and moral principles.
Indira Gandhi had won her election to the Lok Sabha from Raebareli in March 1971 with a large margin. Raj Narain of the Samyukta Socialist Party had polled a mere 71,499 while Indira Gandhi’s vote count was 183,309. The landslide win registered by her Congress party was indeed a mandate against the Grand Alliance of which Raj Narain was a leading light. But then, the compulsive litigant he was, Narain preferred an election petition on 27 April 1971, barely six weeks after the results were declared.
If Indira Gandhi had looked into the petition filed before the Allahabad High Court with some seriousness, she could have anticipated its outcome. In the aftermath of the win in the general elections, Indira Gandhi and the legal brains in her circle were determined to tame the higher judiciary. She had, after all, called for early elections on 27 December 1970 rather than wait until March 1972 in response to the Supreme Court’s decision on 15 December 1970, striking down her decision through a Presidential fiat to abolish Privy Purses as unconstitutional.
Indira Gandhi’s lawyers certainly did not expect Justice Sinha to decide the petition before him the way he did and also expected the case to drag longer than it did. They then filed a counter writ claiming that some of the crucial documents let in by Raj Narain were barred from being taken on record as they were privileged under the law. The writ, however, was disposed of by Justice K.N. Srivastava without much delay on 20 March 1974, the claims were dismissed and Justice Sinha was thus free to hold his Court and decide the main petition. (1974 SCC OnLine ALL 287)
If Justice Sinha’s decision on 12 June 1975 was restricted to holding her election to the Lok Sabha null and void, Indira Gandhi could have considered a response similar to hers in December 1970 when the Privy Purses Abolition Ordinance was struck down. She could have called it a conspiracy against her progressive measures and call for elections earlier than March 1976. This, however, was foreclosed by the fact that the Allahabad High Court judgment banned her from contesting elections for the following six years.
On 27 December 1970, Indira Gandhi took the opposition by storm when she addressed the nation on All India Radio announcing early elections: ‘Time will not wait for us. The millions who wait for food, shelter and jobs are pressing for action. Power in a Democracy resides with the people. That is why we have decided to go to our people and seek a fresh mandate from them.” And she did succeed in decimating the Grand Alliance in February-March 1971.
Things were not the same in 1975 except that elections were due in eight months and the opposition included the same set of men whom she had defeated earlier. The economic crisis at this time had several causes: a spike in Government’s expenditure due to the large number of refugees from East Pakistan to be taken care of; the war-time expenditure had begun to strain the foreign exchange reserves of the Government; along with the increased foreign exchange bill caused by the cartel formed by the Oil Producing and Exporting Countries (OPEC). This crisis happened in a context where Chief Ministers in the states, most of whom belonged to the Congress, were perceived to be corrupt or effete.
The economic crises had caused the Nav Nirman andolan in Gujarat from a mere spark that was lit by the boarders of a college hostel in Ahmedabad protesting against increased mess fees. This was followed by the student agitation in Bihar, led by Jayaprakash Narayan and widely known since then as the JP movement. In May 1974, There was also the single largest working class protest in independent India when railway workers struck work beginning on 4 May demanding higher wages and better living conditions. All these mobilizations, though localized, did precipitate into a battle between Indira Gandhi and Jayaprakash Narayan backed by the leaders of all those parties that opposed her since her ascendancy in January 1966. JP accepted Indira Gandhi’s challenge to rally forces against her in time for the general elections due in March 1976 and she knew that a snap poll, as in December 1970, was not an option for self-preservation. On 12 June 1975, she also received news of her Congress party losing elections in Gujarat to Janata Morcha, the instant coalition that the opposition had forged.
She then rested all her hopes on an absolute stay on Justice Sinha’s judgment by the Supreme Court. Indira Gandhi had drafted V.N. Khare as a lawyer, flown in to Allahabad from Srinagar on 12 June 1975. He pleaded before Justice Sinha that the judgment is put in abeyance on the ground that some time was necessary before the Congress party addressed the issue and elected another leader. The disqualification, he had argued, was that of the Prime Minister and some time was needed to elect another leader and save the nation from landing in a chaos. Justice Sinha held that the judgment will come into effect only after 20 days. In any case, Justice Sinha would have had to grant sufficient time for the defendant to seek an appeal in the Supreme Court as this is an accepted practice. The dictum in this regard is clear: while the power to stay is discretionary, the right to appeal is statutory.
Indira Gandhi had pleaded for time to save the nation from chaos and Justice Sinha was impressed upon that the time will be used to elect another Prime Minister. This was brought up in the Supreme Court by Raj Narain when Indira Gandhi’s petition seeking a stay on the Allahabad High Court judgment came up before the vacation judge Justice V.R. Krishna Iyer on 24 June 1975. Justice Iyer refused to entertain the plea on grounds that “the judicial approach is to shy away from political thickets and view problems with institutionalized blinkers on…’’ After the absolute stay was denied, the Prime Minister went ahead with invoking Article 352 of the Constitution by which the President may proclaim a National Emergency when convinced that the security of India is threatened by external aggression or internal disturbance and taking the cover provided by Article 359 of the Constitution whereby, when a National Emergency is proclaimed, all the fundamental rights stand suspended – thus preserving Indira Gandhi and her rule.
The Emergency proclaimed late night on 25 June 1975, the arrest en-masse of political leaders and anyone who spoke against the regime, the emaciation of the press and other measures were enough to tamper with the law before the five-judge bench of the Supreme Court would take up Indira Gandhi’s appeal against Justice Sinha’s judgment. Justice Krishna Iyer, as is the norm, referred the Special Leave Petition after issuing the interim order on 24 June 1975. The case was posted for hearing on 11 August 1975 before a five-judge bench comprising Chief Justice A.N. Ray and Justices H.R. Khanna, K.K. Mathew, Y.V. Chandrachud and M.H. Beg. The regime moved fast. Parliament was convened on 21 July 1975 when many from the opposition benches were held in detention. On 6 August 1975, the two Houses passed the Election Laws (Amendment) Act, 1975. Among the amendments, in Section 79(b) the definition of a “candidate” was changed: “‘Candidate’ means a person who has been nominated as a candidate at any election.”
The two Houses also gave retrospective effect to this changed definition. In other words, the regime ensured that the five-judge bench on 11 August 1975, would have to read Section 79(b) in a manner that the relevant date for testing Section 123(7) in the election case was 1 February 1971, the day Indira Gandhi filed her nomination papers from Raebareli, days after 25 January 1971, when Yashpal Kapoor’s resignation was accepted and notified in the Gazette. In other words, even while Justice Sinha was right in his reading of the law as it stood when he heard and decided the case on 12 June 1975, the same reading would turn untenable in the eyes of the law on 11 August 1975 when the five judges of the Supreme Court decided the appeal against the High Court decision.
This was not all. The Constitution (Thirty Ninth) Amendment Act, 1975 was passed with as much ease and hurry. It was introduced and passed by the Lok Sabha on 7 August 1975 and by the Rajya Sabha the following day. Several state governments ruled by Congress convened special sessions of their assemblies on Saturday 9 August 1975 to endorse the amendment and the Presidential Assent arrived on 10 August 1975. The amendment inserted Article 329A to the Constitution by which the higher judiciary was barred from entertaining election petitions where the dispute involved the election of a candidate who would become Prime Minister or Speaker of the Lok Sabha.
The Constitution (Thirty Ninth) Amendment Act, which Indira Gandhi resorted to as a measure of abundant caution before the apex court took up her petition, was struck down by a 4:1 judgment (Justice M.H.Beg being the lone dissenter to uphold the amendment) and thus left her position exposed; in other words, the petition against her election in 1971 was subject to the court’s scrutiny. However, the Supreme Court Bench, on 7 November 1975, quashed Justice Sinha’s 12 June 1975 verdict and found all was well insofar as Indira Gandhi’s election to the Lok Sabha in March 1971 was concerned.
Justice Sinha’s decision on 12 June 1975 was frustrated by the regime’s imposition of the Emergency on 25 June 1975 and by using the conditions that the Emergency provided to tamper with the law thus ensuring Indira Gandhi’s own self-preservation for 19 more months. The unfolding of events triggered by the historical decision of 12 June 1975 culminated in the defeat Indira Gandhi and her party suffered in March 1977 as much as in the lesson learnt from these. Constitutional democracy, as it is, cannot be taken for granted and the Constitution, as much as it is a bulwark against forms of dictatorship, can also be reduced into an instrument to its own undoing.
You can read the other essays in this series here.