The Days Before The Emergency: The Court Case That Changed India
August 7th, 2017
Never in the history of independent India have we faced such a constitutional crisis as during the 21-month period between 1975-1977 when a state of Emergency was declared across the country. It was officially issued by President Fakhruddin Ali Ahmed on the recommendation of Prime Minister Indira Gandhi. It was done under Article 352 of the Indian Constitution because of “internal disturbances”.
The State of Uttar Pradesh v. Raj Narain was the 1975 case heard by the Allahabad High Court that found the PM Gandhi guilty of electoral malpractices. Ruling on the case that had been filed by the defeated opposition candidate, Raj Narain, Justice Jagmohanlal Sinha invalidated Gandhi’s win and barred her from holding elected office for six years. The decision caused a political crisis in India that led to the imposition of a state of emergency by Gandhi’s government from 1975 to 1977.
Mrs Gandhi was represented by the noted lawyer Nani Palkhiwala, Raj Narayan by Shanti Bhushan.
In his book The Case That Shook India, Prashanth Bhushan describes the court proceedings, their electric nature, their universal observance and their legacy. Here is an excerpt:
Mrs Gandhi arrived in Allahabad on 17 February. Until then the case had received very little publicity. Although the local newspapers were covering the significant events in the case (like the cross-examination of P.N. Haksar and Yashpal Kapoor), no one gave much importance to the case itself. They regarded it as a futile election petition filed by a poorloser, just to harass the Prime Minister. But with the cross-examination of Mrs Gandhi, the case exploded into the limelight.
It was a big event in itself. Never before had a Prime Minister of the country gone to a court to testify. The former President, V.V. Giri, had however once testified before the Supreme Court in his election petition. There were massive security arrangements outside the court that day. All the gates were manned by policemen and entry inside the court premises was restricted to lawyers and litigants accompanied by lawyers. Apart from these, only a few news reporters, pairokars (special attorneys who are acquainted with the facts of the case and who can help counsel in some aspects of the case), and pass holders were permitted inside the court premises. Entry inside Court No. 24, where the cross-examination took place, was severely restricted (Justice Sinha’s courtroom was Court No. 5, but Court No. 24 was chosen for the cross-examination because it was at one end of the court, and the restriction of entry around it would not hamper the working of other courts).
People had started pouring into the courtroom from as early as 9 a.m. that day. The security staff had installed a metal detector in the passage leading to Court No. 24 where the evidence was to be recorded. Just before the proceedings in the court were about to begin, a drama took place outside the court. A man carrying a plastic briefcase was apprehended by the security staff at the metal detector. His briefcase allegedly contained a loaded countrymade pistol. His name was Govind Misra and he was the editor of a two-page newspaper Vijay, published from Allahabad. The exact circumstances in which he was caught are still not clear, but the version of the security men was that he was carrying the pistol in his briefcase, when the metal detector picked it up. When he was interrogated, he revealed that for the past four months, he had always carried a revolver with him, as he feared violence from some enemies. He did not have a licence for his weapon but had applied for one. He was kept in police custody for a few days and later released as he was found to be harmless.
The Govind Misra affair however caused quite a sensation in Parliament. Accusations were hurled across the floor. Many legislators demanded a high-level probe into the matter and urged that the security arrangements for the Prime Minister be further strengthened. Meanwhile, Court No. 24 was completely packed by the time the judge arrived. Among those people who were present in the court were high ranking Opposition leaders like Madhu Limaye, Shyam Nandan Mishra, Piloo Mody, Jyotirmoy Bosu and Rabi Ray. They had come all the way from Delhi to witness the cross-examination. They had been cited as pairokars by Raj Narain. Among those present were also Mrs Gandhi’s son, Rajiv Gandhi, and his wife, Sonia Gandhi. Raj Narain himself was also present in the court. Earlier, when he had told Bhushan that he wanted to be present during the crossexamination, Bhushan had objected to it, knowing the volatile temperament of Raj Narain. He, however, reluctantly agreed to Narain being present when he undertook not to utter a word during the proceedings.
The judge arrived two minutes before 10 a.m. Everybody in the courtroom rose when the judge came in. After taking his seat, he announced that the court conventions dictate that no one should rise when a witness comes in. This however did not prevent some people from rising when Mrs Gandhi came in. Mrs Gandhi took a seat which was specially provided for her. The normal practice is that a witness stands in the witness box. The deviation from convention was made by Justice Sinha after consultation with Bhushan. Her chair was on a raised platform to the right of the judge so that she was on level with the judge. She looked composed and unruffled as she sat down. If she regarded the ordeal before her as something of great significance, she did not give the slightest indication of it. Her appearance was of one who was performing yet another routine task.
Khare was called upon to lead the examination, and he was visibly excited. He was the first person to question the Prime Minister in court. The main issues which could turn on Mrs Gandhi’s evidence were (1) whether she held herself out as a candidate prior to 1 February, and (2) whether Yashpal Kapoor actually resigned on 13 January. Khare’s questions were mainly focused on these issues. His examination lasted about an hour. It was now Bhushan’s turn. He was inwardly excited, though outwardly calm, when he got up to begin the task before him. It was a big event for him. Apart from the fact that he would be crossquestioning the Prime Minister, with the whole country watching at least through newspapers, he was also fully aware of the far-reaching political consequences of the outcome of this case. This crossexamination could be crucial to the outcome of the case. Most people who are not familiar with courts visualize a crossexamination as something dramatic where the counsel is supposed to give a theatrical display, Perry Mason style. Most cross-examinations are, however, incredibly dull where little happens in the nature of drama.
The cross-examination had not finished when the court rose that day. That evening, all the Opposition leaders who had come from Delhi to witness the cross-examination were invited for tea to Bhushan’s house. Opinion there was almost unanimous, that Mrs Gandhi had fared well on the first day of her cross-examination. She had maintained her composure and was convincing in the manner in which she had answered the questions.
Piloo Mody did not enjoy the cross-examination. ‘Why don’t you heckle her? Annoy her a bit!’ he told Bhushan. Bhushan smilingly remarked that on the first day, he had only given her the bait and made her feel confident. ‘Tomorrow she will walk into the trap,’ he said. Little did anyone know that he was indeed serious and was about to spring a surprise.
In the 21 months of the Emergency, 100,000 people were arrested and detained without trial. Every news report was cross-checked by the Government, hundreds of journalists were jailed, foreign reporters were deported, the Judiciary was silenced, and Government positions were filled by only those loyal to Mrs Gandhi. Several laws were rewritten without following the rules prescribed by the Constitution, billboards with Government propaganda were set up across the country and all forms of protests were banned.
India is famous for being probably the only country to have both a dynamic democracy and healthy economic growth. Almost all other countries which became free in the 20th century went through a period of civil war, military rule or political unrest. This is the reason why India’s success story is so important historically: unlike China we have regular elections, unlike Russia we never had a Communist central government, unlike the UK we never colonised another country and unlike the USA we never had the benefit of geographical isolation. Consequently, the fact that India’s long tryst with democracy has been so peaceful and progressive is an argument in favour of democracy.
It was this argument that was challenged in 1975.
India let the world know where she felt at home – in the arms of democracy. In the elections that followed in 1977, Mrs Gandhi’s party lost 217 seats, her Government fell, media was uncensored, thousands of innocent people were freed, and India was a functioning democracy again.
The Emergency is one of the most controversial periods of Indian history. It was a period when India ceased being India, and was reduced to a dictatorship. A lot can be learnt from this period but the major lesson is this: the Indian people clearly declared that democracy, free speech and freedom are non-negotiable entities, and any Government that tries to attack these entities would pay dearly.