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I was law officer No 3

I resigned when Emergency was imposed — to little effect. India’s intelligentsia rationalised the tyranny

Written by Fali S Nariman |
Updated: June 23, 2015 12:00:04 am
India Emergency, Emergency law, Indira Gandhi Emergency, India Emergency period, Supreme Court, Supreme Court Indira Gandhi, Indian express, express column June 28, 1975: blank lead edit in The Indian Express.

Are we Emergency-proof? No — no country can be emergency-proof with a majority government. Since all power corrupts, the fear of losing power corrupts absolutely. That is what happened in June 1975.

I was appointed additional solicitor-general of India on May 1, 1972. I had been practising then in Bombay for 22 years, and had to move to Delhi. I was reappointed for another three-year term from May 1, 1975, on the oral assurance of the law minister that the post would be upgraded soon — from July, he promised, there would be two posts for solicitor-general; the second would be for me. More grist to my ambitious mill. But “the best laid schemes of mice and men go oft awry”. And for me, they went totally awry — with the proclamation of Emergency of June 25, 1975. It was imposed only to offset the consequences arising out of a possible refusal by the Supreme Court (then in vacation) to accede to Indira Gandhi’s request for an absolute stay of the Allahabad High Court judgment. It was on June 12, 1975, that Justice Jagmohan Lal Sinha of the High Court of Allahabad pronounced judgment in the election petition filed against Gandhi, holding her guilty of corrupt practices, and disqualifying her from holding all public office (a statutory six-year disqualification).

I had read a copy of Justice Sinha’s judgment when it was brought to me by J.B. Dadachanji (then a household name among advocates in India). He was the advocate-on-record for Gandhi in the contemplated proceedings in the Supreme Court. There were several meetings and discussions about the judgment with the law minister, and with P.N. Dhar, the prime minister’s principal secretary. Indeed, at that time, hardly anything else was being talked about in government circles. The judgment was singularly weak in its reasoning and I mentioned this both to Dhar and to H.R. Gokhale, the law minister. I was then told that Gandhi had personally requested that I should vet the grounds of appeal, as also the stay application (to be filed in the Supreme Court), even after her own senior advocate, the distinguished Nani Palkhivala, had settled them. I was flattered. I went through the papers and suggested a few changes. On June 19, the verification paragraphs of the petition were also seen and approved by me. The filing of the petition of appeal was delayed for another day or two to select the most astrologically auspicious date! Palkhivala argued the stay application before the vacation judge, Justice V.R. Krishna Iyer, on June 22. The next evening, my wife and I left for a brief holiday to Bombay by the Rajdhani Express.

On the train, I read an item, tucked away in one of the inner pages of the Evening News: that morning, it said, the home secretary had been transferred and a new man from Rajasthan had taken over. A new home secretary in the government of India? And why so suddenly? Odd, I thought to myself, but then paid no further attention to it.

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In retrospect, it was apparent that preparations were then afoot, unknown to all but those closest to the prime minister, to make contingency plans in the event of an absolute stay being refused by the Supreme Court. Justice Iyer’s order was handed down on June 24, 1975: Only a conditional stay — no absolute stay. And “Operation Emergency” swung into motion.

From Bombay, as we called it then, on the morning of the June 27, I informed the law minister of my decision on the telephone. I then drafted, signed and posted to Delhi a one-line letter of resignation — there were no heroic passages in it. With the imposition of censorship, the news of my resignation was suppressed in the Indian press. But it was published in The New York Times. News of my having quit government permanently did not trickle down — not even to the judges. Two weeks later, in the middle of July 1975, when I appeared in the chief justice’s court in Bombay in a private litigation, on seeing me appear, I overheard Chief Justice R.M. Kantawala whisper to his colleague on the bench, Justice V.D. Tulzapurkar, that I had resigned as law officer. Justice Tulzapurkar, a fine and brave judge, told Justice Kantawala quite audibly (the chief justice was quite deaf in one ear), “I don’t quite know. I believe he has resigned in order to appear for Mrs Gandhi.” That was the rumour among the judges! An Emergency thrives on rumours.

The resignation of law officer number 3 made no impact, created no ripples, in the political waters in the capital. I was simply not important enough. Later, I remember telling my wife: “I wish, I sincerely wish, I was attorney-general on June 27, only for the reason that my resignation would then have had some effect.” The then high commissioner of Australia, a non-career diplomat who occasionally used to walk with us in the evenings at Nehru Park, told me not long after the Emergency that he had met Gandhi a couple of weeks after June 25, and she had expressed shock and surprise at the lack of reaction among the “intelligentsia”. She need not have been surprised. It is always the intelligentsia that has both the capacity and inclination to rationalise tyranny. And so it was in India.


Shortly after I resigned, I resumed private practice in the Supreme Court. Chandubhai Daphtary (former attorney-general) and Sunderlal Desai (senior advocate, former judge, now practising in the Supreme Court) were distinguished contemporaries, both Gujarati-speaking. They always came in early to the Bar library — each sat opposite the other, occasionally exchanging pleasantries, occasionally not. One morning in August 1975, I was the sole witness to the following conversation:

S.T. Desai: (holding a cigarette between his third and fourth finger in a loosely-clenched fist, as was his habit, occasionally inhaling): “Chandubhai, bolo (Chandubhai, speak)”.

C.K. Daphtary: (puffing at his pipe, his eyes sparkling with mischief): “Sunderlal, tame pehle bolo (Sunderlal, you speak first)”.


In those dark days, when informers were around, you only spoke within hearing of others, when you had to. Unwittingly, these stalwarts of the Bar encapsulated, in a spontaneous one-act play, the entire climate of the times.

The writer is a constitutional jurist and senior advocate to the Supreme Court.

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First published on: 23-06-2015 at 12:00:00 am
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