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Monday, June 27, 2022

The Indira we must not forget

On her birth centenary, it is important to remember the dark period of constitutional history she presided over.

Written by ARVIND P. DATAR |
Updated: December 11, 2017 12:30:55 am
(Illustration: C R Sasikumar)

Several articles were written praising Indira Gandhi on her 100th birth anniversary. On such an occasion, it is customary to recollect only the good deeds done and avoid reference to anything unpleasant. This article is, therefore, being written after the celebrations have died down.

Between 1970 and ‘77, the damage done by Indira Gandhi and her party to the Constitution and constitutional values was devastating. It left the Constitution, in the words of Nani Palkhivala, “defaced and defiled”. It is necessary to recollect how perilously close this nation was to becoming a paper democracy.

Indira Gandhi commenced the aggressive path to socialism (that eventually led to financial ruin) with the nationalisation of the largest 14 banks by an ordinance in 1969. The Supreme Court upheld the nationalisation but struck down the absurd method of calculating the compensation that was to be paid. To make matters worse for the banks, this paltry compensation was then to be paid in bonds which matured after 10 years. This decision was unfortunately projected as an indication of the judiciary being pro-rich and against the poor. The Constitution was later amended to enable expropriation of property on payment of “any amount”.

The abolition of the privy purses was a constitutional betrayal and must rank as one of the most shameful episodes of our constitutional history. At the time of Independence, 555 princely states covered 48 per cent of the territory of undivided India and 28 per cent of its population. Few people remember that under the Indian Independence Act, 1947, each ruler had the option of either acceding to the dominion of India or Pakistan or continuing as an independent sovereign state. It was the herculean effort of V.P. Menon and Sardar Patel that persuaded the rulers to sign Instruments of Accession or Instruments of Merger. In return for surrendering their powers, Articles 291 and 362 guaranteed them a tax-free privy purse which was approximately one-fourth of what they had earlier earned.

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Most Congressmen were opposed to payment of privy purses, as most were seen as lackeys of the British. But Sardar Patel made a stirring speech in the Constituent Assembly on October 12, 1949. He asked members to realise that this was a small price to pay for the integration of India. He told them that the cash assets given by the rulers of Madhya Bharat were alone sufficient to cover the payment of privy purses to all princes. Therefore, to deny them their due would be a breach of faith.

However, the move to abolish privy purses continued after Independence. To the credit of Pandit Nehru, he rejected this proposal on the ground that the government should honour its promise. But Indira Gandhi’s tenure as prime minister displayed very little respect either for the Constitution or the judiciary.

The renewed attempt to abolish privy purses was perhaps prompted by several rulers who joined the Swatantra Party of Rajaji and also defeated several Congress candidates in the 1967 elections. A bill to amend the Constitution and abolish privy purses was passed in the Lok Sabha but defeated in the Rajya Sabha on September 5, 1970. At midnight, President V.V. Giri withdrew recognition of all rulers under Article 366 (22), thus reneging on the constitutional promise that honoured the commitment made by Sardar Patel to the princes. This move was challenged by several rulers including Madhavrao Scindia who, ironically, joined the Congress at a later date. The Supreme Court held that the derecognition was unconstitutional. Just nine days after this humiliating verdict, Indira Gandhi called upon the president to call for fresh elections. Riding on the “Garibi Hatao” slogan and a socialist agenda, she came back to power with a stunning victory and 350 seats in the Lok Sabha.

She then ruthlessly used this majority to pass several constitutional amendments. The 26th Amendment to the Constitution formally and finally abolished the privy purses. The shocking justification given to abolish the privy purses was that it was incompatible with an egaliatarian social order. There was not a single mention of the enormous efforts required to persuade the princes to be part of integrated India.

She also avenged the bank nationalisation verdict by the 24th Amendment enabling property to be confiscated on payment of “an amount” instead of “compensation”. The 25th Amendment had a startling proposition: If any law contained a mere declaration that it was to give effect to Directive Principles of State Policy, it could not be questioned in any court of law.

In 1973, the historic verdict in Kesavananda Bharati laid down that the basic structure or essential features of the Constitution could not be taken away by an amendment. For generations, democracy was saved by a wafer-thin majority of 7:6. Except for laying down the basic structure principle, all the other submissions of the Union of India were upheld. Angered by this verdict, Indira Gandhi went on to supersede three senior judges and made Justice A.N. Ray the Chief Justice of India. She clearly indicated that judges must toe the line of her government and did nothing to condemn the concept of committed judiciary espoused by Mohan Kumaramangalam and others. Any opposition to her views was twisted as an anti-poor or anti-socialism stance.

In 1975, Allahabad High Court set aside her election and this eventually led to the Emergency. With the entire Opposition in jail, her constitutional rampage continued. The 39th Amendment to the Constitution was to ensure that elections of the president, vice-president, prime minister and speaker could not be questioned in any court of law but before another forum prescribed by Parliament. Further, any judgement that set aside the election of any these four functionaries was deemed to be void and all elections of these four functionaries were always to be deemed to be valid in all respects. This amendment was held to be violative of the basic structure and struck down.

Equally shocking was the 41st Amendment Bill which prohibited any civil or criminal proceedings against the president, vice-president, prime minister and all governors. Thus, any person who committed a serious crime could become immune from any criminal action if he held the office of governor for just one day. If the power of Parliament had not been fettered by the basic structure, this would have become law.

All the amendments made to the Constitution during her term pale into insignificance by the 42nd Amendment that was again introduced during the Emergency. The centre-piece of this amendment was to severely restrict the Supreme Court and the high courts of their powers to strike down any legislation which was ultra vires the Constitution. Fundamental rights were made subservient to Directive Principles. Finally, this amendment provided that all constitutional amendments made either before or after 1976 could not be challenged in any court of law and that Parliament would have “no limitation whatsoever” to amend any part of the Constitution. The Amendment Bill justified this constitutional assault as measures “to achieve the high ideals of socialsm, secularism and the integrity of the nation”. The eminent jurist, H.M. Seervai, termed this amendment as a constitutional outrage. Mercifully, the Janata Government came to power in 1977 and most of the appalling changes were undone by the 44th Amendment.

Her intolerance of any adverse verdict from the judiciary was once again manifested by the suppression of Justice H.R. Khanna. His dissenting judgement in the ADM Jabalpur case cost him the office of chief justice. The Emergency also saw transfers of 16 high court judges perceived to be independent. Seervai points out that the names of 40 more judges, who were proposed to be tranferred, were “deliberately leaked in order to shake the nerves of the high court judiciary”.

Indira Gandhi’s birth anniversary also marks the 40th anniversary of the end of the Emergency. The Constituent Assembly completed the task of drafting the longest constitution for the largest democracy by 1949. Just over 25 years later, the amendments made by Indira Gandhi would have left it in tatters.

In the end, the judges of the Supreme Court and the high courts and the efforts of eminent counsel, particularly Palkhivala, prevented this catastrophe. On her birth centenary, it is equally important not to forget this dark period of our constitutional history.

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The writer is a senior advocate.

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