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When the bench buckled

Emergency did not spare the Supreme Court because the tides of history do not pass judges by

Written by T. R. Andhyarujina |
Updated: July 8, 2015 12:03:59 am
 emergency, 40 years emergency, Indira Gandhi, Indira gandhi emergency, Supreme Court, Krishna Iyer, Emergency law, Indian express, express column The supersession of three judges and Ray’s appointment caused a tremendous agitation in the legal community.

The Supreme Court of India did not escape the oppressive atmosphere of the Emergency. Its functioning in several respects became a matter of grave concern. Only two judges stood out as strongly independent — Justice H.R. Khanna and Justice V.R. Krishna Iyer.

Even before the Emergency was proclaimed, the SC had come under a cloud because of the supersession of three senior judges after the declaration of the majority judgment in the famous Kesavananda Bharati case. The judgments of the 13-judge bench were delivered on April 24, 1973. The majority judgments of seven judges held that Parliament had no power to alter “the basic structure of the Constitution”. Six other judges, headed by Justice A.N. Ray, held that there were no restrictions on Parliament’s power to amend the Constitution. Then Chief Justice of India (CJI) S.M. Sikri, who headed the majority judgment, was to retire the next day. Coming to know of the judgments in advance, the government disregarded the seniority of three judges who had been part of the majority — Justices J.M. Shelat, K.S. Hegde and A.N. Grover — for the appointment of the next CJI, and appointed Justice A.N. Ray the next day.

At a dinner hosted by the SC gazetted staff on April 25 in honour of retiring CJI Sikri, he told Ray, “You will rue the day you accepted the chief justiceship.” The supersession and Ray’s appointment caused a tremendous agitation in the legal community. He was considered a judge inclined to decide in favour of the government, as he had done in the bank nationalisation and privy purses cases. This was the prevailing atmosphere in the judiciary when the Emergency was proclaimed two years later.

In this climate of tension, an unexpected development took place on June 12, 1975, when Justice J.L. Sinha of the Allahabad High Court held PM Indira Gandhi guilty of two corrupt electoral practices under the Representation of the People Act and disqualified her from contesting elections for six years. The Allahabad HC’s decision was made when the SC was on vacation and Justice Krishna Iyer was the vacation judge before whom an urgent application for a stay of the HC judgment was to be made. Within a short time of the HC judgment, then Union Law Minister H.R. Gokhale sought to meet Justice Krishna Iyer at his residence. The judge asked about the purpose of the meeting. Gokhale said the government would file an appeal to seek a stay on the Allahabad judgment. Justice Krishna Iyer declined to meet him.

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In a day-long hearing on June 23, 1975, before Justice Krishna Iyer, Nani Palkhivala, appearing for Indira Gandhi, pleaded for an immediate unconditional stay on her disqualification in the national interest. The next day, June 24, Justice Krishna Iyer, in a written judgment, declined to grant a total stay. But by a conditional order, he allowed Indira Gandhi to attend Parliament as a member and PM without a vote, pending the final decision in the election appeal. Eminent jurist H.M. Seervai considers this decision as the finest hour of the Supreme Court. But it was considered an affront to the prime minister by her advisors. Its immediate effect was the proclamation of Emergency, signed by the president, at midnight on the same day. The Emergency was proclaimed early on June 26, the next day.

The government made desperate efforts to validate Indira Gandhi’s election. While the appeal was pending in the SC, Parliament was made to enact the Constitution (39th Amendment) Act, 1975, inserting Article 329A by which a dispute about a PM’s election was retrospectively taken out of the jurisdiction of the courts. Simultaneously, Parliament was also made to pass the Election Laws (Amendment) Act, 1975 — an ordinary legislation by which the electoral offences for which Indira Gandhi was disqualified by the Allahabad HC were retrospectively nullified. On November 7, Indira Gandhi’s appeal was allowed by the SC, but not on the basis of the Constitution (39th Amendment) Act, which was declared unconstitutional in view of Kesavananda Bharati. However, it was unexpectedly validated by the ordinary legislation amending the Representation of the People Act.

In the course of the hearing of Indira Gandhi’s appeal on October 9, suddenly, a bench of 13 judges was ordered to be constituted by CJI Ray to review Kesavananda Bharati. This move surprised even his own colleagues. One of them told Justice H.R. Khanna that, in the prevailing atmosphere of the Emergency, it would not be difficult for the government to get a favourable decision on the review it sought.

In the review by another 13-judge bench, Palkhivala reappeared to defend the majority decision in Kesavananda Bharati on the inviolability of the Constitution’s basic structure by any amendment. He had returned Indira Gandhi’s brief after the declaration of Emergency. In the most eloquent argument ever heard in court, Palkhivala prevailed upon the judges not to reconsider the majority view in Kesavananda Bharati. At the end of the second day of hearing, Justice Krishna Iyer was so impressed by Palkhivala’s argument that he told Justice K.K. Mathew that there was considerable force in Palkhivala’s submissions. It appears that Justice Mathew reported this to CJI Ray. The CJI believed that Justice Krishna Iyer had ganged up with other colleagues not to entertain the review. On the third day, November 12, to the surprise of everyone, the chief justice told the packed court, “This bench is dissolved.” In this manner, CJI Ray’s attempt to review Kesavananda Bharati during the Emergency failed and the “basic structure” doctrine survived for all times.

The SC’s most criticised decision during the Emergency was in the “habeas corpus case”. On April 28, 1976, a five-judge SC bench with the majority of CJI Ray, Justices M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati held, in a marathon hearing of ADM Jabalpur vs Shivkant Shukla, that by reason of the presidential proclamation of Emergency of June 25, 1975, the legality of detention orders, even if mala fide and without authority of law, could not be questioned. The SC decision set aside the contrary view taken by nine HCs. In the SC, Justice H.R. Khanna alone held to the contrary. His dissent cost him his appointment as CJI after Justice Ray’s retirement and Justice Beg was appointed instead. Justice Khanna came to be held in great esteem by the judiciary and the bar, and his portrait was put up in the SC.

The majority decision in the “habeas corpus case” was indefensible. After many years of vehement criticism, Justices Chandrachud and Bhagwati admitted that they were wrong to subscribe to the view that the citizen was helpless to move the courts during the Emergency. Thus, the Emergency had its effect on the Supreme Court of India. As Benjamin Cardozo, a famous judge of the US Supreme Court said, “The great tides and currents which engulf the rest of men do not turn aside their course and pass the judges by.”

The writer is a senior advocate of the Supreme Court, former solicitor general of India and advocate general of Maharashtra.

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