The Emergency, and how Indira Gandhi managed to destroy the spine of the Supreme Court of India
The date was 25th June, 1975. For the first time in the history of independent India, an Emergency had been declared, citing ‘internal disturbances’; a condition which has since been substituted with ‘armed rebellion’, to prevent a similar misuse of Article 352. But why did Indira Gandhi actually declare the Emergency?
The real reason was the case of Raj Narain.
In the infamous case of The State of UP V Raj Narain, the Allahabad HC found Indira Gandhi guilty of election malpractice, and subsequently, barred her from holding elected office for six years. Justice Jagmohan Lal Sinha was at the helm of this decision. More serious charges like bribing voters were dropped, but she was held responsible for using state machinery to favor her politically. The Times described it as “firing the Prime Minister for a traffic ticket”.
The celebrated lawyer, Nani Palkhivala, who then represented Indira Gandhi, prayed for a complete stay, submitting before the court that it could prove detrimental to the constitutional office of the Prime Minister of India. The judge, Justice Krishna Iyer, did not find merit in Palkhivala’s submission and instead granted only a limited stay, otherwise upholding the Allahabad HC judgment. Indira Gandhi was allowed to continue as Prime Minister during the pendency of her appeal. But Gandhi was at the peak of her power, and for her, insubordination like this was far from tolerable.
In the coming days, JP Narayan and Morarji Desai of the Janta Dal organized a sizeable rally in Delhi, and urged policemen to disobey any orders that were ‘unjustified’. Indira Gandhi seized the opportunity and declared it as an ‘internal disturbance’ worthy of serious measures.
On June 25th of 1975, the proclamation of emergency was signed by the then president, Fakhruddin Ali Ahmed. This was not preceded by any sort of cabinet meeting, which, even though not mandated by the letter of the law, was completely contrary to constitutional principles.
But was imposing the Emergency a sudden, rash decision?
The answer is no. Any declaration of emergency requires a comprehensive socio-legal as well as an administrative framework. The Shah Commission stated that Gandhi had a very close-knit group of advisors who had started the preparation for imposing the Emergency quite early.
● The time when Indira Gandhi destroyed the Supreme Court’s spine
During the 1980s, the judges of the various high courts, especially the Bombay High Court, had been more liberal in their values viz a viz the people who were detained under the provisions of the Emergency. These judges went so far as to allow the detainees access to their own food, cleaning supplies, medical aid as well as entertainment. But all of this was brought into jeopardy by a single decision of the Supreme Court, in the case of ADM Jabalpur V Shivkant Shukla.
Shivkant Shukla was detained in Jabalpur, by Additional District Magistrate, Kiran Vijay Singh. The Madhya Pradesh High Court had decided in favor of the detainee, and subsequently, the order was appealed by the ADM in the Supreme Court. This case is since known as the Habeus Corpus case. It was decided by a bench of five judges, namely Justices AN Ray (CJ), HR Khanna, YV Chandrachud, MH Beg, and PN Bhagwati. Surprisingly, only Justice Khanna dissented in this judgment. The Supreme Court set aside nine high court judgements, including the one by the MP High Court, which had ruled in favour of enforcement of Fundamental Rights during the Emergency.
The majority judges on the Supreme Court bench in the case concluded as follows: “In view of the Presidential Order dated 27th June, 1975, no person has any locus to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ, or order, or direction, to challenge the legality of an order of detention on the grounds that the order is not in compliance with the Act, or is illegal, or is vitiated by mala fides factual or legal, or is based on extraneous considerations.”
This effectively exhausted all legal remedies for detainees. Persons detained under the Emergency now had no hope for immediate legal recourse.
How exactly had Indira Gandhi managed to pull off such a landmark SC decision? To understand this, we need to go back to perhaps the most famous judgment in the history of the Indian judiciary: Kesavananda Bharati V State of Kerala, 1973. It is a very voluminous judgment, but in summary, the SC outlined the proper meaning of the doctrine of “basic structure” of the Constitution and defined it properly in the Indian context. It partially cemented the case law established by Golaknath V State of Punjab.
The Court stated that the Parliament had very wide powers to legislate, but this power was not unlimited: the basic structure of the Constitution (the definition of which has expanded with the years) cannot be amended. This meant that the Indira Gandhi-led Parliament would have a limited set of powers and the limit had been defined by the Supreme Court.
The Kesavanand judgment was delivered 7:6 — it was a wafer-thin victory. The six dissenting judges were: Ray J.; Palekar J.; Mathew J.; Beg J.; Dwivedi J.; and Chandrachud J. Curiously enough, three of these dissenting judges in the Kesavanand case, namely, Ray, Chandrachud, and Beg were a part of the majority in the Shivkant Shukla V ADM Jabalpur case.
Justice A.N.Ray, who was the senior-most judge in the dissenting opinion of the Kesavananda Bharati case was elevated to the Chief Justice of India in 1973, ignoring the custom of appointing the senior-most Supreme court judge as the CJI.
Hence, a timeline emerges, as follows:
24 April 1973: The case of Kesavanand Bharati is decided, which takes away a lot of legislative powers from the Parliament. The dissenting judges are Ray J.; Palekar J.; Mathew J.; Beg J.; Dwivedi J.; Chandrachud J.
26 April 1973: Just two days later, AN Ray is seemingly ‘rewarded’ by Indira Gandhi by being appointed as the Chief Justice of India, superseding 3 other more senior SC judges, namely, AN Grover, KS Hegde, and JS Shelat. This is an unprecedented move.
28 April 1976: AN Ray (CJ), YV Chandrachud, MH Beg, and PN Bhagwati once again favor Indira Gandhi by creating the ADM Jabalpur precedent. Khanna, once again, is the dissenter. Except this time, he is all alone.
While various High Court judges and Bars were busy in upholding Constitutional values, the Constitution itself was being murdered right at the gates of the Supreme Court of India.
Even today, the issues that led to the crisis of the Supreme Court have not been addressed. The selection process of judges continues to not be a very impartial one. The judiciary is rife with examples of widespread nepotism and favoritism. Almost all SC judges have had some sort of familial influence on the judicial system. The proposed National Judicial Appointments Commission, flawed as it might be, does provide some solutions, but the Supreme Court does not want to give up, ironic as it sounds, its independence.
