Pranab Mukherjee’s book glosses over an important development of the seventies: The capitulation of senior judges of the country’s highest judiciary, in the run-up to and during the Emergency years
President Pranab Mukherjee’s book, The Dramatic Decade: The Indira Gandhi Years, provides a fascinating account of Indira Gandhi’s rise, fall and rise, as well as of the Emergency (though he gives a sanitised version). But there was another institution that bent, crawled and fell all over during the 70s, only to somewhat redeem itself towards the end of the decade: The judiciary — the Supreme Court, no less. Barring a few honourable exceptions, judges of the country’s highest court became pawns in Indira Gandhi’s hands.
Had the apex court shown spine, perhaps Indira Gandhi would not have been emboldened to unleash what remains an unmatched dark chapter in independent India’s democratic history. In a day and age when the judiciary has come to our rescue on a number of occasions to ensure governance and ensure that scams did not get brushed away by the executive, it is important to focus (lest we forget) on the less glorious role it played in those years.
Contrary to belief, Indira Gandhi had set the ball rolling much earlier for what was to come by way of the Emergency. The trigger, if it can be called that, was the famous Kesavananda versus State of Kerala verdict of April 24, 1973, a full two years before the Emergency. Just for the record, the apex court Bench’s judgement ran into 800 pages, consisting of more than 4,20,000 words (according to a study quoted by noted lawyer Zia Mody in her book, 10 Judgements That Changed India). With a slim majority of 7:6, the Bench ruled that although Parliament had the powers to amend any part of the Constitution, it could not use this power to alter the ‘basic structure’. In other words, basic tenets of the Constitution could not be tampered with in the name of exercising Parliament’s right to amend. The verdict came a day before Chief Justice SM Sikri was to retire.
This was mid-1973, and there was then no ‘internal threat’ to the country. The Government of Indira Gandhi ought to have been glad over the assertion that the Constitution’s basic structure was secure. But there was something brewing in Indira Gandhi’s mind. Her Government moved swiftly to supersede not one, not two, but three judges, and appointed AN Ray as the Chief Justice of India. The only reason was that Ray had in the Kesavananda case voted in favour of the Government’s right to amend every part of the Constitution — even “defacing”, as Ms Mody says in her book, the basic structure. The three superseded judges quit in disgust. Ray was to play an important role later in Indira Gandhi’s grand scheme of things.
Soon after the Emergency came into being, Chief Justice Ray got into the act. He constituted a 13-judge Bench to review the Kesavananda verdict. Thankfully, following an outrage — which was commendable given that the Emergency was by then in full effect — the Bench was dissolved within two days of its formation.
Ray’s moment of ‘glory’ came a year later, in the Additional District Magistrate versus Shivakant Shukla case, otherwise known as the ‘habeas corpus case’. It was to decide the fate of one lawyer-activist who later donned the politician’s hat as well — Ram Jethmalani. Author Susan Adelman, in her comprehensive biography of Mr Jethmalani, appropriately titled, The Rebel, writes about the affair with a dash of drama. The case was to decide whether persons detained under the draconian Maintenance of Internal Security Act during the Emergency had the right to challenge their detention in the court. Mr Jethmalani was poised to enter prison as one of the Emergency’s prize catches, and it would help to know if he could challenge his detention if he were to be held. Ray headed the five-judge Bench which had Justices MH Beg, YV Chandrachud, PN Bhagwati and HR Khanna.
Barring Khanna, the others supported the Government’s position that the detained had no right to petition for habeas corpus. Mr Jethmalani’s appeal to the Bench that “it is not your job as judges to assist a phoney Emergency...” fell on deaf ears. One fundamental right was thus buried. Ms Adelman quotes then Attorney General of India Niren De as observing, “Even if life is taken away illegally, courts are helpless.” The truth is that “compliant” judges — as the author notes, made the apex court helpless even on something as crucial as Article 21 of the Constitution.
Ms Adelman quotes from a source to offer this interesting confession from De to Justice VR Krishna Iyer, later: “What was the agony in my soul, which gave me sleepless nightsIJ It was about my defence of the Emergency… I wanted the robes to rage against that violent view I propounded and come down on such Emergency inhumanity. But, to my surprise, barring Khanna, the other justices heard but did not furiously resist. I felt sad as a jurist but found success as Counsel.”
It would be needless to add that barring Khanna, the other judges on the Bench went on to become Chief Justices of India, although Khanna had been the immediate next in line to assume the mantle. Pangs of conscience came to visit at least of two of the ‘pliant’ judges in later years. Both Chandrachud and Mr Bhagwati apologised for their verdicts; Mr Bhagwati confessed, “I was there; I plead guilty. I don’t know why I yielded to my colleagues… It was an act of weakness on my part.”
Thus, many judges of the Supreme Court, barring honourable exceptions, had become Indira Gandhi’s handmaidens in the early seventies, until the Emergency was lifted and she lost in the 1977 lok Sabha election. The judiciary began to growl, no doubt, in the immediate post-Emergency months, but it was supine when it was most needed to be assertive. The same apex court, which had found nothing amiss in robbing the fundamental right of the detained to appeal against his detention, later threw out Indira Gandhi’s Forty-second Amendment Act of 1976, when it ruled in theMinerva Mills versus Union of India case. This time, the verdict was unanimous in striking down amendments to Article 368 — amendments which gave Parliament the sort of powers which the Kesavananda case had reined in.
There is almost nothing of this craven capitulation by the judiciary in Mr Mukherjee’s book. For some strange reason, though, he dwells upon a letter that Indira Gandhi had written to Chief Justice Sikri, seeking to allay his fears that the executive was trying to compromise the judiciary’s independence. Mr Mukherjee uses the instance to talk of the “strained relationship that existed between the judiciary and the executive”. And, this was in December 1971 — yet another instance of the meticulous planning Indira Gandhi had made early on to make the judiciary crawl.
