The Case That Shook India has been lying in my TBR list forever. After several weeks of a barren reading landscape (the last book I read was K. Hariharan's biography on Kamal Haasan), I decided to pick this up and it has been a joyride.
These are some highlights and the commentary that ran in my mind as I read the book. I will keep updating this page as I read, highlight and annotate more.
You can find some background to this book, the author and the "hero" of the book at the bottom.
Counsel read out the following passage from Justice Bhagwati’s judgment in Chawla’s case: ‘A small man’s chance is the essence of Indian democracy and that would be stultified if large contributions from rich and affluent groups are not divorced from the electoral process.’ Counsel submitted that this virtual abolition of the ceiling would convert democracy into moneycracy where only moneyed people would have a chance of sitting in Parliament.
It's shocking and fascinating how this very precise argument is now completely moot in light of all the electoral bonds revelations. Contesting elections are not only prohibitively expensive, but they're very much decked against the "small man" from the get-go unless the "small man" happens to be in a "big party". "Large contributions from rich and affluent groups" are not just not divorced from the electoral process, but they are very much and unshakably married to it at this point.
The author here would like to explain that in Kesavananda Bharati’s case which was decided in April 1973, the question before the court was whether the Constitution amending power of Parliament was plenary, and if not, what were its limits. The arguments in this case had gone on for four months before a Bench consisting of all the thirteen judges of the Supreme Court. Eleven separate judgments were delivered in this case which rendered the decision fairly ambiguous. Eminent jurists are still in dispute over the details of the majority view. The operative order, however, lays down that although the amending powers of Parliament are wide, they do not extend to damaging or destroying the basic structure or identity of the Constitution. Nine of the thirteen judges had signed the operative order; four judges, Justices Ray, Mathew, Dwivedi and Beg, had refused to sign it. This case also became controversial due to the fact that it led to the supersession of the three seniormost judges who had decided in favour of the majority view.
In most legal literature, the Kesavananda Bharati case is often cited when talking about the "basic structure" doctrine. So, having not done enough digging research into the case ever and only having seen it being mentioned in passing or in context in other literature (eg [Landmark Judgements That Changed India][landmarkjudgementsbook]), I had always assumed that that judgement was very definitive in the majority. It came as a surprise that there were eleven separate judgements; a constitutional bench writing so many judgements shows how many varied, nuanced differences had existed in the interpretation of that law among the judges and how important they felt those differences to be to write separate judgements.
Counsel argued that even if this amendment was not retrospective, it would still have the effect of destroying democracy in the country. He argued that as this amendment virtually abolished the ceiling on election expenses, it completely negated the small man’s chance of being elected to Parliament. He said that in a country like India, where most people were uneducated, money played a tremendous part in the election and unless this money influence was divorced from the election process, democracy would be a distant dream.
How relevant it is to this day. While as a passionate lawyer arguing a case that had — by this time in the book's chronology — come to be seen as the most important case in the country, Shanti Bhushan had to make dramatic and sweeping arguments (democracy would be a distant dream), it may not be so true that democracy is a distant dream (rather, a dynamic work in progress as it stands today). (That I have enormous suspicions on universal suffrage, and the basic structure of popular democracy is a different matter altogether).
Analysing Kapoor’s answers about the purchase of a house by his wife in the Golf Links area, Counsel submitted that it was extremely interesting that the wife of a person whose life’s savings were only Rs 20,000 wanted to purchase a house which costs more than Rs 4 lakh. ‘In the financial position in which Mr Kapoor legitimately should have been, his wife could not have even dreamt of buying that house. He, however, stated that his wife had purchased the house by taking loans of slightly more than Rs 1 lakh each from a bank, her mother and a friend. Mr Kapoor professed that he did not even know the conditions on which the loans were obtained, which is fantastic. As for Kapoor’s statement that he has seen this house only once, I wonder whether this is because the house evokes the memory of a shady transaction.’
I chuckled at the last sentence. This is not the only instance of Bhushan taking digs at the respondents.
And apparently, there were many lighter moments through the arguments and rejoinders.
Bhushan next analysed the oral evidence which had come in from both sides on this issue. Both sides had examined one pandit each. While the pandit examined by the petitioner maintained that the cow was a deity, the respondent’s pandit denied it. Bhushan humorously remarked, ‘Your Lordship will have to arbitrate between the two pandits, so you become a super pandit.’
Counsel went on to quote from a mass of religious texts which he had brought with him. He cited the Encyclopaedia of Religion and Ethics by Hastings which lists the religious symbols of Hindus. The cow is not mentioned in it. Counsel also dug out, from a Vedic scripture, the prescription of the sacrifice of a cow as penance for the sin of killing a Brahmin.
Justice Sinha (amidst laughter): Is it also vice-versa?
The background here is that the Election Commission had granted the use of a cow-and-a-calf symbol for Mrs Gandhi's Congress party, but a statute says a religious symbol cannot be used/granted; Bhushan and co. were arguing that because of the symbol's use, the election can be construed to be invalid from the start. Whether the symbolism of a cow was religious or not got the pandits involved in the case.
At one point, the respondent (Indira Gandhi's lawyers) started questioning some very basic tenents and foundations of the country's political structure.
Case in point: they argued that "democracy is not a basic feature of the Constitution."
Counsel quoted from the judgments of the seven majority judges in Kesavananda’s case to show that all of them had held democracy to be a basic feature of the Constitution. He said, ‘It does not even require a reading of the judgment to conclude that democracy is a basic feature. If democracy is not a basic feature, then what is?’ Holding a book on the Constitution in his hand, Bhushan said that perhaps the Attorney-General understood that book only and not the principles enshrined in it, to be the Constitution of India. ‘Perhaps he feels that the basic features of our Constitution are the binding and the printing of this book; and not the principles laid down in it.’
Worth noting that at this point, the AG gets involved because the case went from election corruption (in the Allahabad HC) to a constitutional amendment issue (in the SC).
The judgment was almost completed by 7 June. Around that date, Justice Sinha got a phone call from Dehradun. It was the Chief Justice of Allahabad calling. Justice Sinha had to talk to him. The Chief Justice said that the Additional Secretary of the Home Ministry, P.P. Nayar, had met him and he wanted the judgment to be postponed till July. This was probably because of Mrs Gandhi’s planned visit to Mexico for the International Women’s Year Conference. She probably wanted to be in India when the judgment came. Justice Sinha was angry at this request. After telling the Chief Justice that this was not possible, he immediately drove down to the High Court, to order the registrar to inform the parties and the press that the judgment would be delivered on 12 June. The parties were informed. Bhushan was in Bombay when the news reached him. Commenting on the date chosen by the judge, he said, ‘It is a singularly appropriate date for the judgment. I think the judge had chosen this date because of the Gujarat elections. The polling will be over on 11 June; the counting starts on 12 June. So the judgment will come after the polling is completed, and before any result is declared. Whichever way the judgment goes, nobody can now accuse him of influencing the polling or being influenced by the results.’ This analysis was penetrating. As I found out later, this was indeed the real reason why Justice Sinha had chosen that date.
Counsel next contended that the stay obtained by Mrs Gandhi from the High Court had been misused by her and, therefore, this court should not respond to her plea. ‘The High Court had given a stay on a particular representation made by the appellant. The representation was that a sudden exit of the Prime Minister would create a void in the country which would bring the work of the government to a standstill. The stay was given because of the plea that some time was required by the Congress party to elect a new leader. But we find that the Congress parliamentary party met on 18 June and all that they did was to express full confidence in Mrs Gandhi’s leadership. Was it not incumbent on Mrs Gandhi to ask her party to elect a new leader in her place? It is no argument to say that the party only wanted her and no one else as the leader. I submit that it is impossible for the party to force her to remain the Prime Minister.’
The brazenness with which Mrs Gandhi was operating at this point was a lot more than 'out in the open'.
In reply to Bhushan’s arguments that the appellant had not abided by the representation made in the stay application in the Allahabad High Court, Palkhivala said that the application presented to the trial judge was drafted hurriedly by the counsel present there and therefore was not properly framed. ‘Moreover, the application asked for time to elect a leader of the Congress party. The Congress parliamentary party met on 18 June and passed a thunderous resolution affirming support for the appellant and recognizing her as the only leader. The representation does not say that the Congress party will elect a new leader.’
Ha, law-point via syntax!
And then comes this chilling description of textbook moves towards a dictatorship of sorts. The emergency begins:
It was just past midnight of 25 June 1975. The city of Delhi was resting after witnessing another day of intense political activity. But this night, the streets of Delhi were witnessing another strange kind of activity. Police cars in hundreds were moving purposively in search of their prey. A plan which had been hatched by Mrs Gandhi to hold on to power was being put into effect. About twenty-eight years ago while the world slept, India had awakened to freedom. This fateful night, free India was sleeping in oblivion as the country was being transformed from a working democracy into a police state. JP was asleep at the Gandhi Peace Foundation after an exhausting day when the midnight callers came. He was shaken from his sleep and told that the government found his freedom prejudicial to the security of the State and that he was being detained under MISA. Before he was taken away, JP made one last comment. Obviously referring to Mrs Gandhi, he said, ‘Vinash kale vipreet buddhi’ (in the face of destruction reason deserts).
(Which has to be followed by the obligatory "national security is threatened"):
The next morning Mrs Gandhi came on air to inform the people that the President had declared an Emergency to thwart the Opposition move to imperil the country’s security. The news of the Emergency and the arrests stunned the nation but there were no signs of public protest. What had happened was so unexpected that fear of the unknown had gripped the hearts of the people.
At about 10 a.m. the same day, Palkhivala issued a press note saying that he was withdrawing from Mrs Gandhi’s case, because he was horrified by the arrests of JP and other Opposition leaders.
The exit still does not explain how an eminent legal mind like Palkhivala missed the dictatorial trait and chose to represent her. Not unlike Ram Jethmalani where legal nuance and human psychology are somehow divorced.
WaPo's "Democracy dies in darkness" was nothing. Back when ToI had a reputation:
The Bombay edition of the Times of India managed to insert a small, subtle news item in the obituary column to evade the eyes of the censor. The obituary said, ‘Died, D.E.M. OCRACY, mother of Freedom, and daughter of L.I. Berty, on 26 June 1975.’
It is interesting to note here that the proclamation of Emergency of 25 June was an exercise in futility. This is because the earlier proclamation (due to external aggression) had not been revoked. Thus from 25 June 1975, there were two Emergencies in operation. The only difference between these was a matter of words. While the first was due to a threat of external aggression, the second was due to a threat of internal disturbances. Thus, no further powers accrued to the government by virtue of the proclamation of 25 June. All that had been done could very well have been done without a second proclamation of Emergency. The proclamation of 25 June seems to have been a part of the shock tactics employed by Mrs Gandhi to overawe and subdue any opposition in one stroke.
Even amidst the whole emergency drama, Prashant Bhushan, in characteristic lawyer fashion, sheds light on this legal pickle.
Although [Shanti] Bhushan was clear about the grounds on which he would impugn the validity of the amendments, he decided to ask for another adjournment. Since an atmosphere of helplessness had been generated in the country by the introduction of these amendments, he reasoned that the court was extremely unlikely to go beyond a summary disposal of the case in Mrs Gandhi’s favour. He had reasoned that a few days would be needed for it to sink in the minds of the people that all was not over with the case and that the amendments could indeed be declared invalid by the Supreme Court. This would raise the hopes of the people which would, in turn, boost the morale of the Supreme Court.
And now for some meta-drama. SC hearings had been preceded by (apparent) exhaustive security checks that put a lot of lawyers in discomfort.
When the Supreme Court Bench assembled on 25 August at 10.30 a.m., Raj Narain was represented only by J.P. Goyal, while all the lawyers of the other side were present. This was so because the Bar Association’s resolution that no lawyer should attend the Chief Justice’s court had not yet been withdrawn, as they had not had time to meet after the concession of their demands. Bhushan had, therefore, decided not to go to court and Goyal was to plead for an adjournment, pending the withdrawal of the Bar resolution. He did so when called upon to argue. The Chief Justice, being in no mood to concede any further demands in this case, said that he would like to proceed with the case immediately. This provoked Goyal to give vent to his anger. He exclaimed loudly: ‘How can we proceed? Your Lordship, the Chief Justice, will have to give an explanation as to why all the members of the Bar were searched on 11 August. Even the lady lawyers were not spared. However, Mulla, a counsel of Mrs Gandhi, was not searched. The Chief Justice will have to give an explanation for this discrimination.’
Chief Justice: Behave yourself, Mr Goyal.
Attorney-General: That will be a contempt of court.
Goyal (violently): All right, punish me! Send me to jail. I am ready to face the consequences. But how can we proceed till the Bar Association resolution is withdrawn.
The Chief Justice was subdued. He explained, ‘You see it is such a difficult case for us. All of you should help us in our duty.’ At this juncture, Ashok Sen informed the court that the Bar Association meeting was scheduled to take place at 1 p.m. He said that he would inform the court of the decision arrived at after lunch and said that it would be convenient if the case was adjourned till then. The Chief Justice consulted his brother judges and agreed to adjourn the case till lunch.
Counsel then referred to his second ground of attack, that the amendment destroyed several basic features of the Constitution. He briefly explained what the basic structure theory meant. He said that the doctrine propounded in Kesavananda Bharati’s case was that Parliament could not amend the Constitution so as to destroy its identity. Illustrating this, Counsel explained: ‘Nowadays we hear a lot about transplants of various organs of the body. Suppose all the organs of a person’s body were transplanted and only a leg or a hand remained, could one say that it is still the same person. Suppose every part of my friend, Mr Goyal’s body was to be transplanted and only his thumb remained, would his identity remain the same? Could his wife still recognize him?’
Chief Justice (relieving his ire at Mr Goyal): Mr Bhushan, do you want his heart transplanted first or his brain?
Counsel: Everything, my Lord; his heart, his brain, his legs, his hands. Only the thumb remains. (Everyone, particularly the Chief Justice was enjoying himself.) It is not the bulk of the transplanted part which matters. Suppose a person’s brain were transplanted. A brain weighs . . .
Chief Justice: 64 ounces.
Counsel: So if these 64 ounces of a person’s body were removed, would his identity remain the same?
There you have it, folks. Ship of Theseus entered the chat.
Justice Mathew: You are arguing that both judicial review and democracy are basic features. Don’t you think that there is a certain inconsistency between the two? Parliament represents the will of the people and when the judiciary strikes down a legislation, don’t you think that is acting against the will of the people?
Counsel: A Parliament elected by the people on a certain issue might not represent the will of the people on another issue. Since a referendum on every issue is impossible, therefore the people acting through the Constituent Assembly placed certain injunctions on the powers of Parliament. They provided that Parliament could only exercise its powers in a certain manner and created a judiciary to keep the Parliament in check. Therefore, when the judiciary strikes down a legislation, it is really giving effect to the will of the people.
Mrs Gandhi's counsel arguing that the amendment only targets one election and is perfectly valid to do so.
Counsel: What I am submitting is that the amendment only excludes judicial review in respect of one election. Judicial review in other elections remains exactly as it was. And it is not as if it is the first time that an election has been validated. Elections have been validated ever since our Constitution came into being. The Representation of People Act, 1956 validated some six thousand elections. Apart from that, the Punjab Act of 1952, the Mysore Act of 1957, the Uttar Pradesh Act of 1971 and the Rajasthan Act of 1969, all validated elections. The Rajasthan Act of 1969 had validated a single election. This validation had been challenged but was upheld by the Supreme Court. How can the other side argue that the single election cannot be validated? Counsel also cited instances of England where statutes had validated elections, quoting from Halsbury’s Laws of England. Justice Mathew asked him to cite any similar instance in the United States. Counsel quoted from a book on the American Constitutional Law by Trasolini and Shapiro, which said, Actually, there have been numerous instances in our Constitutional history, when Supreme Court opinions have been overturned or reversed either by the Court itself or in some other manner.
In some junctures, arguments were bordering on the insanity. "Equality" was not a basic feature of the constitution, nor were fundamental rights.
Counsel strongly contested Bhushan’s submission that equality was a basic feature of the Constitution.
Sinha also submitted that fundamental rights were not part of the basic structure of the Constitution.
In regard to the rights to be exercised within the walls of the House, the House itself is the judge.’ In support of this proposition, Counsel quoted from May’s Parliamentary Practice which says, ‘It is the right of each House to be the sole Judge of the lawfulness of its proceedings.’ He also quoted a case of England in which it was observed: ‘It seems to follow that the House of Commons has the exclusive power of interpreting the status so far as the regulation of its proceedings within its walls is concerned.’ It was also observed, ‘where there is no legal remedy, there is no legal wrong’. Relying on this, Counsel submitted that since there was no legal remedy available to the detained Members of Parliament because of the suspension of fundamental rights, therefore it could not be said that their detention was illegal. Sinha cautioned the judges on the consequences of Bhushan’s arguments. He said, ‘The detention of Members of Parliament is by a statutory authority. It would be surprising if the statutory authority, by an order which might turn out to be illegal, could prevent the House of Parliament from assembling and functioning. It would mean that if a District Magistrate acting on his own arrested a Member of Parliament, the House would not be able to function.’ He further argued that these arrests have been made possible because of the proclamation of Emergency which was in force. ‘When an Emergency is proclaimed, Parliament has power to approve or disapprove it within two months. If Bhushan’s argument is accepted, then the Parliament cannot even assemble to withhold the approval of the Emergency and thus terminate the suspension of fundamental rights.’
"Where there is no legal remedy, there is no legal wrong." — probably the most convenient thing for flagrant flouting of ethics in a society.
However, the point about conjunction of Emergency and Parliamentary proceedings sounded, pun unintended, sound.
In the hands of the constituent body, there is no division between legislative and judicial power. A constituent power is different from legislative power and is a sovereign power.’ Counsel quoted some old cases in which the power of the native Indian princes to issue firmans (royal directives) had been upheld. Equating the constituent body to the erstwhile Indian princes, Counsel pleaded that no restriction could be placed on the constituent body’s power to exercise judicial authority.
Ambedkar turning in his grave?
He [Bhushan] quoted from the judgment of Justice Shah where he had said: The only forum under our Constitution for determining a legal dispute is the court, which is by training and experience, assisted by properly qualified Advocates, fitted to perform that task. A provision which purports to exclude the jurisdiction of the court in certain matters and deprive the aggrieved party of the normal remedy will be strictly construed. Counsel pleaded that according to a strict construction, Article 329(b) could not be interpreted to exclude the special jurisdiction of the Supreme Court under Article 136. ‘Your Lordships will have to see which interpretation is more reasonable: whether the legislature itself, which has a vested interest in the outcome of the election dispute, or the judiciary, which is an impartial observer, should have the ultimate say in election disputes.’
Opening his arguments Bhushan told the court that the validity of the election law amendments would depend upon their interpretation. He would advance his interpretations of the amendments and in case they were accepted, he would not challenge the validity of the amendments. He would only assail their validity if his interpretations were rejected by the court.
I found this very intriguing and from a psychological angle, very counter-intuitive. Pop-psychology speaks of getting the other party to "yes"es early on through agreeable, common-ground points, in order to reduce the friction to them agreeing with you on the contentious issue. Here, however, Bhushan is doing the exact opposite. He goes on to enumerate some radical interpretations that are designed to alarm the judges to disagreement — in order to get them to agree that the amendment is wrong.
The Bhushans
The book's author (Prashant Bhushan) is now more popular for the jan lokpal agitations spearheaded by Anna Hazare and also for the INR 1.00 fine he was charged to pay for contempt of court. Bhushan is otherwise known as one of the prominent legal minds, usually on the side that questions the establishment. He writes, in this book's preface, that he was witness to many of the proceedings and happenings and that the book is a summary from all the collated notes that had been painstakingly collected and processed during and after the events in the book.
The "hero" of the book, Shanti Bhushan, is Prashant's father, and another legal jambavaan of the bygone era. He led the cases, that started with an election fraud charge on the then-PM Mrs Gandhi and eventually culminated in the Supreme Court invalidating her election, making her lose her seat and therefore the prime-ministership, anticipating which she descended the country into the two dark, infamous years of the Emergency.