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The 44th amendment ensured democracy’s survival in India: Shanti Bhushan

Shanti Bhushan, a senior advocate in the Supreme Court, represented Raj Narain in the case against then prime minister Indira Gandhi, accusing her of corrupt electoral practices. Photo: Ramesh Pathania/MintPremium
Shanti Bhushan, a senior advocate in the Supreme Court, represented Raj Narain in the case against then prime minister Indira Gandhi, accusing her of corrupt electoral practices. Photo: Ramesh Pathania/Mint

The senior lawyer recounts the events that led to the Emergency, the 44th amendment (to restore the Constitution to its pre-1976 status) and the situation in the country

New Delhi: Shanti Bhushan, a senior advocate in the Supreme Court, represented Raj Narain in the case against then prime minister Indira Gandhi, accusing her of corrupt electoral practices. The Allahabad high court on 12 June 1975 found Gandhi guilty and declared her election null and void. This led to the imposition of the Emergency. Bhushan went on to become the minister for law and justice in the Morarji Desai government that came to power in 1977. In an interview, he recounts the events that led to the Emergency, the 44th amendment (to restore the Constitution to its pre-1976 status) and the situation in the country. Edited excerpts:

You were closely associated with the events that led up to the Emergency. What was the situation like at the time?

Emergency in a way was the direct outcome of the election petition against Mrs Gandhi. It was filed in 1971 after the historic liberation of Bangladesh when even Atal Bihari Vajpayee called her Durga. That was the extent of Mrs Gandhi’s victory in 1971 and that victory had been challenged by us by filing that petition on behalf of Raj Narain.

To start with, the press and people were not interested in the case. It was only when Mrs Gandhi decided to appear as a witness in the Allahabad high court in early 1975 that it created a buzz in the whole country. When the arguments started, it is my impression that he (the judge) didn’t take the case seriously. It was on the second or the third day that the arguments began registering and his demeanour became grey.

By the time it concluded, I had a lot of confidence, I was not sure whether the judge’s courage would survive. On 12 June 1975, I was not in Allahabad. I was in Bombay for a case in the high court. I got a call from my brother in Delhi to inform me that we had won. It was big news. Suddenly, there was a wave in the country. The high court later gave a stay order and during the vacation they filed an appeal. But Krishna Iyer (a Supreme Court judge) granted a limited stay order and not a clean stay order as Mrs Gandhi wanted. In that time, Jayaprakash Narayan gave a call that she can’t continue and must resign. Mrs Gandhi felt the only way to prevent people from forcing her to resign would be to impose Emergency. It was an idea given to her by Siddhartha Shankar Ray (then chief minister of West Bengal), and Fakhruddin Ali Ahmed, President of India, signed it. The rest is history.

Were you targeted in any way after the Emergency was declared?

No, much to the surprise of people, because every leader was being arrested. My juniors were detained but I was not arrested. In fact, when I was in Bombay when Emergency was declared, many lawyers came to me to prepare a habeas corpus petition. To my mind, there could only be two reasons why I was not detained. One could be that our family had a very close association with the Nehru family. My father and mother were freedom fighters. Both of them had gone to jail. I had campaigned for Jawaharlal Nehru with Mrs Gandhi in Allahabad in 1957. It is true that we fell out in 1969 when the Congress split on the election of the president. At that time, I felt Mrs Gandhi was doing something wrong by trying to defeat her own party’s candidate. We parted company. The other reason could have been that after the Allahabad high court judgement, a sitting prime minister’s election being contested and her being disqualified for six years was an event of world importance. It was certainly a surprise to me and everyone else that once everyone was detained, why I wasn’t arrested, when in a way I was partly responsible for the Emergency.

What led you to take up the case?

In 1969, there was an ideological split (between the two families). She was not doing the right thing. I felt that I had to oppose something that was wrong; something she was doing in her self-interest and not in the interest of the country.

It has been 40 years since the Emergency. How do you look back at it?

The Emergency was an aberration in Indian democracy and people revolted against it and brought the Janata Party to power in a big way. The Janata government got the opportunity to amend the Constitution in spite of not having a two-third majority in the Rajya Sabha. I decided to invite the leader of the opposition of the Congress in the Lok Sabha and Rajya Sabha C.M. Stephen and Syed Mohammed, respectively. I told them that you amended the Constitution through the 42nd amendment during the Emergency. We are in power today and, in principle, we don’t want to take advantage of those provisions. They understood but were concerned about reversing their stand.

I called a two-day conference of leaders of all political parties in both Houses and discussed each and every provision of the amendment. The 44th amendment was enacted unanimously. That ensured that the conditions of the Emergency could not be replicated in the country. For instance, four years ago, during the Anna Hazare andolan, they could have crushed it if the 44th amendment hadn’t been enacted because the law as held by the Supreme Court was that during an Emergency the government can suspend Article 19 and 21.

In the 44th amendment, we included a provision that Article 19 and 21 could not be amended even during an Emergency. Similarly, they could not arrest anybody wrongly because habeas corpus would apply. So the things they (the Congress government) did in 1975 could not be done in 2011. The election of 1977 has never taken place anywhere—where the ruling party and a strong prime minister like Mrs Gandhi was able to secure only one out of 350 seats in north India. That is the lesson that every political party learnt—that they could not toy with the rights of the people. After 40 years, I have a sense of satisfaction that we ensured that the conditions of 1975 would not recur.

What was the situation in the country during the 21-month Emergency?

There was total censorship of the media. Nothing was allowed to come to the press. No critical statements to be made by anybody. Jayaprakash Narayan’s movement just died, it was suppressed. Nobody could think that someone could detain the likes of Jayaprakash Narayan or Morarji Desai. Other leaders like Vajpayee, L.K. Advani—anyone of any consequence in the opposition was restricted and put in jail. Ram Jethmalani had to flee abroad. The government and its officers could do anything to anybody and get away with it. There was no habeas corpus... Then Turkman Gate happened. Any police officer could detain anyone... There was so much abuse of power.

What about sterilization camps?

During the Emergency, there was a programme—compulsory sterilization camps. In fact, there were quotas for every government officer, teacher, etc.—they had to bring a specific number of people for vasectomy. In order to fulfil the quota, they brought anyone—old people, even students. Due to the strictness of the government, people were coming on time, punctuality had improved and trains were running on time. But a lot was wrong and affecting people. I would say that one good thing that the Emergency did was it restored power to the people. That is a good by-product of the Emergency.

Who would you hold responsible for the Emergency?

First, Mrs Gandhi herself. Second, Siddhartha Shankar Ray, who had suggested this measure. But primarily Mrs Gandhi because she was the only person who had power in 1975. She was the interested party because her honest response should have been to resign as soon as the Allahabad high court judgement came and propose somebody else from the Congress party to run the government while her plea was pending in the Supreme Court. If the appeal was decided in her favour, she could have come back. She could not take that risk because of Babu Jagjivan Ram. She felt if she resigned, then Babu Jagjivan Ram would be the natural choice to become the leader in her place. She knew his capacity would ensure that even if she succeeded in court, she would not be able to come back.

What about the role of Sanjay Gandhi?

Sanjay Gandhi at that time was totally undemocratic. He did not believe in democracy and only in the manipulation of power. He had some sort of a hold over Mrs Gandhi. Therefore, during the Emergency, it was not even Mrs Gandhi who was ruling, it was Sanjay Gandhi. Ultimately, Mrs Gandhi’s downfall would have to be attributed to him. She had a soft corner for him. But for his untimely death, he would have been her successor.

With censorship of the media, how were people kept informed?

I am told that the Intelligence Bureau gave a report to Mrs Gandhi that if she held elections, she would sweep them. They saw things in a superficial manner because people were not allowed to express themselves. So they were not able to gauge the mood. It went horribly wrong. Mrs Gandhi had decided to retire but it was the Janata Party leaders’ internal differences, particularly Charan Singh’s ambitions, that brought her back.

Forty years on, do you feel things have changed?

Things have changed in the sense that now every political party is scared of using powers against the people. The fact that we amended the Constitution to ensure those things could not be repeated, in a sense, ensured the survival of democracy. Today, parties are competing with each other on how they can secure the votes of farmers. Farmers’ issues have become the most important political issue in the country and between the Bharatiya Janata Party, Congress and other parties, everyone is vying for the support of farmers. Democracy has come to stay.

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