New Delhi, June 25 (IANS) Accounts about the struggle against Prime Minister Indira Gandhi’s Emergency do not do full justice to some intrepid lawyers – and some courageous judges – who suffered personally and professionally but did not stop fighting the bids to subvert the Constitution and the rule of law, says the daughter of the lawyer in the election petition case that started it all.
“The narratives of the Emergency focus on the role of politicians and some media figures, but do not bring out fully the role of lawyers – and a few judges. The unrest in the country and the JP (Jay Prakash Narayan) agitation are mentioned as reasons for the Emergency, but it was a legal case that set it off… when (PM Indira Gandhi) lost the case in the Allahabad High Court,” economist and editor Rama Goyal, daughter of J.P. Goyal who fought socialist leader Raj Narain’s election petition case in the high court and the Supreme Court, told IANS.
Apart from her father and other luminaries like Nani Palkhivala, C.K. Daphtary, V.M. Tarkunde, and Shanti Bhushan, who fought various Emergency-related provisions in courts, she notes that there were judges like Justice Jagmohan Lal Sinha of the Allahabad High Court, whose verdict unseated Indira Gandhi and barred her from contesting polls for six years, and in the Supreme Court, Justices V.R. Krishna Iyer of the Supreme Court, who granted her a conditional stay only, and H.R.Khanna.
Then there were various high court judges, who upheld fundamental rights, but were punished by not being confirmed as permanent judges or transferred to other places, she adds.
In a telephonic interview with IANS, Goyal, who has edited “Saving India from Indira: The Untold Story of Emergency – Memoirs of J. P. Goyal”, based on her late father’s papers, contends that the Emergency period should not be seen in isolation but as a part of the Indira Gandhi regime’s bid to seize the control of the judiciary.
Efforts for these began since the Golaknath case of 1967, on the extent of Parliament’s power to amend the fundamental rights enshrined in the Constitution, the election petition filed by Raj Narain challenging his defeat in UP’s Rae Bareli by Indira Gandhi in the 1971 parliamentary elections, and particularly, the Kesavananda Bharati case of 1973, where the apex court established the “basic structure” doctrine, placing a limit on the Parliament’s power to amend the Constitution, she said.
Supersession of Supreme Court judges in line to become the Chief Justice of India by their “pliant” counterparts was a major step in this direction, amid senior Congress politicians and ministers’ talk about a “committed judiciary”, she added.
“After the Kesavanda Bharati case, the government appointed Justice A.N. Ray as the Chief Justice of India, superseding Justices J.M. Shelat, A.N. Grover and K.S. Hegde.. Chief Justice Ray was beholden to Indira Gandhi and attempted to surreptitiously overturn the Kesavanand Bharati verdict,” Goyal said.
“This was not the only instance… Justice Khanna, who was the sole dissenting judge in the ‘Habeas Corpus’ case, was also superseded for the CJI’s post by Justice M.H. Beg, deemed close to the Nehru-Gandhi family and once even serving as Prime Minister Jawaharlal Nehru’s election agent,” she added.
However, Goyal told IANS that while the Kesavanand Bharati case and the ‘Habeas Corpus’ case, (ADM Jabalpur vs Shivakant Shukla case) where a Supreme Court constitutional bench, by a 4:1 majority, in 1976 ruled adversely on the question whether a writ petition under the Constitution’s Article 226 is maintainable for enforcing the right to personal liberty under Article 21 during a period of emergency, are landmark judgments, one more case deserves to be more known.
This was the case of I. Jagadeeswara Rao vs Union of India, where the then CJI Ray, in November 1975, surreptitiously sought to overturn the Kesavananda Bharati verdict by orally listing it before a special bench, without any reference being made to the apex court.
“This would have finished the ‘basic structure’ doctrine, allowing the government to amend the Constitution in whichever way they liked… change it even into a one-page version. However, senior lawyers, like my father and others like Palkhivala, Daphtary, Tarkunde, among others, got wind of it and planned their strategy accordingly,” she said.
The group of lawyers filed intervention applications for habeas corpus on behalf of (Emergency) detenus in Ambala (Haryana), and when the matter came for hearing before the apex court, so arranged that Palkhivala led the arguments.
“Palkhivala argued for a day and a half and at the end, Chief Justice Ray threw his hands up and said that “The case is up in the air’ and the special bench was dissolved,” Goyal said, who reports the episode in her book on the basis on her father’s recollections.
“It was a big victory… it was the case that saved Indian democracy,” she told IANS.
On how the Emergency had affected her and her family personally, Goyal said that her father, who had even organised a lawyers’ convention against supersession in the CJI’s post, was targeted and suffered adverse judgments in his cases.
“His practice suffered, there were financial problems, we had to shift houses, family friends in government service stopped visiting us, I suffered emotional turmoil… we even went underground at night, sleeping at different places as we apprehended that father could be arrested,” she said.
On the sterilisation excesses, she said a friend of hers from Haryana had told her that men, fearing being rounded up, visited markets dressed as women.
–IANS
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