By Akshath Indusekhar

ABSTRACT:

Among countless cases that have shaped Indian jurisprudence, the cases during the tumultuous period of the 1975 emergency, including that of Indira Gandhi v. Raj Narain, have been forever etched in history. A landmark, unprecedented constitutional law judgement reiterating democratic ideals, the case had resounding implications on the declaration of constitutional emergencies in India and, prominently, the scope of constitutional amendments and the amenability of the “basic structure of the Constitution, as first propounded in the Kesavananda Bharati case. At the heart of the matter lay allegations of electoral malpractices and misuse of official power, crystallising a crisis that would test the constitutional fabric of the world’s largest democracy. The Allahabad High Court’s initial decision to void the election set in motion a chain of events that unfolded during a period of internal strife, ultimately leading to the imposition of the National Emergency. This commentary critically examines the facts, issues and judgement of the Court, that not only had profound implications for the legal and political landscape of the time but also established enduring principles in safeguarding the democratic ideals enshrined in India’s Constitution.

FACTS:

During the 5^th Lok Sabha elections of 1971, the then PM Indira Gandhi secured 352 out of 518 seats, emerging triumphant against Raj Narain, in the Rae Bareli Constituency, who then filed an election petition before the Allahabad High Court. Narain challenged the result on various grounds, such as electoral malpractice and abuse of official power. The Allahabad High Court, on 12/6/1975, allowed the election petition, declaring the election void on the basis of procuring assistance from various officials including a gazette officer, use of government expenses/machinery in campaigning, in addition to the commission of several other corrupt practices under Section 123(7), the Representation of People Act (hereinafter ‘RPA’).

Having received an unconditional stay order on the judgement by J. Krishna Iyer, allowing her to continue as PM but restricting participation in the House and remuneration, Indira Gandhi filed an appeal before the Supreme Court. This was while proclaiming an emergency, citing ‘internal disturbances’, a period of severe repression of fundamental rights and the arrest of several opposition leaders. Meanwhile, the amendment to the RPA(1974), the Election Laws(1975), and the 39^th amendment to the Constitution was passed, in the absence of certain members of the opposition, the contents of which will be indicated subsequently, appearing to categorically negate the Court’s judgement on the election. A counter-appeal was filed by Raj Narain and the petition dealt with several aspects surrounding the election, with this analysis specifically focusing on the validity of the Constitutional Amendments in question.

ISSUES:

• Whether the 39^th amendment to the Constitution and the resultant Article 329A, rendering the election in question as valid, was constitutionally sound?

• Whether the acts in question, including the RPA and Constitutional Amendment, were passed with exercise of the due process?

• Whether the election of Indira Gandhi could be rendered void and the validity of the allegations of electoral malpractice?

RELEVANT CONSTITUTIONAL PROVISIONS:

Article 329-A, the provision in question, inserted by the 39^th amendment, prevented the election of a Prime Minister or Speaker from being called into question, except for the manner/authority prescribed by any law providing for resolution of the disputes in question. Such laws were made immune to judicial scrutiny and insulated from questioning by courts. The subsequent clauses also granted the provision retrospective effect and prevented declaration of the elections to either house of parliament as void by way of election petitions. Notably, sub-clause (5) disposed of pending appeals/cross appeals before the Supreme Court and the 39^th amendment included various enactments including the RPA leading the list, under the 9^th schedule, as immune from judicial scrutiny.

Article 368 of the Constitution deals with the power of the parliament to amend the constitution and prescribes a detailed procedure. Therefore,Sub-clause (4) prevents constitutional amendments from being called into question in any court, on any ground.

JUDGEMENT AND ANALYSIS:

In answering the broad issues in the case, the Court held that, firstly, the validity of the amendments to the Election Laws Act and RPA could not be challenged based on several MPs’ detention during the passage of the amendment. Secondly, that the appellant was not guilty of taking assistance from a government servant and the ‘wrongful usage of government machinery’, not amounting to a ‘corrupt practice’ as it was prior to the declaration of candidacy in the first place. Thirdly, that the provisions of the Election Laws (amendment) Act and the Representation of People Act, were not unconstitutional. Aside from other valuable inferences in an extremely dense judgement, perhaps most prominently and finally, that the 39^th amendment, to Section 329-A of the Constitution, in sub-clauses (4) and (5), was unconstitutional and ought to be struck down; for the purposes of brevity, this analysis shall focus on the last question, on constitutional amendments.

The constitutional bench of the Supreme Court, deriving its judgement from a plethora of precedents, most prominently the basic structure doctrine, analysing adjudicative facts and legal provisions, maintained that Article 329-A was affront to principles at the very core of the Indian constitution and polity. It was emphatically invalidated due to the violation of vital elements of the democratic setup such as free and fair elections, as an ‘arbitrary, calculated damage to the rule of law’. 

The ability of the Parliament to amend the constitution was not, by any means, unlimited and was subject to restriction and the vicissitudes of a provision, Art.329A, that attempted to directly counter the judgement of the High Court was promptly resolved by the passage of the 42^nd Amendment Act, 1976.  This naturally begs the question, how did the Supreme Court go about this, in the first instance of the election of an Indian Prime Minister being challenged, and the first invocation of the basic structure doctrine by the Court, since the landmark Kesavananda Bharati judgement. The judges began by unequivocally accepting the validity of the judgement, the resultant doctrine and its applicability, by way of a detailed discourse on the constituents of the ‘basic structure’, elucidating upon various components such as rule of law, judicial review, democracy and free and fair elections, separation of powers and equality, among others.

The Court dealt with the scope of power granted and procedure stipulated by Article 368, allowing for amendment of the Constitution by way of addition, repeal, or variation of the Constitution. Duly appreciating the separation of powers between the judiciary and the legislature, Justice YV Chandrachud noted that the contents of the Constitution are not under the purview of the Court; the touchstone of validity is of whether the procedure under Article 368 is strictly complied with and secondly, whether the amendment is detrimental to the basic structure. As per Justice HR Khanna, the maintenance of the basic structure was a limitation inherent to the very phrase ‘amendment’ and after all, constitutional amendments did not fall within the ambit of “law” under Article 13. 

The violations in the impugned amendment were then analysed; Clause(4), Art.329(A), was shown to be violative of principle of free and fair elections, critical to a functioning democracy, as it abolished the forum for challenging the appellant’s election without presenting any alternative means, and unequivocally extinguished the remedy of challenge to the validity of Prime Ministerial elections. The amendment was an exercise of ‘irresponsible despotic discretion’ in the words of Justice KK Mathew, who also indicated the amendment as an outright negation of the right to equality guaranteed by Article 14, and hampered the scope for judicial review. Additionally delving into the instrumentality of the rule of law, it was highlighted that by retrospective amendment to the law was merely attempted to cement the appellant’s election by directly negating the provision, which rendered the appellant’s election invalid, affront to the constitutional spirit. By making the amending body an amalgam of all powers-judicial, legislative and executive, contrary to the basic tenets of the Constitution, J. Chandrachud emphasised that whatever pleases the emperor has the force of law is not a rule of democratic faith. 

Thus, the above judges categorically invalidated the constitutional amendment as violative of the basic structure doctrine, with Baxi noting that the other judges of the Bench, J.Ray, had similarly done so “with less openness” and J.Beg proceeding to suggest “simply amending the amendment”.

However, while the impugned provisions of Article 329-A were deemed to be invalid, the validity of the RPA amendment, and more prominently, the election of Indira Gandhi was upheld and the allegations of electoral malpractice were quashed in their entirety, after a detailed exposition into their substance. 

CRITICAL ANALYSIS:

To appreciate the implications of the judgement, one must situate the case within the prevailing socio-political climate at the time. The Supreme Court had long found itself in a precarious predicament, during the executive’s ‘war of attrition with the judiciary’, amidst the tussle involving the 25^th amendment to the Constitution and the back-and-forth involving judicial pronouncements and legislative enactments culminating with the basic structure doctrine embodied in the Kesavananda Bharati case. After the High Court’s verdict in the Raj Narain case, the declaration of the state of emergency to ‘quell internal disturbances’ and the chilling effect of fundamental rights that soon followed merely complemented the eventual passing of an amendment to firmly cement the position of the regime. The rationale to the 39^th amendment, that stood under trial, leaving the Court with no choice but to declare the elections as valid by way of parliamentary powers; as Professor Baxi puts it, “In no mood to take a chance, Article 329A (4) of the amended Constitution was a “let-you-know just in case” kind of note by the regime, addressed to the Court.”

Although the judgement formed a remarkable, repeatedly cited precedent by placing necessary, albeit basic restrictions on legislative competence, the judgement is not without its critics, especially for the validity of elections being upheld. Although the repercussions of the amendments were swiftly resolved, the rationale for the HC’s judgement holding the PM guilty of electoral malpractice has been concurred with by subsequent scholars, as the SC may have taken an overly strict interpretation of the letter of the law in determining the allegations of corruption under the RPA. While the question of these allegations themselves forms a separate debate, the flagrant misuse of constitutional machinery, all the way from the declaration of emergency, the obliteration of fundamental rights and the use of constitutional amendments to crack the whip against judicial pronouncements to reiterate the power of the ruling party are infuriatingly affront to and almost belittling constitutional provisions and powers. On this front, the SC delineated the powers conferred and the adoption of the basic structure doctrine to limit amendatory power of the Parliament in the subsequent Minerva Mills case. By preventing the flexibility of the sacrosanct Constitution to the whims and fancies of the regime in power, the Supreme Court forever recast Indian jurisprudence, with lasting impacts on the political powers, as maintained by free and fair elections in a functioning democracy.

Author’s Bio

Akshath Indusekhar is currently pursuing his third-year, B.A. LLB at the Jindal Global Law School. His areas of interest include public international law, corporate/commercial law, international trade law, and investor-state arbitration, with international moot court experience and research experience to that effect.

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